dismissed L-1A Case: Food Importation And Distribution

U.S. Citizenship 
and Immigration 
Services 
In Re : 10795820 
Appeal of Texas Service Center Decision 
Form 1-129, Petition for L-lA Manager or Executive 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : JAN. 14, 2021 
The Petitioner, a food importer and distributor, seeks to continue the Beneficiary's temporary 
employment as its managing director and chief executive officer (CEO) under the L-lA classification 
for nonimrnigrant intracompany transferees who are coming to be employed in the United States in a 
managerial or executive capacity. Immigration and Nationality Act (the Act) section 101(a)(15)(L), 
8 U.S .C. § 1101(a)(15)(L) . 
The Director of the Texas Service Center denied the petition, concluding that the Petitioner did not 
establish that it would employ the Beneficiary in a managerial or executive capacity. The matter is 
now before us on appeal. 
In these proceedings, it is the Petitioner's burden to establish eligibility for the requested benefit. See 
Section 291 of the Act , 8 U.S .C. § 1361. Upon de nova review, we will dismiss the appeal. 
I. LEGAL FRAMEWORK 
To establish eligibility for the L-lA nonimmigrant visa classification, a qualifying organization must 
have employed the beneficiary in a managerial or executive capacity, or in a position requiring 
specialized knowledge 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)(1 ). 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 executive capacity. 8 C.F.R. 
§ 214.2(1)(3)(ii). 
II. U.S . EMPLOYMENT IN AN EXECUTIVE CAPACITY 
The sole issue to be addressed is whether the Petitioner established that it would employ the 
Beneficiary in an executive capacity under the extended petition. The Petitioner does not claim that 
the Beneficiary would be employed in a managerial capacity in the United States. 
"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 10l(a)(44)(B) of the Act. 
To be eligible for L-lA nonimmigrant visa classification as an executive, the Petitioner must show 
that the Beneficiary will perform the high-level responsibilities set forth in the statutory definition at 
section 10l(a)(44)(B)(i)-(iv) of the Act. If the record does not establish that the offered position meets 
all four of these elements, we cannot conclude that it is a qualifying executive position. If the 
Petitioner establishes that the offered position meets all elements set forth in the statutory definition, 
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). 
In determining whether a given beneficiary's duties will be primarily executive, we consider the 
petitioner's description of the job duties, the company's organizational structure, the duties of a 
beneficiary's subordinate employees, the presence of other employees to relieve the 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. 
A. Job Duties 
The Petitioner states that its foreign affiliate,! ~ in Argentinj, malufactures and distributes 
D derived products such a~ I, I I fresh and dried and I I products. It 
states thatl 1- exports its products to the United States, and that the Petitioner handles the 
promotion, distribution, and sales in the American market. At the time of filing the extension petition 
in September 2019, the Petitioner indicated that the Beneficiary will continue to perform the following 
duties as managing director and CEO: 
• Develop a distribution system for the foreign entity's products in the United States; 
• Negotiate and enter into contracts with regional local distributors; 
• Oversee maintenance of product quality throughout the distribution chain; 
• Direct the adaptation of the foreign entity's products to the U.S. market, ensure contract 
compliance, and oversee all legal and regulatory compliance; 
• Monitor the market and sales and make decisions regarding expansion into further regional 
markets; 
• Determine the need for personnel and establish a personnel management structure; 
• Handle budget and budget projections; 
• Closely coordinate with the management of the foreign entity on such matters as product and 
labeling adaptation to the U.S. market, determining budget requirements, and calculating cost 
projections. 
In a request for evidence (RFE), the Director advised the Petitioner that the submitted job description 
was insufficient. The Director's RFE appropriately emphasized the need for additional details about 
the Beneficiary's typical duties, as well as information regarding the amount of time he allocates to 
specific tasks. 
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In its response to the RFE, the Petitioner stated the Beneficiary's duties in the United States and 
percentage of time devoted to these duties as follows: 
• Determine what services are needed for importation of food products and negotiate contracts 
for services to the Petitioner for import, customs, warehousing, transport services, and 
distribution in the United States (25% of time); 
• Coordinate with General Manager of the foreign affiliate for the modifications required in the 
production of food products for export to the United States; request and evaluate data, analysis 
results, information and reports from relevant departments of the foreign entity regarding raw 
materials and food production processes and conditions as required by U.S. authorities for 
import approval; assure factory compliance with U.S. legal requirements for packaging health 
and safety of food products; and coordinate with the foreign entity's departments and direct 
modifications in the area of administration, invoicing, record keeping, financial records for the 
needs of the Petitioner (50% of time); 
• Assess U.S. market trends in the company's sector of the food industry and, in coordination 
with the foreign entity's general manager, determine what new products in U.S. demand are 
within the company's capability and advantage to produce; assess costs and budgets with the 
assistance of the foreign entity's tax and finance personnel (10% of time); 
• Direct foreign entity's marketing personnel in designing and implementing publicity 
campaigns in the press, social media and commercial networks for the U.S. market (10% of 
time); and 
• Prepare progress reports to the foreign entity's board of directors with budgets (5% of time). 
In the denial decision, the Director determined that the list of duties did not support a claim that the 
Beneficiary's actual duties would be primarily executive in nature and that his subordinates relieve 
him from non-qualifying duties. He stated that the job description was overly broad and recited vague 
job responsibilities, without providing any specific examples or any insight into the nature of his daily 
tasks within the context of the Petitioner's business activities. Conclusory assertions regarding the 
Beneficiary's employment capacity are not sufficient. Merely repeating the language of the statute or 
regulations does not satisfy the Petitioner's burden of proof Fedin Bros. Co., Ltd. v. Sava, 724 F. 
Supp. 1103, 1108 (E.D.N.Y. 1989), aff'd, 905 F. 2d 41 (2d. Cir. 1990); Avyr Assocs., Inc. v. Meissner, 
1997 WL 188942 at *5 (S.D.N.Y.). For example, the Director determined that the record is unclear 
regarding the types of services the Beneficiary develops, the goals and policies he sets, the contracts 
that he negotiates, and what is involved in the overall progress of the overseas staff that he purportedly 
manages. Additionally, the Director concluded that the record does not indicate how the Beneficiary 
maintains relationships with clients and vendors, nor does it explain how this task is an executive­
level duty. 
On appeal, the Petitioner asserts that the Director failed to consider the evidence submitted showing 
that the Beneficiary will continue to perform as an executive with the Petitioner. Although the 
Petitioner asserts on appeal that it would submit a brief and/or additional evidence within 30 days, we 
have not received a brief or additional evidence from the Beneficiary nearly one year after the appeal 
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was filed. It is the Petitioner's burden to establish eligibility for the immigration benefit sought. 
Section 291 of the Act, 8 U.S.C. § 1361; Matter ofSkirball Cultural Ctr., 25 I&N Dec. 799,806 (AAO 
2012). The Petitioner must support its assertions with relevant, probative, and credible evidence. See 
Matter of Chawathe, 25 I&N Dec. 369, 376 (AAO 2010). It has not done so here. The Petitioner has 
not provided the necessary detail or an adequate explanation of the Beneficiary's activities in the 
course of his daily routine, despite the fact that he has already held the offered position in the United 
States since 2015 and information regarding his typical duties should be readily available. 1 
Also, the new job description provided in response to the RFE is inconsistent with the original list of 
the Beneficiary's duties. For example, his initial job description states that he would oversee 
maintenance of product quality throughout the distribution chain. However, the later description does 
not mention his oversight of product quality. Further, the initial job description states that he would 
make decisions regarding expansion into farther regional markets, but the later description does not 
reference expansion into additional markets. Also, the initial job description states that he would 
determine the need for personnel and establish a personnel management structure, yet the later 
description does not indicate that he would have these personnel responsibilities. In addition, the later 
job description states that he will direct marketing personnel in designing and implementing publicity 
campaigns in the press, social media and commercial networks for the U.S. market, yet the initial job 
description does not mention oversight of any marketing responsibilities. 
The purpose of the RFE is to elicit farther information that clarifies whether eligibility for the benefit 
sought has been established. 8 C.F.R. § 103.2(b)(8). When responding to an RFE, a petitioner cannot 
offer a new position to a beneficiary, or materially change a position's title, its level of authority within 
the organizational hierarchy, or its associated job responsibilities. A petitioner must establish that the 
position offered to a beneficiary, when the petition was filed, merits classification as a managerial or 
executive position. See 8 C.F.R. § 103.2(b)(l). If significant changes are made to the initial request 
for approval, a petitioner must file a new petition rather than seek approval of a petition that is not 
supported by the facts in the record. The information provided by the Petitioner in its response to the 
Director's RFE did not clarify or provide more specificity to the original duties of the position, but 
rather altered many of the duties of the initial job description. The fact that the Beneficiary serves as 
the Petitioner's managing director and CEO does not necessarily establish that he would be employed 
in an executive capacity within the meaning of section 101(a)(44)(B) of the Act. By statute, eligibility 
for this classification requires that the duties of a position be "primarily" executive in nature. Id. Thus, 
while the Beneficiary may manage or direct the business, the Petitioner has not met its burden to 
establish that his actual duties would be primarily executive in nature. 
As noted, we also must consider the submitted position descriptions within the context of the 
Petitioner's business, which requires a review of the nature of the business, its structure, and its staffing 
levels. For the reasons discussed below, the Petitioner has not established that the foreign entity's 
staff in place at the time of filing were able to support the Beneficiary in a position in which he would 
be required to perform primarily executive-level duties. 
1 We note that in response to the RFE, the Petitioner submitted quotes from I ~ for warehousing of frozenc=] 
However, the record does not indicate that any of the foreign entity's food items have been imported to the United States. 
The record contains unsigned "proforma" invoices for various food products to be delivered to customers in New Jersey 
and New York in 2018. but the record does not demonstrate that those items were ever delivered to the listed customers. 
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B. Staffing and Organizational Structure 
As noted, the Petitioner indicates that it promotes, distributes, and sells D derived products in the 
American market. It stated that it had one employee (the Beneficiary) when it filed the extension 
petition in September 2019. In the RFE, the Director requested the Petitioner to submit its 
organizational chart, payroll records, and quarterly wage reports, as the record was unclear who was 
employed by the organization. In response, the Petitioner submitted an organizational chart for the 
foreign entity identifying the Beneficiary with one direct subordinate, and listing several other 
employees below the Beneficiary's direct subordinate in the organizational hierarchy. It also listed 
the duties of several of the individuals on the chart. It stated that the Beneficiary would continue to 
oversee the foreign entity's employees from the United States and that the foreign employees would 
support his efforts in the U.S. However, the Petitioner did not submit an organizational chart for the 
U.S. entity. Further, it did not submit its payroll records or quarterly wage reports as requested by the 
RFE. The purpose of the RFE is to elicit further information that clarifies whether eligibility for the 
benefit sought has been established. 8 C.F.R. § 103.2(b)(8). The failure to submit requested evidence 
that precludes a material line of inquiry shall be grounds for denying the petition. See 8 C.F.R. § 
103.2(b)(l4). 
In the denial decision, the Director concluded that the summary job descriptions provided for the 
foreign subordinates were broad and vague and do not sufficiently detail how they relieve the 
Beneficiary from non-executive duties necessary for the day-to-day operations of the U.S. company. 
He stated that the record does not provide sufficient evidence to demonstrate operational or 
administrative support to the Beneficiary on a daily basis. He noted that although the Petitioner 
indicates that it had the necessary lower-level staff at the time of filing to allow the Beneficiary to 
primarily focus on the broad policies and goals of the organization, and to remove him from significant 
involvement in the day-to-day operations of the Petitioner, the record does not sufficiently support 
that claim. 
On appeal, the Petitioner asserts that the Director erred in failing to consider the case Matter of Z-A-, 
Inc., Adopted Decision 2016-02 (AAO Apr. 14, 2016), for the principle that the U.S. entity's executive 
may rely on the foreign company's staff for the support services necessary for the executive to perform 
his executive function. We will consider a beneficiary's control over employees abroad under some 
circumstances. Matter of Z-A-, Inc. concerned a company with "staff members within the parent 
company's headquarters office in Japan [who] exclusively support the Beneficiary's work." Id. at 2. 
Those foreign employees were effectively the Beneficiary's subordinates because they provided 
services to the petitioning U.S. company. The Petitioner has not shown that similar circumstances 
apply in the present case. The foreign company was already actively engaged in manufacturing and 
distribution before it had a U.S. affiliate. The Petitioner has not shown that there is significant 
interaction between the U.S. and foreign entities beyond the Beneficiary's continued involvement with 
both companies. The relationship does not appear to be two components of an integrated whole. A 
beneficiary cannot qualify as an intracompany executive simply by being physically present in the 
United States while maintaining control over a business abroad. The mere presence of an agent or 
office does not constitute doing business. See 8 C.F.R. § 214.2(l)(l)(ii)(H). 2 Further, the petitioner 
2 The Petitioner has not established that it is a qualifying organization. The regulations define a qualifying organization 
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in Matter of Z-A-, Inc. had two employees in the United States to accomplish non-managerial duties, 
and it had revenues of nearly $600,000 in the previous eight months. Conversely, the record here 
demonstrates that the Petitioner has no employees other than the Beneficiary in the United States to 
accomplish non-executive duties, and the record contains no evidence of revenues earned by the 
Petitioner. 3 
The statutory definition of the term "executive capacity" focuses on a person's elevated position. 
Under the statute, a beneficiary must have the ability to "direct the management" and "establish the 
goals and policies" of an organization or major component or function thereof Section 10l(a)(44)(B) 
of the Act. To show that a beneficiary will "direct the management" of an organization or a major 
component or function of that organization, a petitioner must show how the organization, major 
component, or function is managed and demonstrate that the beneficiary primarily focuses on its broad 
goals and policies, rather than the day-to-day operations of such. An individual will not be deemed 
an executive under the statute simply because they have an executive title or because they "direct" the 
organization, major component, or function as an owner or sole managerial employee. Based on the 
foregoing, we cannot determine how much time the Beneficiary devotes to directing the management 
and establishing the goals and policies of the company, what duties he performs, or the extent to which 
the foreign entity's staff relieves the Beneficiary from engaging in non-executive duties. Thus, the 
Petitioner has not met its burden to establish that it would employ the Beneficiary in an executive 
capacity under the extended petition. Accordingly, the appeal will be dismissed. 
ORDER: The appeal is dismissed. 
as one doing business as an employer in the United States. See 8 C.F.R. § 214.2(1)(1)(ii)(G)(2). "Doing business" is 
defined as the regular, systematic, and continuous provision of goods or services. 8 C.F.R. § 214.2(1)(14)(ii)(A) and 8 
C.F.R. § 214.2(1)(1 )(ii)(H). In any future proceedings, the Petitioner must establish that it is doing business as an employer 
in the United States. 
3 On the petition, the Petitioner left blank the boxes at Part 5 requesting its gross annual income and net annual income. 
The record contains the Petitioner's bank statements from April 2018 to April 2019, and most months, it showed $0 in 
deposits and credits, indicating that it had no revenue from promoting, distributing, or selling the foreign entity's products. 
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