dismissed L-1A Case: Food Import And Wholesale

U.S. Citizenship 
and Immigration 
Services 
MATTER OF E-, INC. 
Non-Precedent Decision of the 
. Administrative Appeals Office 
DATE: OCT. 9, 2018 
APPEAL OF VERMONT SERVICE CENTER DECISION 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a food importer and wholesaler, seeks to continue the Beneficiary's temporary 
employment as its chief executive officer under the L-1 A nonimmigrant classification for intracompany 
transferees.1 Immigration and Nationality Act (the Act) section 10l(a)(15)(L), 8 U.S.C. 
§ 1101 ( a )(15)(L ). The L-1 A 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 that the Petitioner will employ the Beneficiary in the United States in an executive capacity. 
The matter is now before us on appeal. In its appeal, the Petitioner contends that the Director erred 
in drawing "illogical and absurd" conclusions from the evidence of record, and in faulting the 
Petitioner for not submitting evidence that the Director had never requested. 
Upon de novo review, we will dismiss the appeal. 
I. LEGAL FRAMEWORK 
To establish eligibility for the L-1 A nonimmigrant visa classification, 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 or a subsidiary or affiliate thereof in a 
managerial or e~ecutive capacity. Id. 
1 The Petitioner previously filed a "new office" petition on the Beneficiary's behalf which was approved for the period 
October 7, 20 I 6 unti I August 7, 2017. A "new office" is an organization that has been doing business in the United 
S~ates through a parent, branch, affiliate, or subsidiary for less than one year. 8 C.F.R. § 214.2(1}(1}(ii){F). The 
· regulation at 8 C.F.R. § 214.2(1)(3}(v)(C} allows a "new office" operation one year within the date of approval of the 
petition to support an executive or managerial position. 
Matter of E-. Inc. 
A petitioner seeking to extend an L-lA petition that involved a new office must submit a statement 
of the beneficiary's duties during the previous year and under the extended petition; a statement 
describing the _staffing of the new operation and evidence of the numbers and types of positions held; 
evidence of its financial status; evidence that it has been doing business for the previous year; and 
evidence that it maintains a qualifying relationship with the beneficiary's foreign employer. 
8 C.F.R. § 214.2(1)(14)(ii). 
11. U.S. EMPLOYMENT IN AN EXECUTIVE CAPACITY 
The Director denied the petition based on a finding that the Petitioner did not establish that it will 
employ the Beneficiary in an executive capacity. The Petitioner does not claim that the Beneficiary 
will be employed in a managerial capacity. Therefore, we restrict our analysis to whether the 
Beneficiary will be employed in an executive capacity. 
"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 from 
higher-level executives, the board of directors, or stockholders of the organization. Section 
101(a)(44)(B) of the Act. 
Based on the statutory definition of executive capacity, the Petitioner must first show that the 
Beneficiary will perform certain high-level responsibilities. Champion World, Inc. v. INS, 940 F.2d 
1533 (9th Cir. 1991) (unpublished table decision). Second, the Petitioner must prove that the 
Beneficiary will be primarily engaged in executive duties, as opposed to ordinary operational 
activities alongside the Petitioner's other employees. See Family Inc. v. USCIS, 469 F.3d 1313, 
1316 (9th Cir. 2006); Champion World, 940 F.2d 1533. 
When examining the claimed executive capacity of a given beneficiary, we will look to the 
petitioner's description of the job duties. The petitioner's description of the job duties must clearly 
describe the duties to be performed by the beneficiary and indicate whether such duties are in a 
managerial or executive capacity. See 8 C.F.R. § 214.2(1)(3)(ii). Beyond the required description of 
the job duties, we examine the company's organizational structure, the duties of a beneficiary's 
subordinate employees, the presence of other employees to relieve a beneficiary from performing 
operational duties, the nature of the business, and any other factors that will contribute to 
understanding a beneficiary's actual duties and role in a business. 
Accordingly, we will discuss evidence regarding the Beneficiary's job duties along with evidence of 
the nature of the Petitioner's business and its staffing levels. 
A. Duties 
The Petitioner listed the Beneficiary's responsibilities: 
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Matter of E-, Inc. 
• Exercise ultimate executive duties of planning, developing, and establishing 
policies and objectives of the company in accordance with its board directives and 
corporation charter 
• Review activity reports and financial statements to determine progress and status 
in attaining objectives and revises objectives and plans with current conditions 
• Evaluate performance of executive and managerial personnel for compliance with 
established policies and objectives of the companies and contributions to attaining 
· objectives 
• Develop long-range goals and objectives of the company 
• Review and analyze activities, costs, operations, and forecast data to determine 
progress toward stated goals and objectives 
• Stay abreast of demands in the grocery industry, anticipating the ever-changing 
needs of potential clients will be key to company growth 
• Perform any other functions required to foster and promote business operations 
The Director requested more details, stating that the above job description was "vague and broad," 
and appeared to include non-qualifying operational tasks. In response, the Petitioner submitted new 
lists of the Beneficiary's daily and weekly duties and "expected executive decisions." Many of the 
listed daily items related to reviewing reports; approving proposals, products and delivery routes; 
and meeting with subordinates. Additional weekly items included meetings with clients; negotiating 
with suppliers and supermarkets; and evaluating staff efficiency. The Petitioner stated that the 
Beneficiary's "expected executive decisions" would involve sales strategies; staffing; finances; and 
whether to act on subordinates' recommendations. 
A third job description appears to derive from a generic template; it referred to a "board" and to 
lower-level "executives" that the company does not have, and indicated that the Beneficiary oversees 
"the company's ... investments" without specifying what those investments are. It also stated that 
the Beneficiary represented the company as a "public speaker," with no evidence that the 
Beneficiary has actually performed in that capacity. Entirely hypothetical responsibilities are not 
substantive components of a job description. 
In the denial notice, the Director found that the Petitioner had not sufficiently clarified or 
documented its assertions regarding the Beneficiary's duties and authority. The Director stated that 
the Petitioner did not document any performance evaluations that the Beneficiary is said to perform. 
On appeal, the Petitioner states that the Director misread the Beneficiary's job description in a way 
that appeared to diminish his discretionary authority (indicating that the Beneficiary sought 
approval, rather than issued approval, for various projects). The Petitioner appears to be correct on 
this point, but the denial does not rest on this one issue. 
The Petitioner asserts that the Director had not requested any specific documentation relating to the 
Beneficiary's authority, and "never explained what evidence ... would suffice as evidence of 
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Matter of E-, Inc. 
[executive] decisions." The Petitioner also asserts that executive decisions "are not documented in 
any formal way," and therefore the Petitioner's assertions should have sufficed. 
The type of docµmentation arising from an executive's actions will vary according to the nature of 
those decisions, and from employer . to employer. It would be impractical to identify specific 
documents in a request for evidence. The burden of proof rests on the Petitioner, who cannot 
sidestep this obligation simply by asserting that the Beneficiary's obligations are not readily 
amenable to documentation. 
Furthermore, the Petitioner has not explained why it submitted three very different job descriptions 
for the Beneficiary, as detailed above. These discrepancies are not a minor consideration. 
The Petitioner has not established that the Beneficiary's duties will be primarily those of an 
executive. 
B. Staffing 
If staffing levels are used as a factor in determining whether an individual is acting in a managerial 
or executive capacity, we must take into account the reasonable needs of the organization, in light of 
the overall purpose and stage of development of the organization. See section 101(a)(44)(C) of the 
Act. However, it is appropriate for us to consider the size of the petitioning company in conjunction 
with other relevant factors, such as the absence of employees who would perform the 
non-managerial or non-executive operations of the comp~y. See, e.g., Family Inc., 469 F.3d 1313; 
Systronics Corp. v. INS, 153 F. Supp. 2d 7, 15 (D.D.C. 2001). 
The statutory definition of the term "executive capacity" focuses on a person's elevated position 
within a comple~ organizational hierarchy, including major components or functions of the 
organization, and that person's authority to direct the organization. Section 101(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 a beneficiary 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 not be deemed an executive under the statute simply 
because they have an executive title or because they "direct" the enterprise as an owner or sole 
managerial 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." Id. 
The Petitioner's 2017 organizational chart named a head of logistics, who supervised one 
driver/loader, and a head of sales, who supervised a salesperson. Subsequent submissions show that 
the Petitioner later hired more employees in various positions, but the Petitioner must meet 
eligibility requirements at the time of filing. See 8 C.F.R. § 103.2(b)(l). Job descriptions in the 
business plan indicated that the head of logistics and head of sales would each perform a 
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Matter of E-, Inc. 
combination of managerial, supervisory, and operational functions. The descriptions did not specify 
the time devoted to specific tasks. 
In a later statement, the Petitioner asserted it had delegated several managerial functions to 
employees at the Petitioner's foreign affiliate, including an accountant, economist, and several 
department heads and managers. The Petitioner, however, did not elaborate or document the work 
performed in this manner. Job descriptions for the foreign employees did not differentiate between 
duties performed on behalf of the foreign employer and those performed on behalf of the petitioning 
U.S. company. 
The Petitioner's supplemental submission also included new job descriptions for the Beneficiary and 
several subordinates. These job descriptions appear to derive from generic templates that do not take 
the Petitioner's structure and staffing into account. The description for the head of the sales 
department, for instance, included "[ m ]eeting with the sales managers" and "[ w ]orking with 
members of the board," but the accompanying organizational chart did not show any sales managers 
and the company does not appear to have a board of directors; the Beneficiary described himself as 
the sole and ultimate authority who "will not receive any supervision from anyone else." 
The Director denied the petition based, in part, on inconsistent information concerning the 
company's staffing. Noting the Petitioner's assertion that the Beneficiary meets with the Petitioner's 
logistics department, the Director found that the Petitioner had not established that the company has 
a logistics department. 
On appeal, the Petitioner asserts that, because of delays relating to the issuance of the Beneficiary's 
L-1 A nonimmigrant visa, the Beneficiary had less than a full year to establish the company's 
operations before it was time to apply for the extension. The Petitioner asserts that the Director 
"should have extrapolated the important milestones" that the Petitioner would have attained if the 
Beneficiary had been able to work for a full year prior to the filing date. 
The Petitioner does not cite any legal provision that allows extrapolation in this manner, and even if 
such a provision existed, the Petitioner has not shown that the Beneficiary was primarily performing 
executive tasks 12 months after his initial entry in L-1 status. 
Also, the staffing that the Petitioner described in response to the Director's request for evidence is 
significantly different from the Petitioner's existing or planned structure described at the time of 
filing. Several of the described positions did not yet exist at the time of filing. For example, the 
Petitioner provides information about its warehouse manager, but the Petitioner did not lease its 
warehouse space until after it filed the petition. The Petitioner's initial business plan did not identify 
warehouse staff, either among current employees or on its projected hiring for the next five years. A 
petitioner must establish eligibility at the time of filing the petition. See 8 C.F.R. § 103.2(b)(l). 
Even if this revised staffing established eligibility, we cannot properly approve the petition at a 
future date after the petitioner or beneficiary becomes eligible under a new set of facts. See Matter 
of Katigbak, 14 I&N Dec. 45, 49 (Reg'] Comm'r 1971). 
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Matter of E-, Inc. 
With respect to the claimed delegation of U.S. business functions to foreign employees, the 
Petitioner notes that the Beneficiary signed the letter containing that claim. The Petitioner contends 
that, because the Beneficiary is the top authority at both companies, "his certification . . . should 
have sufficed to establish the employment of such individuals." The Petitioner asserts that the 
Director never .requested additional evidence regarding these foreign employees, and therefore 
cannot reasonably fault the Petitioner for not submitting that evidence. 
The claim of foreign outsourcing did not surface until after the Director issued the request for 
evidence (RFE), and therefore that request could not have addressed a future claim by the Petitioner. 
Likewise, the Director was under no obligation to issue a succession of RFEs to attend to the 
Petitioner's changing claims. More than once on appeal, the Petitioner protests not having had an 
opportunity to submit evidence, but the appeal itself includes no new evidence. Also, it is significant 
that the Beneficiary's initial submission did not indicate that foreign employees handled many of the 
company's administrative and operational tasks. The lack of consistency between the initial 
submission (including a business plan with five-year projections) and subsequent additions to the 
record lead us to question whether the Beneficiary will be working in an executive capacity. 
Due to the disc.repancies and deficiencies described above, the Petitioner has not established that the 
company was sufficiently staffed at the time of filing to relieve the Beneficiary from primarily 
performing non-executive tasks. 
III. CONCLUSION 
The Petitioner did not establish that it will employ the Beneficiary in a primarily executive capacity. 
ORDER: The appeal is dismissed. 
Cite as Mauer of E-, Inc., ID# 1659057 (AAO Oct. 9, 2018) 
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