dismissed L-1A Case: Gps Services

U.S. Citizenship 
and Immigration 
Services 
MATTER OF T-S-, LLC 
APPEAL OF VERMONT SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: APR. 19,2018 
PETITION: FORM 1-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a global positioning service (GPS) device seller and service provider, seeks to 
continue the Beneficiary's employment as its president under the L-lA nonimmigrant classification 
for intracompany transferees.
1 
See Immigration and Nationality Act (the Act) section IOI(a)(IS)(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 man-agerial or executive capacity. 
The Director of the Vermont Service Center denied the petition, concluding that the record did not 
establish that the Beneficiary would be employed in a managerial or executive capacity under the 
extended petition. 
On appeaL the Petitioner asserts that it has submitted sufficiently detailed duties and supp011ing 
documentation demonstrating that the Beneficiary would act in an executive capacity. 
Upon de novo review, we will dismiss the appeaL 
L LEGAL FRAMEWORK 
To establish eligibility lor the L-1 A nonimmigrant visa classification, a qualifying organization must 
have employed the beneficiary in a managerial or executive capacity tor one continuous year within 
three years preceding the beneficiary's application for admission into the United States. 8 C.F.R. 
§ 214.2(l)(3)(v)(B). In addition, the beneficiary must seek to enter the United States temporarily to 
continue rendering his or her services to the same employer or a subsidiary or artiliate thereof in a 
managerial or executive capacity. !d. 
1 The Petitioner previously filed a '·new office .. petition on the Beneficiary's behalf which was approved for the period 
August 16. 2016. until July 30. 2017. A ··new office·' is 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(1)(1)(ii)(F). The 
regulation at 8 C.F.R. § 214.2(1)(3)(v)(C) allows a "new office" operation one year within the date of approval of the 
petition to support an e:-.:ccutive or managerial position. 
Maller of 7:s-. LLC 
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). 
II. U.S. EMPLOYMENT IN AN EXECUTIVE CAPACITY 
The sole issue to be addressed is whether the Petitioner has established that the Beneficiary would 
act in an executive capacity under the extended petition. The Petitioner does not claim that the 
Beneficiary will be employed in a managerial capacity. Therefore, we restrict our analysis to 
whether the Beneficiary will be employed in an executive capacity. 
The statute defines an "executive capacity'' as 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 IOI(a)(44)(B) ofthe Act. 
When examining the executive capacity of a given beneficiary, we will rev1ew 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 an executive 
capacity. See 8 C.F.R. § 214.2(1)(3)(ii). Beyond the required description of the job duties, U.S. 
Citizenship and Immigration Services (USCIS) examines the company's organizational structure, the 
duties of a beneficiary's subordinate employees, the presence of other employees to relieve a 
beneficiary from performing operational duties, the nature of the business, and any other factors that 
will contribute to understanding a beneficiary's actual duties and role in a business. Accordingly, 
we will discuss evidence regarding the Beneficiary's job duties along with evidence of the nature of 
the Petitioner's business, its staffing levels, and its organizational structure. 
A. Duties 
In denying the petition, the Director concluded that the Petitioner did not appear to have a sufficient 
organizational complexity to support the Beneficiary in a qualifying executive capacity. The 
Director determined that the Beneficiary's duties reiterated the regulatory definition of an executive 
and stated that the Petitioner did not submit supporting documentation to substantiate his 
performance of executive level duties. On appeal, the Petitioner asserts that it has provided specific 
examples of the Beneficiary's executive duties and supporting documentation to corroborate them. 
Based on the 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. 
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Mauer ojl~S-. LLC 
1991) (unpublished table decision). Second, the Petitioner must prove that the Beneliciary 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 slated that it was established in 2016 "with the goal of bringing premium global 
positioning services and tracking devices to businesses and individual consumers in the United 
States." The Petitioner stated that as president the Beneficiary would be tasked with "formulating 
short- and long-term policies, goals, strategies, procedures and programs," noting his allcndance al 
"business coaching classes," his engagement of a "personal business coach," and meetings "with 
potential investors and business men." The Petitioner also indicated that the Beneliciary would 
devote his time to "planning and directing the company's tinancial, governance, and commercial 
operations," noting his implementation of a "Rockefeller Habits managing methodology" and 
regular staff meetings. Further, the Petitioner explained that the Beneficiary would be responsible 
for "coordinating and setting accurate budgets ... for administration and marketing," including 
reviewing financial statements prepared by an "accounting team." It also stated that the Beneficiary 
would spend his time "hiring and overseeing the company's management team and delegating 
superviSIOn. It further emphasized the Beneficiary's decision to adopt a particular hiring 
philosophy based on "business relationships and referrals." 
In addition, the Petitioner stated that the Bcneliciary would devote his time to performing "annual 
evaluations and ensuring [the] highest level of customer/client service," including adopting and 
implementing employee evaluation forms used by the foreign employer. The Petitioner also 
indicated that the Beneficiary would be responsible for supervising "subordinate employees and 
subcontractors who perform the day-to-day work," "exploring and identifying the need for fi1rther 
investment," "coordinating international strategic planning," and participating in foreign employer 
monthly and quarterly meetings. lt further explained that the Beneficiary would devote his time to 
"negotiating with banks and vendors and suppliers of GPS products and services," meeting with 
"potential vendors and service providers," "determining with shareholders updated marketing and 
promotion strategies," "working to develop a marketing strategy," "analyzing strategic alliances," 
and identifying new opportunities for the introduction of new services. 
The Petitioner has not submitted a sufticiently detailed duty description that describes his day-to-day 
executive-level duties or that credibly establishes that he would devote his time primarily to 
qualifying tasks. The Beneficiary's duty description includes several general duties that could apply 
to any executive acting in any business or industry and they do not provide insight into the actual 
nature of his role. The Petitioner provided insutlicient examples and little supporting documentation 
to demonstrate the Beneficiary's performance of qualifying duties, such as short-term and long-term 
goals, strategies, procedures, and programs he has set, commercial operations he manages, budgets 
he set lor administration or marketing, further investment he sought to secure, international strategic 
planning he implemented, key issues or priorities he handled, vendors or service providers he met 
with, marketing or promotion strategies he updated or developed, or new services he introduced. 
Specilics are clearly an important indication of whether a beneficiary's duties are primarily 
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Matter 'if T-S-, LLC 
executive or managerial in nature, otherwise meeting the definitions would simply be a matter of 
reiterating the regulations. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1103, 1108 (E.D.N.Y. 1989), 
afj'd, 905 F.2d 41 (2d. Cir. 1990). 
To the extent that the Beneficiary submits specifics and documentation regarding the Beneficiary's 
dailv executive duties we do not find that these credibly demonstrate that he is primarily focused on . . 
executive level tasks. For instance, the Petitioner references the Beneficiary's attendance at 
"business coaching classes," his discussions with a "business coach," his implementation of a 
"Rockefeller Habits managing philosophy," and the adoption of a hiring philosophy based upon 
"business relationships and referrals." Not only are the nature of these philosophies unclear, the 
Petitioner does not demonstrate or document how these activities translate into day-to-day executive 
level duties on the part of the Beneficiary. 
The Petitioner also refers to the Beneficiary's negotiations with banks, vendors, and suppliers. 
However, the Petitioner submits documentation indicating that these negotiations have been limited. 
For instance, evidence of these asserted negotiations includes a one-time non-binding memorandum 
of understanding with a potential GPS device provider. In addition, the Petitioner submitted 
boilerplate contracts with a bank, an accounting service, and a payroll service provider for the 
transfer of funds, to complete the company's annual IRS filings, and to service the company's 
payroll for $200 per quarter. This supporting documentation does not demonstrate that the 
Beneficiary is continually performing executive level negotiations with other vendors, suppliers, and 
subcontractors as asserted. Likewise, the Petitioner provides an asserted "manual of conduct, 
general policies and human resources policies" it asserts was formulated by the Beneficiary. We 
lind this evidence similarly non-probative in demonstrating the Beneliciary's regular performance of 
executive level duties. The claimed policy makes no reference to the Petitioner's specific business 
and sets forth only general principles that could apply to any employee in any industry such as being 
"truthful, transparent, accurate, and complete" or maintaining ·"harmony with ... superiors and co­
workers." In sum, the Petitioner has not sufficiently documented that the Beneficiary was primarily 
devoted to executive level duties as of the date of the petition. 
Even though the Beneficiary holds a senior position within the organization, the fact that he will 
manage or direct a business does not necessarily establish eligibility for classification as an 
intracompany transferee in an executive capacity within the meaning of section IOI(a)(44) of the 
Act. By statute, eligibility for this classification requires that the duties of a position be "primarily" 
executive in nature. Sections IOI(A)(44)(B) of the Act. The Bcneliciary may exercise discretion 
over the Petitioner's day-to-day operations and possess the requisite level of authority with respect to 
discretionary decision-making; however, the position descriptions alone are insufficient to establish 
that his actual duties would be primarily executive in nature. 
B. Stafling 
If stafling levels are used as a factor in determining whether an individual is acting in a managerial 
or executive capacity, USC IS takes into account the reasonable needs of the organization, in light of 
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Mauer of T-S-. LLC 
the overall purpose and stage of development of the organization. See section IOI(a)(44)(C) of the 
Act. 
In support of the petition 111 June 20I 7, the Petitioner stated that it employed four individuals, 
including the Beneficiary. A submitted organizational chart reflected that the Bcncliciary oversaw 
an operations manager, who in turn supervised an administrative assistant and a "technical specialist 
#!." The Petitioner indicated that by the end of 2017 it planned on hiring six additional employees, 
including an installer, a system specialist, a sales representative, an operations assistant. a customer 
service representative, and a receptionist. The Petitioner explained that the sale of the company's 
products was handled by the technical specialist, with oversight by the operations manager. 
The Petitioner further stated that the operations manager handled "sales to executives of the 
company's larger clients" and that he was responsible for hiring and tiring the company's lower 
level employees, meeting with the company's sales and customer service representatives, 
establishing and maintaining a training program, providing guidance to subordinate managers, 
leading a team of installers, and overseeing a marketing and promotion strategy. The Petitioner 
noted that "its staff fully relieves [the Beneficiary] of performing non-qualifying duties." However, 
later in a submitted business plan, the Petitioner stated that "the [Beneficiary] will be relieved tram 
performing non-qualifying duties by the end of the 2017." 
In response to the request for evidence (RFE) in September 2017, the Petitioner submitted an 
entirely new organizational chart reflecting that the company consisted of live departments 
supervised by the Beneliciary including operations, marketing, administrative, accounting, and 
innovation and technology departments. The chart indicated that the operations manager supervised 
an "outsourced contractor" responsible for installations and vacant operations assistant. sales 
representative, and customer service representative positions. The Petitioner further explained that 
the marketing department was overseen by a foreign employer manager and that the administrative 
department was directed by another foreign employee, the human resources director.' It also stated 
that the human resources director supervised an executive assistant, also a foreign employee, and an 
administrative assistant. In addition, the Petitioner indicated that the innovation and technology 
department was made up of a new employee, the IT manager, and a technical specialist. Lastly, the 
chart specitied that the accounting department consisted of a foreign accounting and budget manager 
and a contractor handling accounting matters. 
On appeal, the Petitioner states that the Beneficiary oversees live departments, including subordinate 
managers and prol'essionals. The Petitioner also emphasizes four foreign employees and asserts that 
they support its operations in the United States relieving the Beneficiary from performing non­
qualifying operational duties. It contends that the Director did not consider the totality of the 
evidence and the reasonable needs of the Petitioner. 
As a preliminary matter. the Petitioner has presented two materially different organizational 
structures, only approximately three months apart, leaving question as to its actual organizational 
structure. In support of the petition, the Petitioner did not reference the engagement of foreign 
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Matter of T-S-. LLC 
employees within the Petitioner's organizational structure; however in response to the RFE, it 
includes five foreign employees in its organizational chart, equaling the number of U.S. based 
employees. The Petitioner also submits no evidence substantiating that it regularly engages i(Jrcign · 
employees as a part of its operations or that these .employees can be considered a part of its 
organizational chart as of the date of the petition. In sum, this leaves substantial question as to the 
credibility of the Petitioner's asserted organizational chart submitted in response to the RFE. The 
Petitioner's apparent materialmodilication of the record indicates that its starting was not sullicient 
to support the Beneficiary in an executive capacity as of the date of the petition. The Petitioner must 
resolve discrepancies in the record with independent, objective evidence pointing to where the truth 
lies. Maller ofHo, 19 !&N Dec. 582, 591-92 (BIA 1988). 
The Petitioner must establish that all eligibility- requirements for the immigration benefit have been 
satisfied from the time of the tiling and continuing through adjudication. 8 C.F.R. § I03.2(b)(!). As 
such, the relevant organizational chart to analyze is that existing ·as of the date of the petition. The 
evidence indicates that the stafling of the Petitioner was not sufficient to support the Beneliciary in 
an executive capacity as of the date of the petition. As stated, the Petitioner indicated that it only 
employed three subordinates, beyond the Beneficiary, as of the date of the petition; namely, an 
operations manager supervising a technical specialist and an administrative assistant. However, the 
Petitioner's support letters and business plan reveal numerous non-qualifying operational duties, 
including handling "numerous installations," sales activities, service of GPS devices, delivery of 
orders, deployment of devices, generation of sales leads, marketing campaigns, handling customer 
inquiries, "24x7, 365" technical support, software support and updates, amongst other operational 
level duties. It appears unlikely that an operations manager and two other operational level 
employees would be sufficient to perform this extensive list of operational functions. 
Further, the Petitioner does not specify who was performing these tasks as of the date of the petition. 
The stated duties of the operations manager include few operational-level tasks, leaving less clarity 
as to who was performing these duties as of the date of the petition. In fact, the operations 
manager's duties retlect that he would be tasked with overseeing sales and customer support 
representatives, establishing and maintaining a training program, providing guidance to subordinate 
managers, and leading a team of installers. However, as of the date of the petition, the submitted 
organizational chart does not indicate that the Beneficiary's sole subordinate, the operations 
manager, has subordinate managers or multiple sale representatives, or that the Petitioner employs "a 
team of installers." 
The Petitioner also asserted that it engages independent contractors that perform non-qualifying 
operational tasks for the business, including a vendor handling installations and another engaged in 
accounting matters. However, the Petitioner submits little supporting evidence to substantiate this 
assertion. For instance, there is little indication on the record that the Petitioner was regularly 
engaging an installation contractor as of the date of the petition; in fact, there was no mention of this 
contractor in support of the petition. In addition, although the Petitioner did submit evidence that it 
signed a contract with an accounting contractor to complete its Form IRS, U.S. Return of Partnership 
Income and a Form I 040 NR, U.S. Nonresident Alien Income Tax Return, this contract rellects that 
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Maller of T-S-. LLC 
these services would amount to less than $2,250 during 2017. This evidence does not indicate that 
this contractor was regularly hired as an accounting resource or that it could be considered part of an 
"accounting department" within the company as asserted. In short, the Petitioner has provided little 
evidence to indicate that it employed independent contractors to relieve the Beneficiary and his few 
subordinates from non-qualifying operational tasks. 
Therefore, without clarification and sufficient supporting evidence as to which employees were 
performing the-numerous non-qualifying operational duties of the business, it appears that the 
Beneficiary was substantially engaged in these duties as of the date of the petition. Indeed, the 
Petitioner stated in a provided business plan that the Beneficiary would not be relieved of these tasks 
until the end of 2017, several months after the date of the petition. The evidence does not indicate 
that, as of the date of the petition, the Beneficiary was removed from performing non-qualifying 
operational tasks and that he primarily spent his time focusing on executive level duties. An 
employee who "primarily" performs the tasks necessary to produce a product or to provide services 
is not considered to be "primarily" employed in an executive capacity. See. e.g, sections 
I 0 I (a)( 44 )(A) and (13) of the Act (requiring that one "primarily" perform the enumerated managerial 
or executive duties); Maller of" Church Scientology In/'/, 19 I&N Dec. 593, 604 (Comm'r 1988). 
On appeal, the Petitioner also emphasizes the applicability of an adopted decision to the current 
matter asserting that it supports the Beneficiary's eligibility. See Matter of Z-A-, Inc., Adopted 
Decision 20I6-02 (AAO Apr. 14, 2016). However, we do not tind the Petitioner's reference to this 
matter persuasive. We note that Muller of" Z-A- involved an L-1 A function manager with no 
subordinates in the United States. Also, that case involved a manager, not an executive, as the 
Petitioner asserts in this matter. Regardless, we acknowledge that Maller of"Z-A- took into account 
the beneficiary's foreign subordinates in assessing whether he qualified as a manager. However, the 
petitioner in Maller of' Z-A- submitted "substantial evidence relating to the support provided by 
overseas staff'' Here, the Petitioner submits little to no evidence of its engagement of foreign 
employees in support of its operations. In fact, this asserted foreign employee support was not 
mentioned as of the date of the petition, but suddenly emphasized it in response to the RFE and on 
appeal without supporting evidence .. In addition, in Matter of Z-A- we also pointed to evidence of 
foreign subordinates performing "production planning, technical support. research and development, 
sales, logistics, and distribution for the U.S. market." In contrast, the Petitioner provides no 
supporting evidence of its foreign employees performing these types of operational level tasks. 
As noted, the Petitioner asserts that the Beneficiary qualifies as an executive. 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 I 0 I (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 
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Mauer of T-S-. LLC 
must also exercise '.'wide latitude in discretionary decision making" and receive only "general 
supervision or direction trom higher level executives, the board of directors, or stockholders of the 
organization." !d. 
However, as we have discussed, the Petitioner has not sufficiently demonstrated that the Beneficiary 
had a subordinate level of managerial employees to direct as necessary to allow him to primarily 
locus on the broad goals and policies of the organization rather than the day-to-day operations of the 
enterprise. The evidence indicates that the Petitioner was engaged in a wide range of operational 
activities for which it appears to not have sufficient employees. Likewise, the Petitioner docs not 
clearly and credibly describe and document the Beneficiary's day-to-clay executive duties. For these 
reasons, the Petitioner has not established that the Beneficiary would act in an executive capacity as 
of the date of the petition's filing. The regulation at 8 C.F.R. § 214.2(1)(3)(v)(C) only allows the 
intended U.S. operation one year within the elate of approval of the petition to support an executive 
position. There is no provision in USCIS regulations allowing for an extension of this one-year 
period. If the business does not have the necessary starting after one year to sufficiently relieve the 
Beneficiary trom performing operational and administrative tasks, the Petitioner is ineligible for an 
extension. For these reasons, the appeal must be dismissed. 
Ill. 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. 
ORDER: The appeal is dismissed. 
Cite as ivlallerofT-S-. Ll.C ID# 1176109 (AAO Apr, 19, 2018) 
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