dismissed L-1A Case: Import/Export

U.S. Citizenship 
and Immigration 
Services 
MATTER OF W-T-, INC. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: MAR. 26,2018 
APPEAL OF CALIFORNIA SERVICE CENTER DECISION 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, an importer and exporter of produce, seeks to employ the Beneficiary as its president 
and chief executive officer under the L-1 A nonimmigrant classification for intracompany 
transferees. See Immigration and Nationality Act (the Act) section IOI(a)(l5)(L), 8 U.S.C. 
§ II 0 I (a)(l5)(L). The L-1 A 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 was employed abroad and would be employed in the 
United States in a managerial or executive capacity. 
On appeal, the Petitioner states that the Beneficiary has been and would continue to be employed in 
an executive capacity, contending that the Director did not properly consider the supporting 
evidence. 1 
Upon de novo review, we flnd that the Petitioner has provided sufflcient evidence to show that the 
Beneficiary was more likely than not employed abroad in an executive capacity. However, we lind 
that the Petitioner has not provided sufficient evidence to overcome the Director's decision with 
regard to the Beneficiary's proposed employment in the United States. Therefore, we will dismiss 
the appeal. 
I. LEGAL FRAMEWORK 
To establish eligibility for the L-1 A nonimmigrant visa classification, a qualifying organization must 
have employed the beneficiary "in a capacity that is managerial, executive, or involves specialized 
knowledge," for one continuous year within three years preceding the beneficiary's application for 
admission into the United States. Section IOI(a)(l5)(L) of the Act. In addition, the beneficiary 
1 The Petitioner does not claim that the Beneficiary has been or will be employed in a managerial capacity. Therefore, 
we will limit our analysis to whether the Petitioner established that the Beneficiary was employed abroad and would be 
employed in the. United States in an executive capacity. 
Matter of W- T-. Inc. 
must seek to enter the United States temporarily to continue rendering his or her services to the same 
employer or a subsidiary or afliliate thereof in· a managerial or executive capacity. !d. The 
petitioner must also establish that the beneficiary's prior education, training, and employment 
. qualify him or her to perform the intended services in the United States. 8 C.F.R. § 214.2(1)(3). 
II. U.S. EMPLOYMENT IN AN EXECUTIVE CAPACITY 
The sole issue we will address in this matter is whether the Petitioner provided sutlicient evidence to 
establish that the Beneficiary will be employed in an executive capacity. 
"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 I 0 I (a)( 44 )(B) of the Act. 
When examining the executive capacity of a given beneficiary, we will look to the petitioner's 
description of the job duties. The petitioner's description ofthe 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 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. 
Based on the statutory definition of executive capacity, the Petitioner must first show that the Beneficiary 
will pertonn certain high-level responsibilities. Champion World, Inc. v. INS, 940 F.2d 1533 (9th Cir. 
1991) (unpublished table decision). The Petitioner must also 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 FJd 1313, 13I6 (9th Cir. 2006); Champion World, 940 F.2d 
1533. 
A. Duties 
In a supporting cover letter the Petitioner stated that it will work with its foreign affiliate to "facilitate[ e) 
negotiations and common investment ventures." Within the scope of a fruit import-export business, the 
Petitioner stated that the Beneficiary would "exclusively" perform executive duties indicating that the 
Beneficiary would allocate 50% of his time to directing and supervising the company's "global 
operations on existing investments and future investment ventures." The Petitioner also stated that the 
Beneficiary would devote I 0% of his time to each of the following: directing financial activities, 
evaluating the company's perform~mce to determine the need for improvement and policy changes, and 
directing contract negotiations and financial obligations. 
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Malter of W- T-, Inc. 
In a request for evidence (RFE), the Director instructed the Petitioner to provide a statement 
describing the Beneficiary's typical executive job duties and the percentage of time the Beneficiary 
would allocate to each duty. The Director stated that the job description should clarify how the 
Beneficiary's proposed job duties would meet the four-prong criteria of executive capacity. 
In response, the Petitioner provided another job duty breakdown that contained time allocations and 
listed job duties that were inconsistent with information that was provided in the original job 
description. For instance, the Petitioner stated that the Beneficiary would direct global operations in 
terms of current and future investments; the Petitioner added that the Beneficiary would carry out 
this responsibility by leading and supervising "all departments" and making recommendations to the 
board of directors and that he would allocate 30% of his time to these activities. This time allocation 
is inconsistent with the original job description, where the Petitioner stated that the Beneficiary 
would devote 50% of his time to this responsibility. Likewise, the original job description states that 
the Beneficiary will devote 5% of his time to reviewing finan'<ial statements, sales and activity 
reports, and other financial data; the new job description indicates that the Beneficiary would 
allocate I 0% of his time to this job responsibility, adding that the Beneficiary would "lead" the 
logistics department manager in the preparation of reports and making recommendations to the 
board of directors. The Petitioner also claimed that the Beneficiary would analyze produce types by 
"lead[ing] the Logistics Department Manager" to follow steps in the customs processes and ensuring 
that the proper department receives and processes produce orders and that he would analyze 
consumer data by ensuring that the office· manager prepares consumer reports and making 
recommendations to the board; we note that the original job description did not include either type of 
analysis as part of the Beneficiary's position. On the other hand, the original job description 
indicated that the Beneficiary would direct contract negotiations and "financial obligations"; 
however, this job duty was not included in the Beneficiary's more recent job description. 
Both job descriptions indicated that the Beneficiary would establish and implement departmental 
policies and objectives and direct slatting requirements for the logistics, office, and warehouse 
departments by interviewing and training department managers and staff. 
We further note that the Petitioner provided an organizational chart depicting the employees and 
departments that comprise its organization. The chart indicates that the Beneficiary would oversee 
an office manager, a director of operations, and a sales director. Despite providing a job description 
that makes specific references to logistics, office, and warehouse departments, the chart does not 
specify any department names or indicate which position titles would be consistent with the 
department names in the job description. The Petitioner must resolve these and the above described 
incongruities in the record with independent, objective evidence pointing to where the truth lies. 
Maller ofHo, !91&N Dec. 582,591-92 (BIA 1988). 
In the denial decision, the Director concluded that the Petitioner did not establish that the 
Beneficiary would be employed in an executive capacity. The Director found that the Beneficiary's 
job description primarily consists of non-executive job duties and noted that the Petitioner did not 
provide job descriptions for the Beneficiary's subordinates. 
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Mal/er of W- T-. Inc. 
Although we agree with the Director's conclusion, we find that the record lacks sufficient evidence 
about the specific job duties the Beneficiary would perform on a daily basis. As such, we cannot 
concur with the Director's affirmative finding that the Beneficiary would primarily carry out non­
executive functions as part of his daily routine, given that we cannot determine precisely what job 
duties the Beneficiary would perform. The actual duties themselves are critical to a determination as 
to the true nature of the employment. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. II 03, II 08 
(E.D.N.Y. 1989), a[['d, 905 F.2d 41 (2d. Cir. 1990). 
In the present matter, the Petitioner's latest job duty breakdown, aside from being partly inconsistent 
with the original job description, lacks the necessary degree of detail as to the Beneficiary's actual 
daily tasks. For instance, the job description states that the Beneficiary will spend 30% of his time 
leading and overseeing "all [ d]epartments" and providing recommendations to a board of directors 
regarding the Petitioner's "global operations" in terms of current and future investments. However, 
the phrase "global operations" is vague and does not specify the factors that the Beneficiary would 
consider or provide an understanding as to the types of "investment ventures" that would be part of 
the Petitioner's "global operations." The job description also lacks specific- information about the 
Beneficiary's actual daily tasks and thus it precludes us from understanding precisely how the 
Beneficiary would "lead and supervise all [ d]epartments" of the operation. The Petitioner was 
equally vague in neglecting to disclose specific daily tasks that would explain how the Beneficiary 
would direct the company's pricing, sales, and product distribution activities. Merely stating that the· 
Beneficiary would "lead the Logistics Department Manager to execute this duty" is not sufficient, as 
this claim does not specify the actions that are involved in the Beneficiary's leadership of this 
subordinate position. Likewise, the job description broadly states that the Beneficiary would have 
discretionary authority to establish and implement departmental goals and policies and analyze and 
evaluate the efticiency of corporate operations by directing the logistics and office departments. 
These job duties are vague and lack a definitive statement explaining how the Beneficiary would 
implement goals and polices or what underlying actions are indicative of his responsibility to 
"direct" the logistics and ot1ice departments. 
On appeal, the Petitioner contends that it met its evidentiary burden by a preponderance of the 
evidence and argues that the Director did not apply the correct standard of proof. We disagree and 
find that the Petitioner has not met the preponderance of the evidence standard because it has not 
provided a job description that conveys a meaningful understanding of the actual tasks the 
Beneficiary would carry out on a daily basis within the scope of a produce import· and exporting 
business. As indicated throughout this discussion, reciting the Beneficiary's vague job 
responsibilities or broadly-cast business objectives is not sufficient; the regulations require a detailed 
description of the Beneficiary's daily job duties. Here, rather than provide sufficient detail or 
explanation about the Beneficiary's activities in the course of their daily routine, the Petitioner has 
focused on the Beneficiary's leadership role; this element alone, however, does not necessarily 
establish eligibility for classification as an .intracompany transferee in an executive capacity within 
the meaning of section I Ol(a)(44) of the Act. By statute, eligibility for this classification requires 
that the duties of a position be "primarily" executive in nature. Sections 101(A)(44)(B) of the Act. 
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Matter ol W- T-. Inc. 
In the present matter, the Petitioner provided two job descriptions that are inconsistent with one 
another and use broad language to refer to the Beneficiary's discretionary authority over the 
Petitioner's staff and its day-to-day operations. The provided job descriptions do not allow us to 
understand precisely how the Beneficiary meets his broad job responsibilities; therefore, we cannot 
conclude that the Beneficiary primarily performs tasks of an executive nature. 
Although we agree with the Petitioner's contention that the job duty breakdown submitted in 
response to the RFE was not identical to the original job description, the two sets of job descriptions 
are partly inconsistent with one another in terms of content and percentage breakdown. As discussed 
above, we also lind that neither job duty breakdown adequately described the Beneficiary's actual 
daily tasks. Further, despite claiming that it previously provided a discussion of its "overall 
administrative tasks and operations," the record lacks this information and instead contains only 
brief references to various logistical elements that are part of the process for exporting and importing 
produce. Contrary to its claim, the Petitioner did not specifically describe the administrative and 
operational elements within the scope of its business operation, nor did it provide a detailed job 
description that establishes that the Beneficiary would more likely than not devote his time to 
executive job duties, rather than to the underlying operational tasks that are common to a produce 
importing and exporting business. 
The Petitioner further asserts that the approval of the Beneficiary's classification as an E 
nonimmigrant should be considered as probative evidence of the Beneficiary's eligibility for the 
nonimmigrant classi tication sought in the present matter. However, this other approval is irrelevant 
as an E nonimmigrant visa does not require that the qualifying employee primarily perform 
executive job duties. Therefore, successfully obtaining classification as an E nonimmigrant would 
not necessarily entitle the Beneficiary to the classification of an L-l nonimmigrant. As previously 
discussed, the Petitioner has not established that the Beneficiary would primarily perform duties of 
an executive nature. 
B. Staffing 
If stalling levels are used as a factor in determining whether an individual is acting in a managerial 
or executive capacity, USCIS takes into account the reasonable needs of the organization, in light of 
the overall purpose and stage of development of the organization. See section I 0 I (a)(44)(C) of the 
Act. 
At the time of filing the petition, the Petitioner indicated that it had four employees. Although a 
supporting statement was submitted, the Petitioner did not specify which positions were filled at the 
time of tiling. In its RFE response the Petitioner provided an organizational chart depicting three 
positions as the Beneliciary's direct subordinates- an oftice manager, a director of operations, and a 
sales director. The office manager is depicted as overseeing an office assistant and the sales director 
is depicted as overseeing two sales managers; the director of operations is not depicted within any 
subordinate employees. The chart also indicates that the office manager and the director of 
operations positions were both vacant, thereby indicating that the office assistant and sales director 
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Mauer of W- T-. Inc. 
are the Beneficiary's direct subordinates. The Petitioner did not explain who, if not the Beneficiary, 
would perform the duties assigned to the director of operations. 
The Petitioner also provided quarterly tax returns and IRS Form W-2s it issued to its employees in 
2016. With the exception of the 2016 tirst quarterly tax return during which the Petitioner paid 
wages to four employees, the quarterly tax returns for the three remaining quarters indicate that the 
Petitioner paid wages to five employees. Although this information is consistent with the 
Petitioner's issuance of five Form W-2s, the Petitioner claimed only four employees on its Form I-
129, thereby indicating that the five-person organizational chart that was provided in response to the 
RFE does not reflect the Petitioner's staffing composition at the time of tiling. The record also 
shows that, with the exception of the Beneficiary and the sales director, the three remaining 
employees in the organizational chart received salaries that were commensurate with those of part­
time workers. These factors lead us to question which positions were filled when the instant petition 
was filed, what duties the subordinate staff carried out, and how a four-person statT that was partly 
comprised of part-time employees would have been able to relieve the Beneficiary from having to 
primarily engage in non-executive operational tasks of a produce import-export operation at the time 
the instant petition was tiled. 
Further, as discussed earlier, the Beneficiary's latest job description indicates that he would "lead" 
various department heads in the execution of his job duties. Namely, the Petitioner indicated that the 
Beneficiary would "lead and supervise all Departments" and that he would "lead" a logistics 
department manager and an otlice manager in the course of directing operations, reviewing financial 
activities, and directing produce orders. However, the Petitioner's organizational chart does not 
indicate that a logistics manager position was part of its staffing composition at the time of filing. It 
is therefore unclear who would generate the Petitioner's performance reports, perform financial 
activities, and follow through with the logistics of the shipping and customs process, all of which 
hinge on a position that was not part of the organization at the time the petition was filed. In the 
absence of a logistics manager, it appears that the Beneficiary would have to directly participate in 
carrying out many of the Petitioner's operational tasks, which may be critical to its daily function, 
but·are not tasks of an executive nature. 
Likewise, the Petitioner's organizational chart, quarterly tax returns, and 2016 W-2s indicate that it 
did not employ an office manager or a director of operations at the time the petition was filed. While 
the Petitioner employed an oftlce assistant as a subordinate of the office manager position, it did not 
list the office assistant's job duties or establish that a part-time office assistant was capable of 
carrying out the duties of an office manager. It is therefore unclear who, if not the Beneficiary, 
would absorb the responsibility of performing the tasks of any of the multiple positions that were 
vacant at the time of filing. While no beneficiary is required to allocate I 00% of his or her time to 
executive-level tasks, the petitioner must establish that the non-executive tasks the beneficiary would 
perform are only incidental to the proposed position. As the Director correctly noted, an employee 
who "primarily" performs the tasks necessary to produce a product or to provide services is not 
considered to be "primarily" employed in a managerial or executive capacity. See. e.g., sections 
I 0 I (a)( 44)(A) and (B) of the Act (requiring that one "primarily" perform the enumerated managerial 
6 
Matter of W- T-. Inc. 
or executive duties); Maller of Church Scientology lnt '/, 19 l&N Dec. 593, 604 (Comm'r 1988). 
Here, the Petitioner has not established that it is adequately statied such that it can support the 
Beneficiary in an executive position. 
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 l0l(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. 
In the present matter, the record indicates that a single employee -a sales director- comprised the 
Petitioner's entire managerial tier that was directly subordinate to the Beneficiary. The remaining 
staff included two other employees with no evidence to establish precisely which two positions were 
filled at the time of filing or the duties that were carried out. Although the Petitioner claims that it 
incorporated each employee's job description into "a detailed description of the corporation," 
information about certain employee job duties was only briefly conveyed in the Beneficiary's job 
description; such information is not sufficient to convey a meaningful understanding as to which 
underlying operational tasks were common to the Petitioner's produce importing and exporting 
operation and who was performing those tasks. 
On appeal, the Petitioner claims that the Director focused on the size of the organization to the 
exclusion of other relevant evidence. 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 company 
that does not conduct business in a regular and continuous manner. Family Inc. v. USCJS, 469 F.3d 
1313 (9th Cir. 2006); Systmnics Corp. v. INS, 153 F. Supp. 2d 7, 15 (D.D.C. 2001). While a 
detailed job description is a critical to a determination of whether the Beneliciary would be 
employed in an executive capacity, we cannot omit from our discussion considerations of the 
Petitioner's staff and organizational complexity. Such factors contribute to a more comprehensive. 
understanding of the Petitioner's operations and its capacity to relieve the Beneficiary from having 
to primarily perform its operational tasks, and these factors also allow us to gauge the extent to 
which the Petitioner's organizational hierarchy was sufficient to elevate the Beneficiary to an 
executive-level position. 
As indicated above, the Petitioner's managerial tier at the time of filing was comprised of a single 
employee. Despite their managerial position titles, the Petitioner has not established that its sales 
;'v/aller of W- T-. Inc. 
managers are part of a management tier. We have considered the Beneficiary's top-most placement 
within the organization and his leadership role with respect to the business matters and employees of 
that organization; however, we find that the Petitioner has not demonstrated that at the time of tiling 
it had the organizational complexity to relieve the Beneficiary from having to devote his time 
primarily to the non-executive functions of the operation. 
III. CONCLUSION 
For the reasons discussed above, we tind that the Petitioner has not established that the Beneticiary 
will be employed in the United States in an executive capacity. The appeal will be dismissed for this 
reason. 
ORDER: The appeal is dismissed. 
Cite as Mcll/er ofW-T-. Inc., ID# 998413 (AAO Mar. 26, 2018) 
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