dismissed L-1A Case: Food Trading

U.S. Citizenship 
and Immigration 
Services 
MATTER OF S-G- LLC 
APPEAL OF VERMONT SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: JUNE23,2017 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, an international food trading company, seeks to extend the Beneficiary's temporary 
employment as its president under the L-1 A nonimmigrant classification for intracompany 
transferees. See Immigration and Nationality Act (the Act) section 101(a)(l5)(L), 8 U.S.C. 
§ 1101(a)(15)(L). The L-1A 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 ofthe Vermont Service Center denied the new office extension petition concluding that 
the Petitioner did not establish, as required, that the Beneficiary would be employed in an executive 
capacity. 
On appeal, the Petitioner submits a brief with a projected business and personnel plan, claiming that 
the Beneficiary will primarily perform executive job duties. 
Upon de novo review, we will dismiss the appeal. 
I. LEGAL FRAMEWORK 
To establish eligibility for the L-1 nonimmigrant visa classification, a qualifying organization must 
have employed the Beneficiary in a managerial or executive capacity, or in a position involving 
specialized knowledge, for one continuous year within three years preceding the Beneficiary's 
application for admission into the United States. Section 101(a)(15)(L) of the Act. 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, executive, or specialized 
knowledge capacity. !d. 
A petitioner seeking to extend an L-1 A 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). 
Matter ofS-G- LLC 
II. U.S. EMPLOYMENT IN AN EXECUTIVE CAPACITY 
The Director found that the Petitioner did not establish that the Beneficiary would be employed in 
the United States in a managerial or executive capacity. The Petitioner's original supporting 
statement as well as its submissions in response to the Director's request for evidence (RFE) both 
indicate that the Beneficiary would be employed in an executive capacity. 
The term "executive capacity" is defined as "an assignment within an organization in which the 
employee primarily": 
(i) directs the management of the organization or a major component or function 
of the organization; 
(ii) establishes the goals and policies of the organization, component, or function; 
(iii) exercises wide latitude in discretionary decision-making; and 
(iv) 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. Further, if staffing levels are used as a factor in determining 
whether an individual is acting in a managerial or executive capacity, U.S. Citizenship and 
Immigration Services (USCIS) must take into account the reasonable needs of the organization, in 
light ofthe overall purpose and stage of development ofthe organization. See section 101(a)(44)(C) 
ofthe Act. 
A. Duties 
When examining the executive capacity of the Beneficiary, we will look first 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(l)(3)(ii). 
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. 
The Petitioner filed the Form 1-129, Petition for a Nonimmigrant Worker, claiming four employees and a 
gross income of $163,889. In a supporting cover letter, the Petitioner stated that the Beneficiary is its 
"highest-ranking executive officer" with unfettered discretionary authority over all matters concerning 
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Matter of S-G- LLC 
the Petitioner's personnel, finances, operations, marketing, administration, and investments. The 
Petitioner also provided a breakdown of the Beneficiary's duties, claiming that the Beneficiary 
would allocate 20% of his time to making and implementing decisions concerning the company's 
structure, strategies, policies, and objectives, communicating with potential customers and 
distributors, and reviewing reports and making final decisions on contracts. The Petitioner made 
multiple references to the foreign entity's board of directors, claiming that the Beneficiary will 
"confer" with the board to review the U.S. entity's progress, discuss capital investments, ensure 
business development, and secure product lines. As these references were included with other job 
duties, the specific amount of time the Beneficiary plans to spend conferring with the foreign entity's 
board is unclear. 
Further, we note that in light of the Beneficiary's status as the foreign entity's majority stockholder, 
owning 95% of its stock such that "there is no higher person within the decision-making or executive 
hierarchy," it does not appear that the Beneficiary would answer to a board of directors, particularly 
when the only named director is the Beneficiary's spouse, who owns the remaining 5% of the 
foreign entity's stock. As such, the claim that the Beneficiary would allocate any time at all to 
conferring with the foreign entity's board of directors is not supported by the record. 
The Petitioner also indicated that the Beneficiary would direct and oversee the company's finances 
through staff and a subordinate financial manager, make discretionary decisions regarding personnel 
and the sale and purchase of merchandise, implement public relations actions to ensure good 
communication among staff and with customers, and meet with subordinate managers to review 
employee performances and evaluate their strengths and set goals. In addition, the Petitioner 
provided job descriptions for a sales manager and an operations manager, but did not employ a 
financial manager at the time the petition was filed. While one of the job duties of the operations 
manager would be to work with the Beneficiary "to organize the Company's financial information," 
it is unclear that this position would be responsible for the job duties of a financial manager and thus 
we cannot determine how the Beneficiary would direct the company's finances without a financial 
manager. 
The Director issued an RFE advising the Petitioner that it did not provide sufficient evidence to 
establish that it would employ the Beneficiary in an executive capacity. The RFE acknowledged that 
the Petitioner submitted a job description, but noted that information provided was overly broad. 
Accordingly, the Petitioner was instructed to provide a list itemizing the Beneficiary's job duties and 
to indicate what percentage of time he would allocate to each duty. 
In response, the Petitioner provided a statement listing the actions the Beneficiary took over the 
course of the Petitioner's first year of operation as well as a list of the executive decisions the 
Beneficiary expected to make as operations continue, and a new breakdown of the Beneficiary's 
proposed job duties. The Petitioner assigned a percentage of time to five areas of responsibility and 
listed four to five job duties in each category. The five categories and their time allocations are as 
follows: (1) supervising the management of the operation by presiding over shareholder meetings 
and setting and implementing policies and objectives to increase productivity- 25%; (2) appointing 
Matter of S-G- LLC 
and supervising company managers - 15%; (3) acting on behalf of the company by negotiating with 
clients and suppliers and promoting and representing the company at public engagements - 20%; 
(4) making decisions about the Petitioner's finances by establishing a budget and making decisions 
about banking and expenditures - 25%; and (5) making marketing decisions including approving 
marketing campaigns, implementing public relations activities, and organizing events to seek out 
new customers- 15%. 
Again, we question the validity of claiming that the Beneficiary would allocate a significant amount 
of his time to shareholder meetings in light of the fact that the Beneficiary owns 95% of the 
company and his spouse owns the remaining 5%. It is unclear what policies the Beneficiary would 
implement or why he plans to allocate one fourth of his time to meeting with his spouse to make 
those policies. It is also unclear why the Petitioner repeated virtually the same job duty - conferring 
with the minority shareholder regarding company policies- when describing the Beneficiary's role 
in serving as the company's representative. 
We further note that the Petitioner did not provide consistent information regarding the Beneficiary's 
involvement in managing the company's finances. Namely, while the Petitioner's initial job 
description indicated that the Beneficiary would allocate 15% of his time to overseeing the 
company's financial performance, the job description provided in the RFE response indicated that 
the Beneficiary would allocate 25% of his time to making decisions about financial activities. The 
Petitioner did not resolve the inconsistency between the two descriptions through the submission of 
independent, objective evidence. See Matter (~f Ho, 19 I&N Dec. 582, 591-92 (BIA 1988). 
Also, a number of the responsibilities listed in the RFE response were not actual daily tasks, but 
rather described intermittent activities that the Beneficiary would carry out on an as-needed basis. 
For instance, the Petitioner stated that the Beneficiary would select and hire managers and decide 
their pay scales, initiate and enforce policy changes within the organization, and determine when to 
change banking institutions. While we do not dispute that the Beneficiary's majority ownership and 
position as the Petitioner's highest ranking official allows him unfettered authority to make decisions 
regarding these business components, the Petitioner did not establish that its four-person staff at the 
time of filing would warrant frequent changes in staff, policy, or banking institutions such that 
effecting these changes would be part ofthe Beneficiary's daily or weekly routine. 
The Petitioner also stated that the Beneficiary would "[ d]eliver speeches and present information at 
meetings and conventions to promote the Company's business," promoting the company at "official 
functions" as part of his role in acting on behalf of the company, heading public relations activities, 
and organizing and attending events and functions to attract new customers. However, these 
activities are more akin to marketing tasks that are designed to promote the organization, expand its 
customer base, and ultimately increase sales. These operational tasks cannot be classified as 
executive-level job duties that are indicative of directing the management of the organization. While 
the Beneficiary is not required to allocate 100% of his time to executive-level tasks, the Petitioner 
must establish that the non-executive tasks he would perform would only be incidental to the 
proposed position. An employee who "primarily" performs the tasks necessary to produce a product 
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Matter of S-G- LLC 
or to provide services is not considered to be "primarily" employed in a managerial or executive 
capacity. See sections 101(a)(44)(A) and (B) ofthe Act (requiring that one "primarily" perform the 
enumerated managerial or executive duties); see also Matter of Church Scientology International, 19 
I&N Dec. 593, 604 (Comm. 1988). 
In the present matter, the Petitioner did not comply with the RFE instructions, which asked that time 
constraints be allocated to individual job duties. Instead, the Petitioner assigned time constraints to 
five broad categories, thereby precluding us from gauging how much time the Beneficiary would 
allocate to executive versus non-executive functions. 
In denying the petition the Director determined that the record lacks sufficient evidence to support 
the conclusion that the Beneficiary's proposed position would require the Beneficiary to primarily 
perform tasks of an executive nature. 
On appeal, the Petitioner contends that the Beneficiary will oversee its growth and expansion, which 
will include overseeing the company's three current employees and additional employees that the 
Petitioner seeks to hire. The Petitioner also provided an additional job description, which overlaps 
somewhat, but not entirely, with the previously provided list of job duties. The Petitioner states that 
the Beneficiary's duties consist of general management, financial management, and sales 
components. In describing the Beneficiary's role with respect to the general management 
component, the Petitioner indicated that the Beneficiary would establish goals and policies with the 
aim of"[ e ]xpanding the product portfolio and partner network," increasing marketing channels and 
gaining more clients, ensuring supply of merchandise through communication with Vietnamese 
suppliers, and introducing new products to the U.S. market. 
The Petitioner does not provide examples of the types of policies the Beneficiary would establish or 
disclose the Beneficiary's level involvement in ensuring that the Petitioner meets these goals. The 
Petitioner also claims that the Beneficiary will interview job candidates, manage employment 
contracts, and continuously evaluate staff performances. While the prior job descriptions focused on 
the Beneficiary's direct role in overseeing managerial subordinates, the new job description 
seemingly indicates that there is a human resources component to the Beneficiary's proposed 
position that applies to all staff, rather than just the company's managers. This new claim, which 
indicates that the Beneficiary would carry out various personnel management functions is 
inconsistent with the information that was previously offered and indicates yet another non­
executive component to the Beneficiary's proposed position. 
The Petitioner's description of the Beneficiary's role with respect to the general management 
component also includes a number of job duties that are too vague to provide a meaningful 
understanding of the actual underlying tasks. For example, the Petitioner claims that the Beneficiary 
will "[ c ]oordinat[ e] with newly hired employees to implement . . . business plans"; ''[a ]nalyze 
operations to evaluate the performance of [the Petitioner] in meeting objectives"; "[ e ]stablish[] 
qualitative and quantitative goals in accordance with the Company's mission"; and ''[e]valuat[e] the 
quality with which the Company's products are sold." While all of the mentioned duties indicate 
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Matter of S-G- LLC 
that the Beneficiary has a high degree of discretion in how the Petitioner's products are marketed 
and sold to its clients, we are unable to determine, based on the limited information that the 
Petitioner offers, the Beneficiary's actual tasks and the nature of those tasks. The actual duties 
themselves reveal the true nature of the employment. 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). 
The Petitioner also continues to imply that the Beneficiary answers to a higher authority from the 
foreign entity, claiming that the Beneficiary may be called upon to address "overseas directives." 
The Petitioner does not, however, provide evidence establishing who initiates those "directives," 
which is particularly problematic in light of the Beneficiary's status as the majority owner of the 
foreign entity. The record also lacks evidence to establish that the Beneficiary's claimed role with 
respect to the sales component would be executive in nature. While the Petitioner claims that the 
Beneficiary would direct, rather than perform, market analysis as well as develop and implement 
marketing strategies and monitor activity reports, the record lacks evidence to establish that the 
employees who were part of the Petitioner's organization at the time of filing were assigned the 
underlying marketing tasks that the Beneficiary would purportedly oversee. As such, we cannot 
overlook the possibility that the Beneficiary himself would be required to perform these, and 
possibly other, non-executive functions based on the needs of the organization and the lack of other 
employees to fulfill those needs. 
Further, in describing the Beneficiary's role with respect to the financial management component, 
the Petitioner states that the Beneficiary would be charged with "[ m ]anaging and coordinating 
closely with the Company's Logistics Manager, Sales and Marketing Manager, and Office 
Assistant" and that he would "[f]inancially support the U.S. investors to engage in investment 
projects in Vietnam." However, the record does not support either of these claims. First, the 
Petitioner does not explain why it would be required to "[f]inancially support the U.S. investors" nor 
does the Petitioner clarify who the targeted U.S. investors would be or the role they would play in 
the Petitioner's sales-driven operation. Second, based on the evidence submitted, the Petitioner did 
not employ a logistics manager, a marketing manager, or an office assistant at the time the petition 
was filed. As such, the Petitioner cannot claim that the Beneficiary would manage or coordinate his 
duties with employees who were not part of the organization during the period in question. 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. § 103.2(b)(l). 
While it is likely that the Petitioner now anticipates that it will eventually hire employees to fill all 
three positions, the only positions that were actually filled at the time of filing were those of sales 
manager, operations manager, and sales representative. As such, any of the Beneficiary's job duties 
that are dependent upon employees who were not part of the U.S. organization at the time of filing 
will not be considered in determining whether the Beneficiary would be employed in an executive 
capacity. 
In sum, despite the Petitioner's submission of a position description that assigned percentages to areas 
of responsibility, the description contains few specific job duties and instead consists primarily of 
general information that includes actions the Beneficiary may carry out intermittently as the need arises 
Matter of S-G- LLC 
as well as job duties that are premised on his supervision of positions that were not yet filled when the 
petition was filed. In light of the various deficiencies and ambiguities described above, we find that the 
job descriptions in the record are not sufficient to establish that the Beneficiary's day-to-day job duties 
would be primarily executive in nature. 
B. Staffing 
Beyond the required description of the job duties, USCIS reviews the totality of the record when 
examining a beneficiary's claimed executive capacity, including 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. 
The statutory definition of the term "executive capacity" focuses on a person's elevated position 
within a complex organizational hierarchy, including major components or functions of the 
organization, and that person's authority to direct the organization. Section 10l(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 not 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 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." !d. 
In the present matter, the Petitioner initially provided an organizational chart depicting a four-person 
hierarchy with the Beneficiary at the top of the hierarchy, followed by an operations manager and a 
sales manager directly below the Beneficiary, and a sales representative at the bottom tier 
subordinate to the sales manager. Despite their respective position titles and the organizational 
chart's depiction of the sales manager as overseeing a sales representative, neither employee's job 
description is consistent with his or her managerial position title as neither was assigned managerial 
job duties. Merely assigning managerial position titles to the Beneficiary's subordinates is not 
sufficient to establish that the Petitioner has the requisite subordinate level of managerial employees 
that would elevate the Beneficiary's position to that of an executive. A petitioner's unsupported 
statements are of very limited weight and normally will be insufficient to carry its burden of 
proof. The Petitioner must support its assertions with relevant, probative, and credible 
evidence. See Matter ofChawathe, 25 I&N Dec. 369, 376 (AAO 2010). 
Furthermore, a review of the 2016 fourth quarterly wage report shows that two months following the 
filing of the instant petition, the Petitioner experienced a reduction in its support staffing taking it 
from four employees in September 2016 when the petition was filed, to only two employees in 
November and December 2016. The Petitioner's diminished support staff in the months following 
Matter ofS-G- LLC 
the filing of the petition leads us to conclude that the Petitioner would be unable to support the 
Beneficiary in an executive capacity with only one employee available to relieve the Beneficiary 
from having to devote his time primarily to the Petitioner's daily operational tasks. As it stands, the 
record at the time of filing shows that the Petitioner did not have any employees to market its 
products, manage its finances, oversee the logistics of shipping and receiving merchandise, or to 
perform administrative tasks that would eventually be assigned to an administrative assistant the 
Petitioner seeks to hire at a future time. 
Based on the Petitioner's staffing composition at the time of filing, we find that the Petitioner lacked 
the staff necessary to carry out the Petitioner's daily operational tasks and therefore did not establish 
that the Beneficiary would be able to primarily focus on the broad goals and policies of the 
organization, rather than being involved in its day-to-day operations. Despite establishing that the 
Beneficiary has discretionary authority over the business and its stafi, the record is not persuasive in 
establishing that the Petitioner's organization at the time of filing was sufficient to suppoti the 
Beneficiary in a primarily executive position where his primary concern would be directing the 
management of the organization. 
For the reasons discussed above, the evidence submitted does not establish that the Beneficiary 
would be employed in an executive capacity under the extended petition. 
III. EMPLOYER-EMPLOYEE RELATIONSHIP 
In addition, while not addressed in the Director's decision, we will examine the ownership schemes 
of the Petitioner and the Beneficiary's foreign employer to determine whether the Beneficiary has an 
employer-employee relationship with each entity. 
Section 101(a)(15)(L) of the Act states that only aliens who were "employed'' abroad and are 
coming to the United States "to continue to render services to the same employer or to an affiliate or 
subsidiary thereof' will merit classification as an intracompany transferee. 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, where he will be temporarily employed in a managerial or 
executive capacity. This is in contrast to provisions in the Act, such as section 10l(a)(l5)(E), which 
permits the alien to tile a nonimmigrant petition on behalf of himself or herself provided that the 
alien meets certain other conditions regarding a treaty trader or treaty investor. 
The factors of ownership and control are critical in determining whether the Beneficiary has an 
employer-employee relationship with the Petitioner. See Clackamas Gastroenterology Assocs. P. C. 
v. Wells, 538 U.S. 440,451 (2003) (quoting Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318, 324 
(1992)). 1 
1 Factors to be addressed in determining whether a worker, who is also an owner of the organization, is an employee 
include: (I) whether the organization can hire or fire the individual or set the rules and regulations of the individual's 
work; (2) whether and, if so, to what extent the organization supervises the individual's work; (3) whether the individual 
Matter of S-G- LLC 
In the matter at hand, the record indicates that Beneficiary directly owns and controls Petitioner and 
the foreign entity as the majority shareholder owing 95% of each entity while his spouse owns the 
remaining 5%. The record further shows that the Beneficiary assumes the top-most position within 
the Petitioner's organization, and that the same was true during his employment with the foreign 
entity. The Petitioner also indicated that the Beneficiary was not and would not be subject to a 
higher authority within the company. In light of the Beneficiary's ownership and control of both the 
Petitioner and the foreign entity, the record does not establish that the Beneficiary has an employer­
employee relationship with either entity. For this additional reason, the petition cannot be approved. 
IV. CONCLUSION 
The appeal must be dismissed as the Petitioner did not establish that it will employ the Beneficiary 
in an executive capacity under the extended petition or that the Beneficiary had an employer­
employee relationship with his former employer abroad and that he would have an employer­
employee relationship with the U.S. entity. 
ORDER: The appeal is dismissed. 
Cite as Matter ofS-G- LLC, ID# 428933 (AAO June 23, 2017) 
reports to someone higher in the organization; (4) whether and, if so, to what extent the individual is able to influence the 
organization; (5) whether the parties intended that the individual be an employee, as expressed in written agreements or 
contracts; and (6) whether the individual shares in the profits, losses, and liabilities of the organization. !d. at 449-450 
(citing New Compliance Manua[). 
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