dismissed L-1A Case: Home Furnishings

U.S. Citizenship 
and Immigration 
Services 
MATTER OF S-C-B-M- LLC 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: DEC. 14. 2017 
APPEAL OF CALIFORNIA SERVICE CENTER DECISION 
PETITION: FORM I-129. PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, an importer and wholesale distributor of home furnishings, seeks to temporarily 
employ the Beneficiary as the manager of its new ofTice 1 under the L-1 A nonimmigrant 
classification for intracompany transferees. See Immigration and Nationality Act (the Act) section 
101(a)(l5)(L). 8 U.S.C. ~ 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 capacity. 
The Director of the California Service Center denied the petition. concluding that the Petitioner did 
not establish, as required, that the Beneficiary has been employed abroad in a managerial or executive 
capacity. 
On appeal, the Petitioner submits additional evidence and asserts that it established that the 
Petitioner's parent company has employed the Beneficiary in an executive capacity since 2011. 
Upon de novo review. we will dismiss the appeal. 
I. LEGAL FRAMEWORK 
To establish eligibility for the L-lA nonimmigrant visa classification for a new office. 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. § 214.2(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 employer or a 
subsidiary or at1iliate thereof in a managerial or executive capacity. Section 101 (a)(l5 )(L) of the 
Act. The petitioner must also establish that the beneficiary's prior education. training, and 
employment qualifies him or her to perform the intended services in the United States. 8 C.F.R. 
§ 214.2(1)(3). 
1 
The tenn '"new ofTice" refers to an organization which has been doing business in the United States for Jess than one 
year. 8 C.F.R. ~ 214.2(1)( I )(ii)(F). The regulation at 8 C.F.R. ~ 214.2(1)(3)(v)(C) allows a "new office" operation no 
more than one year within the date of approval of the petition to support an executive or managerial position. 
Matter ofS'-( '-E-M- LLC 
The petitioner must submit evidence to demonstrate that the new office will be able to support a 
managerial or executive position within one year. This evidence must establish that the petitioner 
secured sufficient physical premises to house its operation and disclose the proposed nature and 
scope of the entity, its organizational structure. its financial goals, and the size of the U.S. 
investment. See generally. 8 C.F.R. ~ 214.2(1)(3 )(v). 
The term ··executive capacity .. is defined 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 1 0 1 (a)( 44 )(B) of the Act. 
II. EMPLOYMENT ABROAD IN AN EXECUTIVE CAPACITY 
The Director determined that the Petitioner did not establish that the Petitioner's parent company has 
employed the Beneficiary in a managerial or executive capacity. 2 The Director found that the 
submitted position description was too vague to establish what the Beneficiary actual does on a day­
to-day basis. 
On appeaL the Petitioner objects to the Director's finding that the Beneficiary's duties are too 
general and asserts that the Beneficiary performs the same duties attributed to '"Chief Executives .. in 
the U.S. Department of Labor's O*Net Online occupational classification resource. The Petitioner 
further maintains that the Beneficiary has been responsible for executive oversight of its Chinese 
parent company as well as an affiliate Chinese entity. and performs primarily executive duties for 
both entities. 
When examining the executive capacity of a given beneficiary. we will review 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). Beyond the required description ofthejob 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 foreign entity's business and its staffing levels. 
2 
Although the Director referenced the definitions of both managerial and executive capacity, the Petitioner claims that 
the Beneficiary has been employed abroad in an executive capacity. 
2 
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Matter o(S'-C-B-M- LLC 
A. Duties 
Based on the definitions of executive capacity. the Petitioner must first show that the Beneficiary has 
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 has been 
primarily engaged in executive duties, as opposed to ordinary operational activities alongside the 
company's other employees. See Family Inc. v. USC'IS. 469 F.3d 1313. 1316 (9th Cir. 2006): 
Champion World. 940 F.2d at 1533. 
The Petitioner claims that its parent company, has 
employed the Beneficiary as its president since 2011 :' In a supporting letter, the foreign entity stated 
that the Beneficiary's duties include designing and implementing marketing plans. setting sales goals 
and reviewing results. reviewing and coordinating with affiliated manufacturing facilities regarding 
product quality and delivery, supervising vice presidents and department managers, reviewing 
reports, and evaluating staff performance. 
In response to the Director's request for a more detailed description of the Beneficiary's duties. the 
Petitioner provided the following: 
• Strategic planning for expanding the business by searching for suitable products. 
services, etc. to increase the revenue ( 65%) 
• Set annual budget and profit goals for the company (1 0%) 
• Meeting with department heads to review the performance results and take the 
corrective remedies to achieve the operational targets (20%) 
• Meeting with department heads to review the personnel issues and make final 
decisions regarding 
hiring, tiring, promotion and emotion (5%) 
As noted, the Director found that this description did not provide sufficient insight into the nature of 
the Beneficiary's actual day-to-day duties to establish that he performs primarily executive tasks. 
We agree with that finding. The Petitioner indicates that the Beneficiary spends most of his time 
performing '·strategic planning" but did not provide examples of his specific duties in support of its 
claim that this responsibility would reasonably occupy so much of his time. The Petitioner claims 
that the foreign entity markets and sells products manufactured by its aniliate so it is unclear what 
specific duties would be involved in searching for '·suitable products. services. etc.'· 
Rather than providing a more specific description on appeal, the Petitioner compares the previously 
submitted duties to the generic duties listed under the "Chief Executives" occupation on O*Net 
' In a request for evidence (RFE). the Director advised the Petitioner that the Beneficiary identified a difterent foreign 
employer. ' · on his U.S. visa applications submitted to the Department of State between 
2012 and 2015. The Petitioner explained that the Beneficiary owns and directs the management of this foreign company 
but is primarily employed by Although the Petitioner has submitted evidence that 
the two foreign entities are affiliates, we will limit our analysis to the Beneficiary's role with 
The Petitioner did not explain why it did not mention in its initial tiling and the 
record does not contain a detailed description of the Beneficiary's role with this company. 
3 
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Matter olS-C-8-M- L!.C 
Online. The regulation s require the Petitioner to provide a detailed description of the Beneficiary' s 
actual duties within the context of the foreign entity's day-to-day operations. His duties should be 
reasonable in light of the nature, scope, and purpose of that organi zation. Accordingly. comparing 
his job description to a general listing of job duties within a broad occupational classification does 
not assist us in under stand ing what the Beneficiar y actually does or whether his actual dutie s have 
been primarily executive in nature . Specifics are clearly an important indication of whether a 
beneficiar y's duti es are primarily executive or managerial in nature. otherwise meeting the 
definitions would simply be a matter of reiter ating the regulations . Fedin Bras. Co .. Ltd 1'. Sava, 
724 F. Supp. 1103, 1108 (E.D.N .Y. 1989). aff'd, 905 F.2d 41 (2d. Cir. 1990). 
The fact that the Beneficiary manages or directs a business does not necessa rily establish eligibility 
for classification as an intracompany transferee in an executive capacity within the meaning of 
section 101 (a)( 44) of the Act. By statute, eligibility for this classificati on requires that the duties of 
a position be ··primaril y'' executive in natur e. Sections I 01 (A)( 44 )(B) of the Act. While the 
Beneficiary may exerc ise discretion over the foreign entity's day-to-da y operations and with respect 
to discretionar y decision-making, the position descriptions alone are insufficient to establish that his 
actual duties have been primarily executive in nature . 
B. Staffing 
At the time of filing , the Petitioner submitt ed an organizational chart for the foreign entity which 
listed the Beneficiary as president with a total of five subordinate staff. The chart shows a financi al 
vice president and a vice president as his direct subordinates. In addition, it depicts a product 
manager a sales manag er and a branch manager all 
reporting to the vice president. 
ln response to the Director's request for additional information regarding the foreign entity's 
structure, the Petitioner submitted a revised organizational chart with a total of I I employees. The 
newly added positions include an accountant who reports to the vice president, two employ ees 
reporting to the product manager, and two emp loyees reporting to the sales manager. The three 
managers identified on the initial organizational chart were not named on the revised chart. Inste ad, 
the Petitioner identifi ed as product manager. as sales manager , and 
as purchasin g man ager. The revised chart did not include the '·branch manager .. position . 
The Petitioner also provided the foreign entity's monthly ·'pa y sheets .. dating from Januar y 20 13 
until May 2017. These documents were submitted in English with a .. translation seal .. but were not 
accompanied by the original Chinese langu age documents. Therefor e. the probative value of these 
documents is limit ed. 
The Petitioner did not explai n the significant differences between the organizational chart submitted 
at the time of tilin g, and the one submitted in response to the RFE approximately three months later. 
The three mana gers identified on the initial chart do not appear in any of the monthl y pay sheets and 
there is no corroborating evidence of their employment. In fact, the pay shee ts appear to show that 
the staffing depicted in the second chart was act uall y in place well before the time the petition was 
4 
Matter olS-C-B-lvf- LLC 
filed in January 2017. The Petitioner has not resolved these inconsistencies in the record with 
independent, objective evidence pointing to where the truth lies. Marter of Ho. 19 I&N Dec. 582. 
591-92 (BIA 1988). In light of these discrepancies in the organizational charts and the limited 
probative value of the incomplete translations provided, the Petitioner has not submitted sufficient 
evidence of the foreign entity's organizational structure. 
The Petitioner was also asked to provide information regarding the foreign employees' job duties 
and the educational requirements for their positions. The Petitioner submitted a statement from the 
Beneficiary. who mentioned that the foreign entity has ""4 employees with bachelor degree." The 
Petitioner did not provide position descriptions for the Beneficiary's claimed subordinates, or the 
educational requirements for specific positions. 
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 101 (a)( 44 )(B) of the 
Act. Under the statute. a beneficiary must have the ability to "direct the management" and ""establish 
the goals and policies" of that organization. Inherent to the definition. the organization must have a 
subordinate level of managerial employees for a beneficiary to direct and they must primarily focus 
on the broad goals and policies of the organization rather than the day-to-day operations of the 
enterprise. An individual will not be deemed an executive under the statute simply because they 
have an executive title or because they "direct"" the enterprise as the owner or sole managerial 
employee. A beneficiary must also exercise .. wide latitude in discretionary decision making'' and 
receive only .. general supervision or direction from higher level executives. the board of directors. or 
stockholders of the organization." !d. 
Because of the deficiencies and inconsistencies in the record with respect to the foreign entity's 
stat1ing structure. the Petitioner has not established that the Beneficiary primarily directs the 
management of the foreign entity, or that the staff in place at the foreign entity has been able to 
relieve him from significant involvement in that entity's day-to-day operations. Without job 
descriptions for the Beneficiary's subordinates. we cannot determine what non-executive functions 
were assigned to those staff. 
Further, the Petitioner must establish that the Beneficiary has been employed in a qualifying capacity 
abroad for at least one year in the three years preceding the tiling of the petition in January 2017. 
8 C.F.R. § 214.2(1)(3)(v)(B). The Beneficiary was physically present in the United States for most 
of 2016 and therefore. we will look at his employment abroad between January 2014 and January 
2016. 4 During much of this period (January 2014 through March 2015). the foreign entity's pay 
sheets indicate that it employed only the Beneficiary. the .. financial vice president" and an 
4 
Brief trips to the United States for business or pleasure are not interruptive of the one year of continuous employment 
abroad. but such periods are not counted toward fulfillment ofthat requirement. See S.C.F.R. ~ 214.2(l)(l)(ii)(A). The 
Beneficiary was in the United States as a visitor from January 14. 2016. until July II, 2016, and from July 25. 2016. 
until October 28. 2016. He returned on December 6. 2016. and was in the United States when this petition was filed in 
January 2017. 
Matter ofS-C-B-M- LLC 
accounting employee. The pay sheets list only four to five employees in May and June 2015. 
indicate that the claimed department managers were hired in July 2015, and show the other vice 
president was hired in 2016. The company was minimally stalled in 2014 and not fully staffed for at 
least half of 2015. Therefore. even if we accept the incomplete translations of the pay sheets as 
probative evidence of the foreign entity"s actual staffing levels, this evidence shows that for much of 
the relevant two-year period, the Beneficiary was without subordinate staff to perform many of the 
day-to-day functions of the departments he was claimed to oversee. 
We must take into account the reasonable needs of the organization and that a company"s size alone 
may not be the only factor in denying a visa petition for classification as an L-1 A manager or 
executive. See section 101(a)(44)(C) of the Act. However, it is appropriate for USCIS to consider 
the size of the foreign entity in conjunction with other relevant factors. such as the absence of 
employees who perform the non-managerial or non-executive operations of the company. Family 
Inc. t'. USCIS. 469 F.3d 1313 (9th Cir. 2006); Systronics Corp. v. INS. 153 F. Supp. 2d 7. 15 (D.D.C. 
2001 ). The size of a company may be especially relevant when USC IS notes discrepancies in the 
record. See Systronics. 153 F. Supp. 2d at 15. 
The Petitioner has not shown that the reasonable needs of the foreign entity were plausibly met by 
the services of the Beneficiary as president a financial vice president and an accountant. 
Regardless. the reasonable needs of the Petitioner serve only as a factor in evaluating the 
Beneficiary's proposed position. The Petitioner must still establish that the Beneficiary was 
primarily employed in an executive capacity. See sections 101(a)(44)(B) ofthc Act. 
The Petitioner has consistently stated that the Beneficiary occupied the senior position in the foreign 
entity. but has not submitted a job description or supporting evidence sutlicient to demonstrate that 
he primarily performed executive duties. 
III. CONCLUSION 
The Petitioner has not established that the Beneficiary has been employed abroad in an executive 
capacity. 
ORDER: The appeal is dismissed. 
Cite as Matler o{S-C-B-M- LLC, ID# 739011 (AAO Dec. 14, 2017)