dismissed L-1A Case: Food And Beverage

U.S. Citizenship 
and Immigration 
Services 
MATTER OF K-C- LLC 
APPEAL OF VERMONT SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: APR. 5, 2018 
PETITION: FORM 1-129, PETITION FOR A 1\0NIMM !GRANT WORKER 
The Petitioner, a coffee shop and wine and beer bar, seeks to temporarily employ the Beneficiary as 
the president of its new oftice
1 
under the L' I A nonimmigrant classification for intracompany 
transferees. See Immigration and Nationality Act (the Act) section IOI(a)(l5)(L), 8 U.S.C. 
§ IIOI(a)(IS)(L). The L-lA classification allows a corporation or other legal entity (including its 
affiliate or subsidiary) to transfer a qualifying foreign employee to the United States to work 
temporarily in a managerial or executive capacity. 
The Director of the Vermont Service Center denied the petition, concluding that the record did not 
establish, as required, that (I) the Beneficiary had been employed in a managerial or executive 
capacity for the foreign entity: and (2) the new otlice would support a managerial or executive 
position within one year 0 r approval of the petition. 
On appeal, the Petitioner asserts that the Director ignored· the evidence that corroborates its 
assertions and contends that it has submitted sufficient evidence to establish eligibility for this visa 
classification. 
Upon de novo review, we will dismiss the appeal. 
I. LEGAL FRAMEWORK 
To establish eligibility for the L-1 A nonimmigrant visa classification in a petition involving a new 
otlice, a qualifying organization must have employed the beneficiary in a managerial or executive 
capacity for one continuous year within three years preceding the beneficiary's application for 
admission into the United States. 8 C.F.R. § 214.2(1)(3)(v)(B). In addition, the beneficiary must 
seek to enter the United States temporarily to continue rendering his or her services to the same 
employer m a subsidiary or affiliate thereof in a managerial or executive capacity. !d. 
1 The tenn '·new office·· refers to an organization which has been doing business in the United States for less than one 
year. 8 C.F.R. § 214.2(l)(l)(ii)(F). The regulation at 8 C.F.R. § 214.2(1)(3)(v)(C) allows a "new office'' operalion no 
more than one year within the date of approval of rhe petition to support an executive or managerial position. 
Malter of K-C- LLC 
The petitioner m·ust submit evidence to demonstrate that the new office will be able to support a 
managerial or executive position within one year. This evidence must establish that the petitioner 
secured sufticient physical premises to house its operation and disclose the proposed nature and 
scope of the entity, its organizational structure, its financial goals, and the size of the U.S. 
investment. See generully, 8 C.F.R. § 214.2(1)(3)(v). 
II. EMPLOYMENT ABROAD f:\1 AJ\ EXECUTIVE CAPACITY 
The Director denied the petition determining that the Petitioner's description of the Beneficiary's 
duties for the foreign entity was vague and thus insul'licient to establish that she primarily performed 
duties in an executive capacity, as that term is defined in the statute. 2 
On appeal, the Petitioner asserts that the foreign entity's description of the Beneficiary's duties is not 
vague. The Petitioner contends that the Beneficiary's foreign duties correspond to the duties of an 
executive as that occupation is described in the Department of Labor's Occupaliona! Oul/ook 
Handbook (Handbook) and in the Occupational Information Network Online (O*NET) Summary 
Reports. 
"Executive capacity" means an assignment within an organization in which the employee primarily 
directs the management of the organization or a major component or function of the organization; 
establishes the goals and policies of the organization, component, or function; exercises wide latitude in 
discretionary decision-making; and receives only general supervision or direction rrom higher-level 
executives, the board of directors, or stockholders of the organization. Section I 01 (a)( 44)(8) of the Act. 
When examining the executive capacity of a beneficiary, we review the description of the job duties. 
See 8 C.F.R. § 214.2(1)(3)(ii). The definition of executive capacity has two parts. First, the 
petitioner must show that the beneficiary performed certain high-level responsibilities. Champion 
World. Inc. v. INS, 940 F.2d 1533 (Table), 1991 WL 144470 (9th Cir. July 30, 1991 ). Second, the 
petitioner must prove that the beneficiary was primarily engaged in executive duties, as opposed to 
ordinary operational activities alongside the organization's other employees. See. e.g., Family Inc. ''· 
USCJS, 469 F.3d 1313, 1316 (9th Cir. 2006); Champion World, 940 F.2d at 1533. 
The foreign entity, described in the record as a "privately owned electricity distribution company," 3 
provided a broad description of the Beneficiary's duties, stating that she "[ s ]upervis[ ed] the staff of 
the administration and human resource department" and "[r]eview[ed] and ma[de] recommendations 
for improvement of company policies, procedures and practices on personnel matters." The 
2 The petitioner does not claim that the Beneficiary worked in a managerial capacity for the foreign entity. Therefore. we 
restrict our analysis to whether the Beneficiary worked in-an executive capacity for the foreign entity. 
1 The foreign entity describes itself as a "privately owned electricity distribution company·in Bangladesh providing a 
wide range of services including energy supply, pre-payment electricity metering system, automated/remole metering 
systems. [and] energy auditing and balancing." The foreign entity also says that it "supplies explosives, detonators and 
detonating cords, mining equipment, tools and materials for mining industries and exploration sector in Bangladesh." 
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Mauer of K-C- LLC 
Petitioner added that she maintained knowledge of industry trends, ensured compliance, and 
conducted recruitment efforts, as well as supervising career training, overseeing training, and 
participating in the annual review, preparation, and administration of company wage and salary 
programs. The Petitioner does not provide any detail or explanation of the Beneficiary's activities in 
the course of her daily routine at the foreign entity. Reciting the Beneficiary's vague job 
responsibilities or broadly-cast business objectives is not sufficient; the regulations require a detailed 
description of the Beneticiary's daily job duties. The actual duties themselves will reveal the true 
nature of the employment. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1103, 1108 (E.D.N:Y. 1989), 
affd, 905 F.2d 41 (2d. Cir. 1990). 
The Petitioner also included the Beneficiary's resume and documentation showing that she had 
received promotions while employed at the foreign entity. The Beneficiary's resume includes a brief 
description of the Beneftciary's duties in the positions of "Director ·of Human Resources & 
Administration" from January 2015 to present, and "Administration Director" from January 2004 to 
December 2014. The Beneficiary's resume does not correspond to the promotion documents which 
show the Beneficiary was offered the position of "Administration Director" on January 15, 20 II. 
The letters showing increases in the Beneficiary's salary for each year starting in December 2012, 
are addressed to the Beneficiary as the Administration Director, until. December 2014, when the 
letter is addressed to the Beneficiary as "Director (Admin.&HRD)." The organizational chart 
submitted in response to the Director's request for evidence (RFE) shows the Beneficiary in the 
position of "Admin Director." The inconsistencies among the letters, the Beneficiary's resume, and 
the organizational chart raise questions regarding the Beneficiary's actual position within the 
family-owned business. The Petitioner must resolve these ambiguities regarding.the Beneficiary's 
role in the foreign company with independent, objective evidence pointing to where the truth lies. 
Marter o( Ho, 191&N Dec. 582, 591-92 (BIA 1988). 
In response to the Director's RF£, the foreign entity paraphrased the previously provided description 
and emphasized that the Beneficiary "has the authority to make executive decisions within her scope 
of responsibilities, holding full responsibility for her team and direct reports' performance." The 
foreign entity also allocated the Beneficiary's time amongst broad categories of duties. For example, 
the foreign entity noted that the Beneficiary spent 25 percent of her time managing the company's 
personnel according. to existing policies that conform to federal and provincial laws and also 
assuring that the organization, and its mission, products, and services are consistently presented to 
relevant stakeholders. However, these responsibilities are also broadly-stated and do not provide 
insight into the Beneticiary's actual daily duties. 
The foreign entity added that the Beneticiary spent another 25 percent of her time in the business 
development and marketing department. The foreign entity indicated that her duties included 
"[d]riv[ingJ market strategy development and strategic business planning, monitor[ing] e!Iicient 
implementation of all strategies, ensur[ing] delivery and quality of programs, products and services·• 
as well as preparing for weekly and monthly meetings to report on business activities and 
"suggest[ing] recommendations to the Board of Directors." The Petitioner points out on appeal that 
these' two duties correspond to executive responsibilities listed in the Handbook and the O*NET 
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Mauer of K-C- LLC 
Online Summary Report for top or chief executives. However, reciting· responsibilities within a 
generic occupational title does not establish the specific duties the Beneficiary performed in relation 
to the foreign entity's particular business interests. The foreign entity in this matter has not detailed 
the actual work the Beneficiary perfom1ed. The descriptions do not include sufficient detail so that 
we mav analvze and evaluate the Beneliciary's actual duties as they specifically related to the - -foreign entity's utility and mining supply business. 
The fact that the Beneficiary managed or directed a business does not necessarily establish eligibility 
for classification as an intracompany transferee. While the Beneficiary may have exercised some 
discretion over the foreign entity's operations within her scope of responsibilities and possessed the 
requisite level of authority with respect to discretionary decision-making, the position descriptions 
alone are insuflicient to establish that her actual duties were primarily executive in nature. 
We have reviewed the foreign entity's organizational chart and the list of its employees. However, 
the organizational chart is incomplete and shows the Beneficiary as the "Admin Director" 
subordinate to a managing director. Neither the organizational chart nor the list of employees 
describes the di/Terences in duties, if any, between the managing director and the Benetlciary's 
position. The descriptions of duties for the foreign entity's employees, including a general manager 
who is shown subordinate to the Beneficiary on the organizational chart, do not correspond to the 
positions listed on the organizational chart. For example, the duty descriptions include three 
employees reporting to the AGM (Business Development) while the organizational chart shows four 
employees reporting to the AGM (Business Development). Nor do the descriptions provide 
sufficient detail to determine that the managerial employees listed primarily manage or supervise 
their subordinates rather than perform operational tasks. 
The statutory definition of the term "executive capacity" focuses on a person's elevated pos1t1on 
within a complex organizational hierarchy, including major components or functions of the 
organization, and that person's authority to direct the organization. Section l0l(a)(44)(B) of the 
Act. Under the statute, a beneficiary must have the ability to "direct the management" and "establish 
the goals and policies" of that organization. Inherent to the definition, the organization must have a 
subordinate level of managerial employees for a beneficiary to direct and they must primarily focus 
on the broad goals and policies ,of the organization rather than the day-to-day operations of the 
enterprise. An individual will J}ot be deemed an executive under the statute simply because they 
have an executive title or because they "direct" the enterprise as the owner or sole maniJ.gerial 
employee. A beneficiary must also exercise "wide latitude in discretionary decision making" and 
receive only "general supervision or direction from higher level executives, the board of directors, or 
stockholders of the organization." !d. Here, the brief descriptions for the foreign entity's managerial 
employees are insufficient to establish that they primarily manage their departments. 
We cannot ascertain the Beneficiary's actual role within the foreign entity from the general 
descriptions provided, the incomplete organizational chart, and the brief descriptions of the duties of 
the foreign entity's employees. Although the Beneficiary may own a portion of the foreign entity, 
her role in providing direction to the management of the foreign entity has not been established. The 
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.Halter ~f K-C- LLC 
record does not contain sufticient evidence of her involvement in the foreign business, other than as 
an owner/investor. The recor d is insufficient to corroborate the Petitioner ' s claim that the 
Beneftc.iary performed dutie s in a primarily executive capacity for the foreign entity . 
III. U.S. EMPLOY:'vtENT IN A MANAGERIAL OR EXECCTIVE CAPACITY 
The Petitioner was organized in 2015 to manage and run a coffee, wine , and beer shop in 
New Jersey. The Director determined 
that the record did not contain sufficient information to 
demonstrate that the "new office" will support an executive or managerial position in one year. On 
appeal, the Petitioner asserts that it has provided its business plan that included information on the 
number and salaries of the individuals it planned to employ. The Petitioner also contends that the 
Benefic iary's proposed duties are not vague and that the record show s she will occupy the top level 
of the company ,s hierarchy. 
The Petitioner provides the Augu st and October 2015, and January 2016 minute s of meetings of the 
Beneficiary ' s loreign employer. The Augus t minutes indicate that the Beneficiary and her spouse 
have been appointed to travel to the United States to explore establishing a business in the United 
States. The October minutes approve an investment in a joint venture with a coffee shop 
in the United States. The January 2017 minutes appoint the Beneficiary to manag e the United States 
operation and an investment up to $500,000 in the venture. 
The record includes a copy of a five-y ear lease agreement tor the coffee shop/wine bar entered into 
on March 1, 2016. The record includes numerou s emails between the lessors and the 
Petitioner 's brand director and chief operating officer. The email exchanges do not mention the 
Beneficia ry or show her as respon sib le for or invo lved in the lease negotiations . The business plan 
submitted states that the position of president , the Beneficiary 's propo sed position , will prov ide 
strategic leadership, ensure and maximize operational success and financial profi tability , as well as 
plan , introd uce new programs /strategies , and provide counsel and dire ction in all coffee shop 
operating matters. Other than the Beneficiary's appointment by the foreign entity in January 2016, 
the record does not include any evidence that the Beneficiary particip ated in or d iscussed the 
prop osed business. The record does not include evidence that the Beneficiary has been or will direct 
the operations of the new business. 
Althou gh the business plan also includes a proposed organizational chart showing the Benel1ciary at 
the top of the Petitioner's hierarchy , artificial tier s of subordinate employees and inflated job titles 
are not probative and will not establish that an organization is sufficiently complex to support an 
executive position. The Beneficiary's posit ion of president is depicted over the brand dire ctor, who 
in turn supervises a general manager and an advertising/marketing assistant. The general manager 
and advertisingimarketing assistant supervi se yet ano~her layer of employees identified as a store 
mnnager and kitc.hen super visor '1-vho then supervise the wait and kitchen statl~ The dut ies for the 
manag erial positions are genera l and do not include sutlicient info rmation to detem 1ine that their 
positions are primarily supervisory or manage rial in nature . There is insuflicient information in the 
busine ss plan regarding the proposed management positions to dis tingui sh their responsibilities and 
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Maffer of K-C- LLC 
dutie s in operating the busines s. The business plan submitted is general and does not include 
sufti<:ient detail to present a credible and ' realistic picture of the Beneficiary ' s role in the operations . 
When examining the managerial or executive capacity of a beneficia ry, U.S. Citi zenship and 
Immi gration Services (USCIS) reviews the totality of the evidence , including descriptions of a 
beneficiary 's duties and his or her subordin ate employees, the nature of a petitioner 's business, the 
employment and remuneration of employ ees, and any other evidence contributing to a complete 
underst anding of a beneficiary's actual role in a business. Here , o ther than the foreign entity's 
claimed inve stment and the Benefi ciary 's appointment to manage the United State s operati on and 
the investment venture , the Petition er has not substantiated the Bene ticiary ' s proposed 
role . 
IV. ADDlTIO-:-.JAL ISSUES 
We also observe that the recor d does not includ e sufficient prob ative eviden ce establishing the 
Petition er's qualifYing relation ship with the Beneticiary's foreign emp loyer or that it has sufticient 
physi cal premi ses to commence operations. · These Issues must be addr essed in any future 
proceedings. 
A. Quali fying Relationship 
To est ablish a "qualifying relat ionship," the Pctition~r must sho w that the Beneficiar y' s foreign 
emplo ye r and the propo sed U.S. em plo yer are the same employer (i.e., one entit y with "branch" 
offices), or related as a " paren t and subsidiary" or as " atliliates. " See secti on lO I (a)( 15)(L) of the 
Act ; see also 8 C. F. R. § 214.2(1)( I )(ii) (providing definitions of the terms " parent;· "bran ch," 
"subsidiary," and "a ffiliate"). 
As general evidence of a p etitioner 's claimed qualif ying re lationship , a certitic ate of lo rmation or 
organizati on of a limited liabili ty compan y ( LLC) alone is not sufficient to establish owner ship or 
contr ol of an LLC. LLCs are generall y obligated by the jurisdiction of formation to maintain records 
identi fying members by name, addre ss, and pe rcentage of ownership , and -..vritten statement s of the 
contributions made by each memb er, the· tim es at which additional contributi ons arc to be made, 
event s requiring the dissolution of the limited liability company, and the date s o n which each 
member became a member. Thes e member ship records, along with the LLC' s o perating agreement, 
certi f1 cate s of membership interest , and minutes of membership and man agemen t meetings, must be 
examined to determine the total number of member s, the percen tage of each member' s ownership 
interest, the appo intment of managers, and the degree of control ceded to the manage rs by the 
member s. Additionall y, a petitioning c.ompany must disclose all agreement s re lating to the voting of 
intere sts, the distribution of profit , the management and direction of the e ntit y, and any other factor 
affecting control of the enrity. Mall er a/ Siemens Med. Sys., Inc., 19 J&N Dec . 362 (Comm'r 1986). 
Here , the record does not incl ude minutes of membership and managemen t meet ings or voting 
agreement s. Withou t full disclo sure of all relevant documents , USC !S is unable to determine the 
element s of ownership and control. 
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Maller of K-C- LLC 
We have also looked at the method of the Petitioner's capitalization in order to assess the 
relationship(s) that may have been generated by the capitalization. The Petitioner provides a number 
of documentary excerpts that depict transfers from an account in to the Petitioner in the 
United States. The Petitioner also submitted copies of bank statements from several of the foreign 
entity's bank accounts as well as the foreign entity's managing director's bank account in 
However, the foreign entity and the managing direcTor's bank account numbers do not match the 
account number transferring funds to the Petitioner in the United States. Thus, the record does not 
appear to corroborate the Petitioner's claim that the foreign entity in this matter provided its 
capitalization and it is not possible to conclude that the Beneficiary's foreign employer provided the 
actual investment to start up the Petitioner's operations 
so that it could commence doing business. 
This issue must be addressed in any future proceedings. 
B. Physical Premises 
The record includes a copy of a lease the Petitioner claims it entered into in March 2016. The 
Petitioner, however, has not submitted any evidence that it has made any rental payments to 
maintain the lease. The record includes the Petitioner's bank statements only for January and 
February 2016. Thus, there is no evidence corroborating the Petitioner's continued interest in the 
property. The Petitioner must establish that all eligibility requirements for the immigration benefit 
have been satisfied from the time of the filing and continuing through adjudication. 8 C.F.R. 
9 I 03.2(b)( I). This issue must also be addressed in any future proceedings. 
V. CONCLUSION 
The Petitioner has not established a qualifying relationship with the Beneficiary's foreign employer, 
and has not established that a qualifying foreign entity employed the Beneficiary in an executive 
capacity. The Petitioner also has not established that it will employ the Beneficiary in a managerial 
or executive capacity within one year of approval of the petition. 
ORDER: The appeal is dismissed. 
Cite as Matter r~/K-C- LLC, ID# 632919 (AAO Apr. 5, 2018) 
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