dismissed L-1A Case: Furniture Design

U.S. Citizenship 
and Immigration 
Services 
MATTER OF H-D-1-, INC. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: JULY 26,2017 
APPEAL OF CALIFORNIA SERVICE CENTER DECISION 
PETITION: FORM 1-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a designer and seller of artistic lamps and furniture, seeks to extenq the Beneficiary's 
temporary employment as its CEO under the L-lA nonimmigrant classification for intracompany 
transferees. 1 See Immigration and Nationality Act (the Act) section 101(a)(15)(L), 8 U.S.C. 
§ 1101(a)(15)(L). The L-lA classification allows a corporation or other legal entity (including its 
affiliate or subsidiary) to transfer a qualifying foreign employee to the United States to work 
temporarily in a managerial or executive capacity. 
The Director of the California Service Center denied the 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 claiming that it has the organizational hierarchy necessary 
to support the Beneficiary in an executive capacity. 
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)(l5)(L) ofthe 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. Id. 
1 The Petitioner previously filed an L-1 A "new office" petition on behalf of the Beneficiary, which was approved for a 
one-year period commencing on October I, 2015. A "new office" is defined as an organization that has been doing 
business in the United States through a parent, branch, affiliate, or subsidiary for less than one year. 8 C.F.R. 
§ 214.2(l)(l)(ii)(F). The regulation at 8 C.F.R. § 214.2(1)(3)(v)(C) allows a "new office" operation one year within the 
date of approval of the petition to support an executive or managerial position. 
2 The Petitioner does not claim that the Beneficiary will be employed in a managerial capacity. 
Matter of H-D-1-, Inc. 
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 and that 
the two entities are still qualifying organizations. 8 C.F.R. § 214.2(1)(14)(ii). 
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 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 of the overall purpose and stage of development of the organization. See section 1 01 (a)( 44 )(C) 
ofthe Act. 
A. Staffing 
While we will address the Beneficiary's proposed job duties below, the Director's decision was 
based primarily on a review of the Petitioner's staffing levels and structure. Specifically, the 
Director focused on the company's organizational structure and the duties of the Beneficiary's 
subordinate employees to gauge the Petitioner's ability to support the Beneficiary in an executive 
capacity and to relieve him trom having to primarily perform the operational duties of the 
Petitioner's 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 
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Matter of H-D-1-, Inc. 
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 filed the Form 1-129, Petition for a Nonimmigrant Worker, 
claiming four employees, no gross income, and a net income of -$105,303. The Petitioner initially 
provided an organizational chart depicting a five-position hierarchy with the Beneficiary in the top 
position, followed by a vice president (VP) of sales/CFO directly below the Beneficiary, a market 
analyst and sales manager both subordinate to the VP Sales/CFO, and a sales assistant at the bottom 
tier subordinate to the sales manager. The chart indicates that the position of market analyst was 
vacant at the time of filing. The Petitioner also provided job descriptions for each position within 
the hierarchy, indicating that a significant portion of the VP Sales/CFO's time would involve 
working with and overseeing the market analyst, who would be responsible for conducting market 
research and analysis, and the sales manager,3 whose focus would be on increasing the company's 
sales revenue and generating performance data. As indicated in the organizational chart, the position 
of market analyst was vacant at the time of filing, thereby indicating that the Beneficiary's 
subordinate had one, not two subordinates. It is unclear who, in light of this vacancy, would assume 
the market analyst's job duties at the time of filing and how a redistribution of job duties would 
affect the Beneficiary and the remainder of the company's three-person support staff. 
The Director issued a notice of intent to deny (NOID) advising the Petitioner that it did not provide 
sufficient evidence to establish that it would employ the Beneficiary in an executive capacity. The 
Director noted that the Beneficiary's duties and those of his subordinates must correspond to their 
respective placements within the Petitioner's organizational hierarchy. Applying this criteria to the 
facts presented, the Director observed that a number of the duties assigned to the Petitioner's VP 
Sales/CFO involved working with and overseeing the vacant market analyst position. The Director 
questioned the managerial nature of the VP Sales/CFO position and the overall lack of subordinate­
level managers within the organizational hierarchy to elevate the Beneficiary to an executive-level 
position. 
3 
The job description for the VP Sales/CFO makes repeated references to an "account manager" as one of the two 
positions subordinate to this employee. However, the Petitioner also provided an organizational chart and employee job 
descriptions, which indicate that a sales manager, rather than an account manager, reports to the VP Sales/CFO position. 
In light of these inconsistent references, it appears that the Petitioner used the sales manager and account manager titles 
for the same position. 
3 
Matter of H-D-1-, Inc. 
In response, the Petitioner provided a statement asserting that it has a "four-level organizational 
structure" comprised of four employees. The Petitioner stated that it was unable to fill the market 
analyst position because it had limited time prior to filing the instant petition and claimed that it 
would "try to hire. a professional" to fill the vacancy upon approval of the petition. The Petitioner 
also explained that the job duties previously provided for the VP Sales/CFO were prospective in 
nature and would apply to the position once this petition is approved. The Petitioner provided a· 
different job description listing the VP Sales/CFO's duties during the company's initial stage of 
operation and claimed that the VP Sales/CFO focuses on formulating sales and financial policies and 
supervising the sales manager position, which the Petitioner claimed is supervisory. 
First, with regard to the Petitioner's claim that it would fill a job vacancy in the future, we note that 
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 )(1 ). 
Thus, the Petitioner's expectation that it will hire additional employees in the future cannot be 
considered, as the Petitioner's staffing structure at the time of filing, along with other relevant 
factors, will be considered to determine eligibility. As the Petitioner did not employ the market 
analyst at the time of filing, the job description that was provided, which is partially premised on a 
staffing structure that includes a market analyst, does not accurately depict the VP Sales/CFO's job 
duties, which would likely be affected by a vacancy among her subordinate staff, leaving her to 
oversee only one employee. 
Further, we note that artificial tiers of subordinate employees and inflated job titles are not probative 
and will not establish that an organization is sufficiently complex to support an executive position. 
Merely assigning managerial position titles to the Beneficiary's subordinate staff is not sufficient to 
establish that the Petitioner has the requisite subordinate level of managerial employees through 
whom the Beneficiary would direct the management of the organization. The Petitioner must 
support its assertions with relevant, probative, and credible evidence. See Matter of Chawathe, 25 
I&N Dec. 369, 376 (AAO 2010). 
In denying the petition, the Director reiterated her concerns aboutthe lack of adequate complexity in 
the Petitioner's organizational hierarchy at the time of filing, pointing to the vacant market analyst 
position and lack of evidence showing a staff able to support a primarily executive-level position. 
On appeal, the Petitioner resubmits its organizational chart and employee job descriptions, asserting 
that the VP Sales/CFO is a managerial employee because he oversees a supervisory subordinate -
the sales manager. Even though the Beneficiary holds the senior position in the company as CEO, 
the record does not establish that the Petitioner's organizational hierarchy is equipped with a 
sufficient managerial tier of employees through whom the Beneficiary would primarily direct the 
management of the organization and focus on making organizational policies and discretionary 
decisions. The Petitioner's business plan indicates that during its first year of operation, it 
"reasonably expected to reach $500,000" in gross income and expand its staff to include a market 
analyst and a secretary. The evidence submitted shows that the Petitioner did not reach these goals, 
earning no gross income and was operating with a staff that has no market analyst or secretary. As 
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Matter of H-D-1-, Inc. 
neither of these two projected positions was filled by the time this petition was filed, it is reasonable 
for us to expect the Petitioner to clarify how it would support the Beneficiary in an executive 
capacity based on the circumstances that existed at the time of filing. 
USCIS must take into account the reasonable needs of the organization in light of the overall 
purpose and stage of development of the organization if staffing levels are used as a factor in 
determining whether an individual is acting in an executive capacity. See section 101(a)(44)(C) of 
the Act. The regulations require USCIS to examine the organizational structure and staffing levels 
of the Petitioner at the end of a new office's initial year of operations. See 8 C.F.R. 
§ 214.2(1)(14 )(ii)(D). If a business does not have the necessary staffing after one year to sufficiently 
relieve a beneficiary from performing operational and administrative tasks, that petitioner is 
ineligible for an extension. Furthermore, the reasonable needs of the Petitioner will not supersede 
the requirement that the Beneficiary must be "primarily" employed in an executive capacity, 
spending his time primarily on executive duties. See section 10l(a)(44)(B) ofthe Act. 
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 the Beneficiary's 
discretionary authority over the business, the evidence is not persuasive in establishing that the 
Petitioner's organization at the time of filing was sufficient to support the Beneficiary in an 
executive position where he would be primarily focused on directing the management of the 
company. 
B. Duties 
When examining the executive capacity of the Beneficiary, we will also look to the Petitioner's 
description of the job duties as a key indicator of whether the proposed employment fits the statutory 
definition. 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). 
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. 
In its initial cover letter, the Petitioner stated that it built a large showroom, imported product samples, 
and expected to hire up to six employees by the end of its "actual" first year of operation, explaining that 
the Beneficiary had only been in the United States to run the business for eight months. The Petitioner 
also provided a percentage breakdown claiming that 55%, i.e., the majority of the Beneficiary's time, 
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Matter of H-D-1-, Inc. 
would be allocated to making hiring and firing decisions regarding two of the company's employees 
- the VP Sales/CFO and secretary - and evaluating their respective performances, directing the VP 
Sales/CFO in the implementation of the annual business plan, and conducting regular reviews of the 
company's performance. The Petitioner did not specify the parameters or data the Beneficiary 
would review in evaluating company performance or state who would provide the underlying 
performance data. The Petitioner also did not elaborate on the specifics involved in directing the VP 
Sales/CFO in the implementation of the business plan. The Petitioner also stated that 20% of the 
Beneficiary's time would be allocated to reviewing and approving the annual business plan and 
determining whether to make adjustments to the budget. However, these broad statements could 
generally apply to most CEOs in any industry and are not indicative of duties that the Beneficiary 
would perform on a day-to-day basis within the context of the Petitioner's business. 
Lastly, the Petitioner indicated that 15% of the Beneficiary's time would involve establishing 
business development strategies and adjusting the Petitioner's organizational structure and 
"management team." However, it is unclear that developing business strategies or making staffing 
adjustments are job duties that the Beneficiary would perform on a routine daily or even weekly 
basis. Rather, it appears that these, and any other staffing adjustments, would only require the 
Beneficiary's time on an as-needed basis and thus do not represent the types of tasks that would 
likely consume the Beneficiary's time as part of a regular daily or weekly routine. 
In response to the NOID, the Petitioner provided a statement clarifying that the job description 
submitted in the initial supporting statement listed the Beneficiary's proposed job duties and was not 
reflective of duties he performed during the Petitioner's initial year of operation. The Petitioner 
provided a list of the Beneficiary's six responsibilities, which applied to his initial year of 
employment with the U.S. entity. Namely, the Petitioner claimed that the Beneficiary focused his 
attention primarily on directing the VP Sales/CFO in implementing the business plan and 
establishing the Petitioner's first showroom, evaluating that individual's performance for 
competency and efficiency, and reviewing the company's performance with respect to the annual 
business plan. Instead of expanding on the Beneficiary's specific job duties, the Petitioner 
emphasized executive characteristics of the proposed position, pointing to the Beneficiary's 
unfettered decision-making authority with regard to all business matters, including business 
. strategies, the Petitioner's organizational structure, and all human resources concerns, such as hiring, 
firing, and overseeing the work of the VP Sales/CFO. 
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 resubmits the original job description, maintaining the claim that the 
Beneficiary will be employed in an executive capacity. However, the Petitioner does not supplement 
the record with additional information about the Beneficiary's specific daily job duties. The actual 
duties themselves reveal the true nature of the employment. 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. 
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Matter of H-D-I-, Inc. 
1989), aff'd, 905 F .2d 41 (2d. Cir. 1990). Specifics are clearly an important indication of whether a 
beneficiary's duties are primarily executive or managerial in nature, otherwise meeting the 
definitions would simply be a matter of reiterating the regulations. !d. Given the absence of this 
critical information establishing precisely what actual tasks the Beneficiary would perform within 
the context of a four-person retail operation, the Petitioner has not established that he would 
primarily perform tasks of an executive nature. 
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. DOING BUSINESS FOR THE PREVIOUS YEAR 
In addition, while not addressed in the Director's decision, we find that the record lacks sufficient 
evidence to establish, as required, that the Petitioner has been doing business for the previous year. 
8 C.F .R. § 214.2(1)(14 )(ii)(B); see also 8 C.F .R. § 214.2(1)(1 )(ii)(H) (defining "doing business"). In 
the Form I-129 and support letter, the Petitioner conceded that it had zero gross annual income and 
no revenue as of the end of August 2016.4 The Petitioner received its first and only documented 
shipment of goods for its showroom in July 2016, only two months prior to the date this petition was 
filed, and has not documented any sales transactions or other evidence that it has been engaged in the 
regular, systematic, and continuous provision of goods or services. 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 Petitioner is still doing business. 
ORDER: The appeal is dismissed. 
Cite as Matter of H-D-I-, Inc., ID# 488260 (AAO July 26, 2017) 
4 The petition was filed in September 2016.