dismissed L-1A Case: Grocery Store

MATTER OF A-F-C- CORP. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: AUG. 9, 2018 
APPEAL OF CALIFORNIA SERVICE CENTER DECISION 
PETITION: FORM 1-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a grocery store, seeks to continue the Beneficiary's temporary employment as general 
manager under the L-1 A nonimmigrant classification for intracompany transferees. 1 Immigration and 
Nationality Act (the Act) section 10l(a)(l5)(L), 8 U.S.C. § 110l(a)(l5)(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 capa~ity. 
The Director of the California Service Center denied the petition, concluding that the record did not 
establish, as required, that the Petitioner will employ the Beneficiary in the United States in a 
managerial or executive capacity. 
The matter is now before us on appeal. On appeal, the Petitioner states that the Director did not give 
the Petitioner a fair opportunity to prevent the denial of the petition, because a prior request for 
evidence (RFE) did not raise the principal issue cited in the denial notice .. 
Upon de novo review, we will dismiss the appeal. 
I. LEGAL FRAMEWORK 
To establish eligibility for the L-IA nonimmigrant visa classification, a qualifying organization must 
have employed the beneficiary in a managerial or executive -capacity for one continuous year within 
three ~years preceding the beneficiary's application for admission into the United States. 8 C.F.R. 
§ 2 l 4.2(1)(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 emplorer or a subsidiary or affiliate thereof in a 
managerial or executive capacity. Id. 
1 The Petitioner previously filed a "new office" petition on the Beneficiary's behalf which was approved for the period 
from November 16, 2016 until October 31, 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 executive or managerial position. 
Matter of A-F-C- Corp. 
A petitioner seeking to extend an L-1 A petition that involved a new office must describe the 
beneficiary's duties during the previous year and under the extended petition, and the staffing of the 
new operation. The petitioner's evidence must show the numbers and types of positions held; 
financial status; that it has been doing business for the previous year; and that it maintains a 
qualifying relationship with the beneficiary's foreign employer. 8 C.F.R. § 214.2(1)(14)(ii). 
II. DEFINITIONS 
"Managerial capacity" means an assignment within an organization in which the employee primarily 
manages the organization, or a department, subdivision, function, or component of the organization; 
supervises and controls the work of other supervisory, professional, or managerial employees, or 
manages an essential function within the organization, or a department or subdivision of the 
organization; has authority over personnel actions or functions at a senior level within the 
organizational hierarchy or with respect to the function managed; and exercises discretion over the 
day-to-day operations of the activity or function for which the employee has authority. -_ Section 
10l(a)(44)(A) of the Act. 
"Executive capacity" means an assignment within an organization in which the employee primarily 
directs the management of the organization or a major component or function of the organization; 
establishes the goals and policies of the organization, component, or function; exercises wide 
latitude in discretionary decision-making; and receives only general supervision or direction from 
higher-level executives, the board of directors, or stockholders of the organization. Section 
101(a)(44)(B) ofthe Act. 
Based on the statutory definitions of managerial and 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 managerial or 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. 
III. U.S. EMPLOYMENT IN A MANAGERIAL OR EXECUTIVE CAPACITY 
The Director denied the petition based on a finding that the Petitioner did not establish that it will 
employ the Beneficiary in a managerial or executive capacity. 
As a threshold issue, we note that the Petitioner indicated, on the petition form, that the Beneficiary 
would open a new office. As a result, the Director adjudicated the petition under the terms 
established for new office petitions. By definition, a new office has been doing business in the 
United States for less than one year. 8 C.F.R. § 214.2(1)(1 )(ii)(F). The requirements for a new office 
petition, set forth at 8 C.F.R. § 2 l 4.2(1)(3)(v), are different than those for petitions from more 
established businesses. 
. 2 
Maller of A-F-C- Corp. 
The petition before us, however, is not truly a new office petition. Rather, the petition seeks to 
extend status that the Beneficiary initially obtained through a prior new office petition. Because a 
new office must have been doing business for less than one year, a subsequent petition can extend 
the Beneficiary's L-lA status, but cannot extend the Petitioner's designation as a new office. 
Because the Petitioner is no longer a new office, the Director should not have adjudicated the 
petition under the special standards of a new office petition. Nevertheless, the impact of this error 
did not affect the Petitioner's ability to prepare its appeal as the specific points raised by the Director 
(concerning the Beneficiary's duties and the company's staffing) are also relevant to new office 
extension petitions. Therefore, we consider the erroneous "new office" reference harmless and will 
consider the petition de novo under the appropriate provisions. 
We note that the Petitioner organized its initial submission in accordance with the requirements of a 
new office extension (found at 8 C.F.R. § 214.2(1)(14)(ii)), rather than the requirements of a new 
office petition. Also, the RFE listed the "Requirements for New Office Extensions." Therefore, the 
Petitioner is aware of the proper standards for such cases. 1 
A. Staffing 
The Director's decision focused on the Petitioner's staffing, and therefore we begin our discussion 
on that issue. We review the totality of the record when examining the claimed managerial or 
executive capacity of a beneficiary, including the company's organizational structure, the duties of a 
beneficiary's subordjnate 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. If staffing levels are used as a 
factor in determining whether an individual is acting in a managerial or executive capacity, we 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 101(a)(44)(C) of the Act. 
A petitioner seeking an extension after a new office petition for a manager or executive must 
describe the staffing of the new operation, including the number of employees and types of positions 
held, and submit evidence of wages paid to employees. 8 C.F.R. § 214.2(1)(14)(ii)(D). 
The Petitioner's organizational chart showed the following structure at the time of filing: 
General Manager [the Beneficiary] 
Food Department Mgr. 
I 
4 Clerks 
(2 Meat, 1 Vegetable, 1 Seafood) 
I 
Store Manager 
Grocery Department Mgr. 
I 
Grocery -Clerk 
3 
Financial & Administrative 
Department Mgr. 
I 
2 Cashiers 
Maller of A-F-C- Corp. 
The chart also showed a Marketing Department with a manager, marketing specialist, and customer 
service specialist, but all those positions were vacant at the time of filing. 
The Petitioner stated that the store manager would direct, oversee, and supervise the day-to-day 
operation of the store. 
In the RFE, the Director requested additional information about the subordinate positions, and tax 
and payroll documentation, to establish that the company "has an organizational structure sufficient 
- to elevate the beneficiary to a position that is primarily managerial or executive in nature." The 
Director also stated that the Petitioner had not established that the Beneficiary's higher-ranking 
subordinates "are primarily involved with managerial or supervisory duties." In response, the 
Petitioner stated that it "currently employs 9 employees" in an "organizational hierarchy [that] 
clearly relieves the beneficiary from the performance of day-to-day duties and supervising non­
professional employees." 
The Petitioner's response to the RFE showed that three additional positions (grocery department 
manager, grocery clerk, and financial and administrative department manager) had become vacant, 
leaving two departments entirely . unstaffed and three out of four department manager positions 
unfilled. The Petitioner did not explain who performed the duties of the department manager 
positions in the absence of those_ managers. 
Tax and payroll records from before and after the filing date showed that the Beneficiary earned 
$5000 per month, and the store manager earned $1491 per month. 2 Each remaining subordinate, 
including those with managerial titles, earned $1020 or less per month. 
In the denial notice, the Director concluded that most of the employees appear to "work part-time or 
less than part-time," because their salaries are too low for full-time employment at California's 2017 
small-business minimum wage of $10 per hour. The Director found that the Petitioner had not 
established that the company would be sufficiently staffed to relieve the Beneficiary from primarily 
performing non-qualifying operational tasks. 
On appeal, the Petitioner protests that "the bases for the proposed denial were not specified in the 
RFE," and therefore the "Petitioner was not able to have adequate notice and sufficient information 
to respond." The Petitioner offers no other argument on appeal. 
The regulations do not require the Director to warn the Petitioner in advance of all possible grounds 
for denial. If the Petitioner's initial evidence does not demonstrate eligibility, then the regulations 
2 The Director concluded, from payroll records, that the store manager earned only $6707 per year, but that employee 
began working in August 2017; the stated figure represents only four and a half months' pay. The store manager's 
annual salary is actually $17,886 per year. 
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Matter of A-F-C- Corp. 
give the Director the discretion to request further evidence or simply deny the petition. See 8 C.F.R. 
§ 103.2(b)(8)(ii) and (iii). 
In this instance, the Director did issue an RFE, and then determined the evidence submitted in 
response did not establish eligibility. In such a case, the Director is under no obligation to issue a 
second RFE or a notice of intent to deny. 
The Petitioner cites 8 C.F.R. § 103.2(b)(8)(iv), which requires that a request for evidence must 
specify the type of evidence required, sufficient to give the petitioner adequate notice and sufficient 
information to respond. In this instance, the Director requested "a statement describing the staffing 
of the new operation," and "[e]vidence of wages ... paid to employees." These requests conform to 
the requirements at 8 C.F.R. § 214.2(1)(14)(ii)(D). The Director also stated that, from the available 
evidence, the Beneficiary appeared to be a supervisor rather than a manager or executive, and that 
the Petitioner had "not established that the U.S. business has an organizational structure sufficient to 
elevate the Beneficiary to a position that is primarily managerial or executive in nature." 
The Director requested wage documentation for subordinates, but did not state that the submission of -
this evidence would automatically result in approval of the petition. Rather, the Director needed to 
examine the evidence in order to determine the extent to which other workers would be available to 
relieve the Beneficiary from performing non-qualifying tasks. 
Furthermore, although the Petitioner protests that it should have had the opportunity to respond to 
the Director's finding that the company is not sufficiently staffed to permit the Beneficiary to work 
primarily as a manager or executive, the appeal itself is such an opportunity. The Petitioner offers 
no substantive response to the Director's finding, and does not say what arguments or evidence it 
would have provided earlier in response to an RFE that specifically discussed salary figures. 
The record shows that the store is staffed by part-time employees, who have dwindled in number 
from 11 at the time of filing in October 2017 to 8 in January 2018. We note that a company's size 
alone, without taking into account the reasonable needs of the organization, may not be the 
determining factor in denying a visa petition for classification as a multinational manager or 
executive. See section 10l(a)(44)(C) of the Act. However, it is appropriate for U.S. Citizenship and 
Immigration Services (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. See, e.g., Family Inc .. 469 F.3d 1313; Syslronics Corp. v. 
INS, 153 F. Supp. 2d 7, 15 (D.D.C. 2001). 
The Petitioner has not shown that the store is adequately staffed, at any given time, to allow the 
Beneficiary to focus primarily on managerial or executive responsibilities. The organizational chart 
shows layers of supervision, but the supervisors do not earn enough to be lawfully employed 
throughout the operating hours of a typical grocery store. In January 2018, two departments were 
entirely unstaffed, which devolved more responsibilities onto the smaller number of remaining 
employees. 
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Matter of A-F-C-·Corp. 
For these reasons, we find that the Petitioner has not established that the company is sufficiently 
staffed to relieve the Beneficiary from primarily performing non-qualifying tasks. 
B. Duties 
When examining the managerial or executive capacity'of a given beneficiary, we will look 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(1)(3)(ii). 
A petition to extend L-1 A status after a new office petition must include a statement of the duties 
performed by the beneficiary for the previous year and the duties the beneficiary will perform under 
the extended petition. 8 C.F .R. § 214.2(1 )(14 )(ii)( C). 
The Petitioner stated that, during the year covered by the new office petition, the Petitioner 
performed the following tasks: 
• "He directed the Store Manager . . . to conduct marketing research and competlt10n 
research," and based on the report, decided that the store should sell live seafood; 
• Negotiated with suppliers; 
• Added dim sum to the store's existing hot food offerings (with subordinates researching 
menu options and supply chains); and 
• Hired subordinate managers and met with them weekly. 
The Petitioner provided a breakdown, paraphrased below, of how the Beneficiary would spend his 
time under the extended petition: 
• Final Decision Making (25% of his time): "[S]tudying marketing and financial 
opportunities, making projections and determining achievable objectives," and making 
"decisions regarding marketing, sales plans, and strategies designed to generate revenue," 
and "retainer agreements ... [for] outside professional services" such as accounting; 
• Establish Company's Goals and Polices (20%): Review "product trends and consumer 
preferences" and adjust pricing and promotion in response to competitors' strategies; 
• Managing Operations of Different Departments (20%): Meet with department managers 
to discuss "daily departmental activities along with difficulties and challenges"; 
• Communicate with Foreign Parent Company (10%): Report on the Petitioner's "overall 
progress, external challenges, current affairs and . . . financial status," and discuss the 
decisions made on behalf of the company; 
• Financial and Budget Management (10%): Create, review, and optimize budget, and 
"[a]pprove, deny, or modify funding requests from subordinate employees"; 
• Hiring and Firing of All Staff (10%): Conduct final jot, interviews and make final hiring, 
firing, and recruiting decisions based on subordinates' recommendations; 
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Matter of A-F-C- Corp. 
• Consult with Outside Marketing/Advertising Agencies (2.5%): Meet with marketing and 
advertising companies and evaluate results of promotional efforts; 
• Consult Legal Counsel Regarding Company's Internal Affairs (2.5%): Outside counsel 
will advise on compliance with laws and internal policies. 
In the RFE, the Director stated that the Beneficiary appears to "prima~ily be involved with the day­
to-day, non-qualifying duties of the business," and the direct supervision of non-professional 
employees. The Petitioner's response to the RFE did not directly address this concern. As we have 
noted above, one department was wholly unstaffed at the time of filing, and a second became vacant 
shortly afterward. Therefore, the Beneficiary would not spend any time meeting with management 
or staff of those departments, and the question arises as to who performs the work of those 
departments in the absence of dedicated staff. 
The Petitioner submitted examples of quarterly departmental reports that subordinates submitted to 
him for review, and personnel documents such as performance reviews. The.information in the one­
page quarterly reports is minimal. For example, the financial and administrative manager's report 
for the first quarter of 2017 contained five substantive sentences, three of which reported monthly 
business volume (in Chinese yuan rather than U.S. dollars even though the store is in California). 
The other two sentences read: "The Corporation's business volume is stable" and "The Store 
Manager shall try to increase the business volume in next quarter by 5% at least as the business 
volume still has the possibility to rise, although it is relatively good." The principal focus of the 
grocery department's report for the second quarter of 2017 was poor sales of soda water. The 
Petitioner did not establish that the compilation and review· of these quarterly reports made 
significant demands on the time of the Beneficiary or his subordinates. 
In the denial notice, the Director repeated the passage from the RFE indicating that the Beneficiary 
appears to be essentially a supervisor rather than a manager or executive. The Petitioner does not 
address this concern on appeal; the only allegation of adjudicative error concerns subordinates' 
salary figures, as discussed above. We agree with the Director's unrebutted findings about the 
apparent nature of the Beneficiary's duties and responsibilities. 
Based on the deficiencies described above, the Petitioner has not established that it will employ the 
Beneficiary in a primarily managerial or executive capacity. 
IV. CONCLUSION 
The Petitioner did not establish that it will employ the Beneficiary in a primarily managerial or 
executive capacity. 
ORDER: The appeal is dismissed. 
Cite as Matter of A-F-C- Corp., ID# 1554504 (AAO Aug. 9, 2018) 
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