dismissed L-1A Case: Freight Forwarding

U.S. Citizenship 
and Immigration 
Services 
MATTER OF D-USA LLC 
APPEAL OF VERMONT SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: JAN. 27,2017 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a freight forwarding and courier service provider, seeks to temporarily employ the 
Beneficiary as its president under the L-1A nonimmigrant classification for intracompany 
transferees. See Immigration and Nationality Act (the Act) section 101(a)(15)(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, Vermont Service Center, denied the petition. The Director concluded that the 
Petitioner did not submit sufficient evidence to establish that the Beneficiary would be employed in 
the United States in an executive capacity. 
The matter is now before us on appeal: In support of the appeal, the Petitioner submits additional 
evidence and a brief disputing the basis for denial. 
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 specialized knowledge 
capacity, for 1 continuous year within 3 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. 
The regulation at 8 C.F.R. § 214.2(1)(3) states that an individual petition filed on Form I-129, 
Petition for a Nonimmigrant Worker, shall be accompanied by: 
(i) .. Evidence that the petitioner and the organization which employed or will 
employ the alien are qualifying organizations as defined in paragraph 
(l)(l)(ii)(G) of this section. 
Matter of D- USA LLC 
(ii) Evidence that the alien will be employed in an executive, managerial, or 
specialized kn,owledge capacity, including a detailed description of the 
services to be performed. 
(iii) Evidence that the alien has at least one continuous year of full-time 
employment abroad with a qualifying organization within the three years 
preceding the filing of the petition. 
(iv) Evidence that the alien's prior year of employment abroad was in a position 
that was managerial, executive or involved specialized knowledge and that the 
alien's prior education, training, and employment qualifies him/her to perform 
the intended services in the United States; however, the work in the United 
States need not be the same work which the alien performed abroad. 
II. U.S. EMPLOYMENT IN AN EXECUTIVE CAPACITY 
The Director denied the petition based on the finding that the Petitioner did not establish that the 
Beneficiary will be employed 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 B~neficiary will be employed in an executive capacity. 
Section 101(a)(44)(B) of the Act, 8 U.S.C. § 1101(a)(44)(B), defines the term "executive capacity" 
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. 
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 of the overall purpose and stage of development of 
the organization. See section 1 01 (a)( 44 )(C) of the Act. 
The Petitioner filed the Form I-129 on, June 28, 2016, claiming five employees and a net income of 
$2695. In a supplemental statement the Petitioner claimed that the Beneficiary woulq direct the 
Petitioner's finances and human resource policies, set goals and create long- and short-term 
marketing strategies, research and develop new service offerings, meet with managers and review 
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Matter of D-USA LLC 
financial statements to monitor the company's performance, and serve as the company's 
representative and liaison. The Petitioner also provided an organizational chart, which depicts the 
Beneficiary as both president - a position whose placement is at the top of the company's 
organizational hierarchy - and as general manager - a position that is depicted as the direct 
subordinate of the company's president. The next tier of employees includes an administration 
manager overseeing an accountant and an unspecified number of bookkeepers, and an operational 
manager overseeing an assistant manager, a data entry clerk, and two operations assistants. The 
chart indicates that the positions of administration manager, accountant, and bookkeeper were all 
vacant at the time of filing. 
After reviewing the record, the Director issued a request for evidence (RFE) informing the Petitioner 
that it did not provide sufficient evidence to establish that it would employ the Beneficiary in an 
executive capacity. The Director offered the Petitioner an opportunity to resolve this evidentiary 
deficiency by submitting, in part, a statement describing the Beneficiary's proposed executive job 
duties, specifying the percentage of time he would allocate to each job duty, and explaining how the 
Beneficiary would meet each prong of the four-prong definition of executive capacity. The Director 
also asked die Petitioner to provide evidence of employee wages and employment agreements for 
any newly hired employees that would be under the Beneficiary's supervision. 
In response, the Petitioner provided a statement containing the following list of the Beneficiary's 
proposed job duties and their respective time allocations: 
• Create, communicate and implement the company's vision, mission and overall 
direction, so that every employee feels . . . that their role is important to the 
organization. This would take 25% of his time. 
• Set specific goals and create long- and short-term strategies for the development' 
and marketing of our services, which would take about 20% of his time. 
• Create financial and human resources policies, such as evaluating the company's 
staffing needs and determining the guidelines for disciplinary actions, incentives, 
general rules, recruitment and firing. This would take 15% of his time. 
• Lead, guide, direct and evaluate the work of current 111anagers and other 
executives that may join us in the future. This task would take 10% of his time. 
• Research and develop current and new offerings .... For this he will be 
formulating and implementing the strategic plan that guides the direction of the 
business. This will take about 1 0% of his time. 
• Conduct weekly meetings with the managers to monitor [the] company's 
performance by reviewing financial statements, sales and other reports prepared 
by each department. ... This will take 1 0% of his time. 
• Serve as the face of the company and represent it in international affairs, before 
the media, and throughout the external community will [sic] account for 5% of his 
time. 
• Serve as liaison between [the foreign entity] and [the Petitioner]. This will take 
5% ofhis time. 
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Matter of D-USA LLC 
The Petitioner also explained that while it has been using outsourced services to meet its accounting 
needs, it plans to hire two in-house employees to fill the accountant and bookkeeper positions. The 
Petitioner resubmitted the original organizational chart and provided job descriptions and salaries of 
the employees listed therein. Lastly, the Petitioner provided evidence of wages paid to employees in 
2014 and 2015; no wage documents were provided to support the Petitioner's organizational chart 
depicting the Petitioner's claimed staffing levels as of June 2016 when the petition was filed. 
The Director determined that neither the Beneficiary's job description nor the size of the Petitioner's 
support staff supported a corfclusion that the Beneficiary would be employed in an executive 
capacity. The Director noted that portions of the provided job description were vague in describing 
the Beneficiary's specific job duties. The Director also questioned how, with a limited staffing 
structure, the Petitioner would realistically require the Beneficiary to allocate 25% of his time to 
"mission awareness and morale improvement." 
On appeal, the Petitioner asserts that the Director placed undue emphasis on the number of 
employees at the time of filing and did not consider evidence that the company had additional 
employees in 2014 and 2015. Further, the Petitioner maintains that the Director did not 
acknowledge that the company temporarily outsources transportation and pick-up services, 
technology and network services, or that it receives support from its foreign affiliate on an as needed 
basis. Finally, the Petitioner contends that the Director did not properly weigh the Beneficiary's 
duties in light of the company's submitted business plan, which explains why it seeks to transfer an 
executive employee to improve the U.S. company's performance and pursue expansion opportunities 
in the U.S. market. 
Upon review of the petition and the evidence of record, including materials submitted in support of 
the appeal, we concur with the Director's conclusion. 
When examining the executive capacity of the Beneficiary, we will look first for a job description 
that clearly describes the Beneficiary's specific proposed job duties. See 8 C.F.R. § 214.2(1)(3)(iv). 
The duties themselves will reveal the true nature of the beneficiary's 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). Further, 
we note that 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 (9th Cir. 1991) (unpublished table decision). Second, the Petitioner must prove that the 
Beneficiary would primarily be engaged in executive duties, as opposed to ordinary operational 
activities alongside the company's other employees. See Family Inc. v. USCIS, 469 F.3d 1313, 1316 
(9th Cir. 2006); Champion, 940 F.2d 1533. Accordingly, we look for information regarding how 
much time the Beneficiary would spend performing executive tasks versus tasks that are operational 
or administrative in nature. An employee who "primarily" performs the tasks necessary to produce a 
pro<;fuct or to provide services is not considered to be "primarily" employed in a managerial or 
executive capacity. See also, sections 101(a)(44)(A) and (B) of the Act (requiring that one 
"primarily" perform the enumerated managerial or executive duties); Matter of Church Scientology 
International, 19 I&N Dec. 593, 604 (Comm'r 1988). 
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Matter of D-USA LLC 
In the present matter, the job description is primarily comprised of vague statements that stress the 
Beneficiary's leadership position within the organization without delineating his specific daily tasks 
or explaining how the proposed position would meet the four-prong definition of executive capacity. 
For instance, the first element listed in the Beneficiary's job description indicates that 25% of his 
time would be devoted to creating and implementing the company's vision. However, other than 
stating that the Petitioner looks to expand its operations in the United States, it did not specifically 
define the company's "vision" or "mission" within the scope of a freight forwarding and courier 
services business. The Petitioner also did not associate any specific daily tasks with this broad area 
of responsibility. As previously noted, the actual duties themselves reveal the true nature of the 
employment. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. at 1108, aff'd, 905 F.2d 41. 
Next, while the Petitioner conveyed an understanding of the Beneficiary's high degree of 
discretionary authority in stating that he would set the company's goals and marketing strategies and 
create policies regarding the Petitioner's personnel and finances, these overall claims are vague and 
do not specify what underlying tasks the Beneficiary would carry out or what considerations he 
would take into account in setting the Petitioner's goals, strategies, and policies in the key categories 
of marketing, finance, and human resources. The Petitioner also does not explain who would 
actually carry out the marketing tasks or recruit personnel. Further, given that the Petitioner's 
existence preceded the filing of the instant petition by several years, it stands to reason that certain 
goals, strategies, and policies were already in place at the time of filing; it is therefore unclear why 
the Beneficiary would have 'to allocate approximately 35% of his time to setting, creating, and/or 
changing the previously existing goals, strategies, and policies. If USC IS finds reason to believe that 
an assertion stated in the petition is not true, USCIS may reject that assertion. See, e.g., Section 
204(b) ofthe Act, 8 U.S.C. § 1154(b); Anetekhai v. INS, 876 F.2d 1218, 1220 (5th Cir. 1989); Lu­
Ann Bakery Shop, Inc. v. Nelson, 705 F. Supp. 7, 10 (D.D.C. 1988); Systtonics Corp. v. INS, 153 F. 
Supp. 2d 7, 15 (D.D.C. 2001) . 
. 
The Petitioner also stated that the Beneficiary would allocate 10% of his time to leading, directing, 
and evaluating the work of subordinate managers and another 10% of his time conducting weekly 
meetings with the company's managers. However, to the extent that the Petitioner's organizational 
hierarchy at the time of filing, included only one manager, the reference to a management tier 
comprised of multiple managerial employees is not supported by the record and does not lead to an 
accurate portrayal ofthe Beneficiary's role in directing the management of the U.S. operation. 
While the Petitioner explains that it anticipates hiring additional employees in the future and 
illustrates this goal in its business plan, a visa petition may not be approved based on speculation of 
future eligibility or after the Petitioner or Beneficiary becomes eligible under a new set of facts. See, 
e.g., Matter of Michelin Tire Corp., 17 I&N Dec. 248 (Reg'l Comm'r 1978). Here, the Petitioner's 
organizational chart shows that it did not have multiple managers at the time of filing, thereby 
resulting in the Beneficiary himself having to fill one of the managerial positions - that of general 
manager - upon his initial transfer, along with his proposed position of president. While the 
Petitioner addresses this issue on appeal, claiming that the Beneficiary would temporarily assume the 
role of general manager only until a viable candidate is able to fill that position, such a candidate had 
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Matter of D- USA LLC 
not been found by the time the petition was filed. As such, the Petitioner's needs at the time of filing 
would not be satisfied if the Beneficiary were to exclusively focus on his proposed role as president 
of the organization. Further, the Petitioner has indicated that the Beneficiary will simultaneously fill 
two roles within the company, but has not explained how he will divide his time between his two 
positions, nor provided a detailed breakdown of his proposed duties as general manager. 
In light of the deficiencies catalogued, the Beneficiary's job description does not establish that he 
would allocate his time primarily to the performance of executive job duties. 
Further, 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, 8 U.S.C. § 110l(a)(44)(B). 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 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. 
Here, while the Petitioner has established that the Beneficiary will more likely than not establish the 
goals and policies of the company and exercise wide latitude in discretionary decision-making, the 
record as a whole does not establish that these would be his primary duti~s. As previously 
discussed, the organizational hierarchy illustrated in the matter at hand depicts only one managerial 
employee at the time the petition was filed. Therefore, the Petitioner did not have the managerial 
tier of employees through whom the Beneficiary would be able to direct the management of the 
organization. In fact, the Petitioner indicates that the Beneficiary will simultaneously fill two roles 
within the company and has not provided an estimate of how much time he would allocate to the 
general manager position, which is not claimed to be an executive position. 
\ 
The Petitioner correctly observes that a company's size alone may not be the determining factor in 
denying a visa petition for classification as a multinational manager or executive without taking into 
account the reasonable needs of the organization. See section 10l(a)(44)(C) of the Act. However, it 
is appropriate for USCIS 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 company or a "shell company" that does not conduct business in a 
regular and continuous manner. Family Inc. v. USCIS, 469 F.3d 1313 (9th Cir. 2006); Systronics 
Corp. v. INS, 153 F. Supp. 2d 7, 15 (D.D.C. 2001). 
On appeal, the Petitioner contends that its business plan establishes a reasonable need for an 
executive employee to direct its expansion in the U.S. market, which it describes as a key function of 
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(b)(6)
Matter of D-USA LLC 
its organization. It also suggests that the Director placed too much emphasis on the size of the 
company without considering its prior staffing levels or the company's use of contractors and 
support from its foreign affiliate's staff. As noted, the Petitioner did not provide any evidence of its 
staffing levels as of June 2016 and therefore did not corroborate its employment of the five 
individuals named on its organizational chart. The Petitioner emphasizes on appeal that it employed 
10 employees in 2014 and 15 employees in 2015, and has previously employed as many as eight 
staff concurrently, suggesting that the company was not fully staffed at the time offiling. Based on 
these figures and the lack of evidence of its staffing levels in June 2016, we cannot determine that 
the Petitioner had adequate staff, either direct employees or contractors, to relieve the Beneficiary 
from involvement in the day-to-day operations of the company upon his arrival to th~ United States. 
While we do not question the Petitioner's decision to transfer the Beneficiary to implement its new 
business plan, or the discretionary authority involved in implementing the plan, it must still submit 
sufficient evidence to establish how his duties would qualify as primarily executive in nature and 
how the company can currently support a qualifying executive position. 
Based on the deficiencies discussed, the Petitioner has not established that the Beneficiary would be 
employed in an executive capacity. 
III. QUALIFYING RELATIONSHIP 
In addition, while not addressed by the Director, we identify a remaining issue that impacts the 
Petitioner's eligibility, which is whether the Petitioner established that it has a qualifying 
relationship with _ , the Beneficiary's foreign employer. To establish a 
"qualifying relationship" under the Act and the regulations, the Petitioner must show that the 
Beneficiary's foreign employer and the proposed U.S. employer are the same employer (i.e. one 
entity with "branch" offices), or related as a "parent and subsidiary" or as "affiliates." See generally 
section 101(a)(15)(L) ofthe Act; 8 C.F.R. § 214.2(1). 
The pertinent regulations at 8 C.F.R. § 214.2(l)(l)(ii) define the term "qualifying organization" and 
related 
terms as follows: 
(G) QualifYing organization means 'a United States or foreign firm, corporation, or 
other legal entity which: 
(1) Meets exactly one of the qualifying relationships specified in the 
definitions of a parent, branch, affiliate or subsidiary specified in 
paragraph (1)(1 )(ii) of this section; 
(L) Affiliate means 
(1) One of two subsidiaries both of which are owned and controlled by the 
same parent or individual, or 
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(b)(6)
Matter of D- USA LLC 
(2) One of two legal entities owned and controlled by the same group of 
individuals, each'individual owning and controlling approximately the 
same share or proportion of each entity .... 
In the Form I-129, the Petitioner stated that it has an affiliate relationship with the Beneficiary's 
foreign employer.· Specifically, the Petitioner stated that the Beneficiary owns 60% and his spouse 
owns 40% of the U.S. entity while the Beneficiary owns 47%, his spouse owns 50%, and 
and each own 1% of the foreign entity. Although the 
Petitioner's ownership breakdown is reiterated on page 7 of its business plan, and stated in an 
amendment to its articles of organization filed with the Florida Secretary of State in 2013, we 
note that in the Petitioner's 2014 Form 1065, U.S. Return of Partnership Income, Schedule B-1, Part 
II, the Petitioner indicated that the Beneficiary owns a 99.99% interest in the company . 
. The regulation and case law confirm that ownership and control are the factors that must be 
examined in determining whether a qualifying relationship exists between United States and foreign 
entities for purposes of this visa classification. See Matter of Church Scientology International, 19 
I&N Dec. 593; see also Matter of Siemens Medical Systems, Inc., 19 I&N Dec. 362 (Comm'r 1986); 
Matter of Hughes, 18 I&N Dec. 289 (Comm 'r 1982). In the context of this visa petition, ownership 
refers to the direct or indirect legal right of possession of the assets of an entity with full power and 
authority to control; control means the direct or indirect legal right and authority to direct the 
establishment, management, and operations of an entity. Matter of Church Scientology 
International, 19 I&N Dec. at 595. 
In the present matter, a comparison of the Petitioner's original claim as made in the Form I-129 and 
in the Petitioner's business plan with the information provided earlier in the Petitioner's 2014 tax 
return indicates that the Petitioner's claims regarding its ownership are inconsistent. While the 
petition, business plan, and the 2014 tax return commonly indicate that the Beneficiary owns the 
majority ofthe U.S. entity, the Petitioner's tax return is inconsistent with the other two documents in 
terms of the specific percentage the Beneficiary actually owns. The Petitioner has not resolved this 
inconsistency with independent, objective evidence pointing to where the truth lies. See Matter of 
Ho, 19 I&N Dec. 582, 591-92 (BIA 1988). 
We further note that even if the Petitioner had provided consistent evidence regarding its ownership, 
the ownership breakdowns described above would not establish an affiliate relationship between the 
two entities as the Petitioner claims. To establish eligibility in this case, the Petitioner must establish 
that it and the foreign employer share common ownership and control. Control may be "de jure" by 
reason of ownership of more than 50 percent of outstanding stocks of the other entity or it may be 
"de facto" by reason of control of voting shares through partial ownership and possession of proxy 
votes. Matter of Hughes, 18 I&N Dec. 289 (Comm'r 1982). 
First, the Petitioner has not established that the two entities are owned and controlled 
by the same 
parent or individual, as required by the definition of "affiliate" at 8 C.F .R. § 214.2(1)(1 )(ii)(L )(I). 
While the evidence of record indicates that the Beneficiary owns a majority interest in the Petitioner, 
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Matter of D- USA LLC 
the evidence also indicates that the Beneficiary owns only 49.97%, i.e., less than a majority, of the 
foreign entity and does not exercise de jure control over that entity. 
Further, given that the U.S. entity is owned by two individuals with the Beneficiary owning a 
majority interest, while the foreign entity~~ owned by five individuals with the Beneficiary's spouse 
owning a 50% interest, we cannot conclude that the two legal entities in question are owned and 
controlled by the same group of individuals with each individual owning and controlling 
approximately the same share or proportion of each entity. See 8 C.F.R. § 214.2(1)(1)(ii)(L)(2). 
The Petitioner has stated that "[b]oth companies are majority owned by [the Beneficiary's spouse] 
and [the Beneficiary]." However, we are not required to accept a combination of individual 
shareholders as a single entity, so that the group may claim majority ownership, unless the group 
members have been shown to be legally bound together as a unit within the company by voting 
agreements 'Of proxies. Here, the Petitioner has neither claimed nor provided evidence that the 
Beneficiary and his spouse have such agreements or proxies in place. In fact, without such 
agreements or proxies, and based on the ownership interests described, we find that the Beneficiary 
has de jure control over the petitioning entity while his spouse has de jure control over the foreign 
entity. 
The Petitioner's statements suggest that it considers both companies to be majority owned by the 
Beneficiary and his spouse together based on their marital relationship. Spousal and familial 
relationships do not constitute qualifying relationships under the regulations. See Ore v. Clinton, 
675 F. Supp. 2d 217, 226 (D.C. Mass. 2009) (finding that the petitioner and the foreign entity did not 
qualify as "affiliates" within the precise definition set out in the regulations at 8 C.F.R. 
§ 214.2(1)(1)(ii)(L), despite petitioner's claims that the two companies "are owned and controlled by 
the same individuals, specifically the Ore family"). 
Based on the deficiencies discussed above, the Petitioner has not established that it has a qualifying 
relationship with the foreign entity. For this additional reason, the petition cannot be approved. 
IV. CONCLUSION 
The petition will be denied and the appeal dismissetl for the above stated reasons. In visa petition 
proceedings, the burden of proving eligibility for the benefit sought remains entirely with the 
petitioner. Section 291 of the A<;:t, 8 U.S.C. § 1361. Here, that burden has not been met. 
The appeal is dismissed. 
Cite as Matter of D-USA LLC, ID# 197045 (AAO Jan. 27, 2017) 
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