dismissed L-1A Case: Industrial Equipment

U.S. Citizenship 
and Immigration 
Services 
MATTER OF W-1-E- LC 
APPEAL OF VERMONT SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: DEC. 28, 2017 
PETITION: FORM 1-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a wholesale distributor of industrial equipment, seeks to extend the Beneficiary's 
temporary employment1 as its president under the L-1 A nonimmigrant classification for 
intracompany transferees. See Immigration and Nationality Act (the Act) section 10l(a)(l5)(L), 
8 U.S.C. § 1101(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 Vermont 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 an 
executive capacity. 
The matter is now before us on appeal. In its appeal, the Petitioner asserts that it has met its burden 
of proof, and the Director erred by finding otherwise. 
Upon de novo review, we will dismiss the appeal. 
I. LEGAL FRAMEWORK 
To establish eligibility for the L-lA 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 10l(a)(15)(L) of the 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 or executive capacity. !d. 
1 
The Petitioner previously filed a "new office" petition on the Beneficiary's behalf, approved for the period May 19, 
2015, to May 18, 2016. 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(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. 
Matter ofW-1-E- LC 
There are additional requirements when a petitioner seeks to extend an L-1 A visa petition that 
involved the opening of a new office. The new petition must include evidence to show: a qualifying 
relationship still exists between the employers in the United States and abroad; the U.S. entity has 
been doing business for the previous year; and the financial status of the U.S. operation. The 
Petitioner must also submit statements describing the Beneficiary's past and intended future duties in 
the United States, and details ofthe staffing ofthe new operation. See 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 it will employ the Beneficiary in an 
executive capacity. The Petitioner does not claim that it seeks to employ the Beneficiary in a 
managerial capacity. The Petitioner asserts that it has provided enough information to establish the 
Beneficiary's eligibility, but we disagree, for the reasons set forth below. 
An executive capacity is 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. 
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) of the Act. 
A. Duties 
When examining the executive capacity of the Beneficiary, we will review the Petitioner's 
description of the Beneficiary's 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). 
The definition of executive capacity has two parts. First, the Petitioner must 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. 
On the petition form, the Petitioner listed the following U.S. duties: 
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Matter ofW-1-E- LC 
Administrative duties: Supervision of all departments. Training of personnel. 
Supervision of all purchases and sales. Inventory quality control. Supervision of 
price shopping. 
Finance Duties: Supervision of income and expenses balance, and verifications. 
Human Resource Duties: Supervision of hiring and termination of employees, and 
other human resource issues. 
In an introductory letter, the Petitioner stated: 
[The Beneficiary's] job duties for the past year ha[ ve] been similar to those she 
performed for [the Petitioner's affiliate] in China, with an emphasis on infrastructure­
building, departmental work-flow organization, supervision of management staff, 
client-base expansion, financial oversight, personnel hiring and training, sales and 
purchasing goal-setting and achievement, and reaching profit goals. 
The Director requested a more detailed statement of the Beneficiary's duties, stating that the initial 
job description lacked specific details and corroborating evidence. In response, the Petitioner 
submitted the following job description, adapted from the Beneficiary's foreign job description, 
submitted previously: 
1. Plan and direct executive operational activities and internal departmental 
organization, policies, and functions (15% oftime); 
2. Exercise wide latitude in independently determining the company's overall 
strategic direction and business strategy, including long-range planning and 
identifying both domestic and international business opportunities (15% of time); 
3. Supervise the management team in the performance of their duties and delegate 
responsibilities to them (15% oftime); 
4. Direct the company's financial and budget activities (5% of time); 
5. Explore new business opportunities and areas of expansions, including making 
determinations on whether to expand or modify company's services or product 
lines (15% of time); 
6. Evaluate the performance of company's senior level managerial employees by 
meeting in person once per month and annually for a full performance review. 
Make hiring and termination decisions on the senior level managerial employees 
(5% of time); 
7. Direct and coordinate company's activities concerning production, sales, and 
distribution of products. Set general annual goals in sales and distributions of 
products (5% oftime); 
8. Set company expansion goals, create plans for achieving the goals, and efficiently 
executing strategies to reach those goals (1 0% of time); 
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Matter ofW-1-E- LC 
9. Implement and, as necessary, modify the company Business Plan's financial 
projections, budgeting, advertising, and marketing (2% oftime); 
10. Review financial statements and reports, and make decisions accordingly ( 5% of 
time); 
11. Communicate with company's Executive Director of the Board of Directors and 
receive general supervision from the Board of Directors in terms of company's 
strategy, goals, and action plans (5% oftime); 
12. Perform any other executive job function as necessary, and delegate 
responsibilities to managers to ensure smooth business operations (3% of time). 
The job description did not mention "Inventory quality control" as the Petitioner first stated on the 
petition form. The record does not show that the Petitioner has warehouse space or otherwise 
directly handles merchandise in a manner that would permit its employees to inspect items for 
quality. Instead, the Petitioner appears to operate as a sales office. 
In the denial notice, the Director stated: 
The beneficiary's level of discretionary authority is not in dispute, but the submitted 
job description does not provide enough detail to show that the beneficiary's duties 
are primarily managerial or executive in nature. For example, the evidence does not 
establish what tasks such as "plan and direct executive operational activities," 
"exercise wide latitude in independently determining the company's overall strategic 
direction" and "explore new business opportunities and areas of expansions" exactly 
entail. 
On appeal, the Petitioner repeats the job description and states: "There is nothing vague about the 
above stated executive responsibilities," which "will necessarily be broad and varied." 
The record does not support the Petitioner's assertion that the Beneficiary's job description contains 
adequate details. We agree with the Director that a number of elements of the job description are 
essentially rephrasings of the definition of "executive capacity," such as "[ e ]xercise wide latitude in 
independently determining the company's overall strategic direction and business strategy." It 
cannot suffice for the Petitioner to reiterate the regulations; specific details are necessary. See Fedin 
Bros. Co., Ltd. v. Sava, 724 F. Supp. 1103, 1108 (E.D.N.Y. 1989), aff'd, 905 F.2d 41 (2d. Cir. 1990). 
Several items on the list appear to be redundant. Items 4, 9, and 10 all relate to the company's 
finances, and the Petitioner has not explained the difference between directing the company's 
financial activities, implementing its financial projections, and making decisions based on financial 
data. Items 5 and 8 both concern expansion, and together are said to occupy a quarter of the 
Beneficiary's time. The Petitioner has not submitted any evidence to show that the company has 
expanded or made concrete plans to do so during the time that the Beneficiary has already served as 
the Petitioner's president. 
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Matter ofW-1-E- LC 
We agree with the Director that, while the Petitioner has established the Beneficiary's control over 
the company, it has not documented specific executive tasks that the Beneficiary has performed in 
her time as the company's president. 
B. Staffing 
Beyond the required description of the job duties, USCIS reviews the totality of the record when 
examining the claimed executive capacity of a beneficiary, including 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. 
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 a beneficiary 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 an 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." ld. 
The Petitioner's organizational chart showed the following planned structure: 
President 
I 
Operations Manager 
Business Development Manager Accounting Manager Customer Service Manager 
I I I 
Three Sales Executives Accounts Receivable Clerk Customer Service 
I Representative 
Accounts Payable Clerk 
The Petitioner stated: "Overall, there are 11 positions within [the petitioning company] .... Four 
positions are already filled and seven positions remain to be filled at this time." The four filled 
positions consisted of one sales worker under three levels of management - the business 
development manager, operations manager, and president (the Beneficiary). 
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Matter ofW-1-E- LC 
Invoices from early 2016, a few months before the May 2016 filing date, appear to indicate that the 
Beneficiary personally placed a number of orders. Direct involvement in the ordering process is not 
an executive-level responsibility. If the Beneficiary was placing orders, then it is not evident that the 
company had sufficient subordinate staff to relieve her of that responsibility. 
The Director requested additional information and evidence about the Petitioner's employees, stating 
that the company did not appear to have "sufficient staffing to relieve the beneficiary from primarily 
performing non-qualifying job duties." In response, the Petitioner stated that five positions were 
currently staffed: President, General Manager, Sales Executive, Accounting Clerk, and Customer 
Service Representative. Except for the Beneficiary, all the employees named on the first 
organizational chart had left the company. 
Payroll documents identified nine people who worked for the company during 2016. Most of them 
left the company after less than two months. Seven of the nine employees earned less than $10,000, 
and six earned less than $4000. The payroll records do not include the name of the individual whom 
the Petitioner had previously identified as its operations manager. Therefore, the payroll documents 
do not corroborate the Petitioner's claim to have employed an operations manager at the time of 
filing. 
The Director found that the Petitioner had not submitted enough evidence to establish that the 
Beneficiary's subordinates would relieve her from having to perform routine business functions. 
On appeal, the Petitioner asserts that "the company is structured to have a total of 11 employees," 
including "a four layer corporate structure." The company, however, had no more than four 
employees at the time of filing, and one of those claimed employees is not named in payroll 
documents. 
The Petitioner cannot establish eligibility by asserting its intention to fill intermediate managerial 
and supervisory positions at an unspecified later date. A petitioner must establish eligibility at the 
time of filing the petition. See 8 C.F .R. § 103 .2(b )(1 ). A petitioner must establish that the position 
offered to a beneficiary, when the petition was filed, merits classification as a managerial or 
executive position. See Matter of Michelin Tire Corp., 17 I&N Dec. 248, 249 (Reg'] Comm'r 1978). 
The regulations provide strict evidentiary requirements for the extension of a "new office" petition 
and require USCIS to examine the organizational structure and staffing levels of the petitioner. See 
8 C.F.R. § 214.2(1)(14)(ii)(D). The regulation at 8 C.F.R. § 214.2(1)(3)(v)(C) allows the "new 
office" operation one year within the date of approval of the petition to support an executive or 
managerial position. There is no provision in USC IS regulations that allows for an extension of this 
one-year period. If a given business does not have sufficient staffing after one year to relieve the 
beneficiary from primarily performing operational and administrative tasks, the petitioner is 
ineligible by regulation for an extension. In the instant matter, the Petitioner has not reached the 
point that it can employ the Beneficiary in a primarily executive capacity. 
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Matter ofW-1-E- LC 
The Petitioner's accounting and customer service departments were unstaffed at the time of filing, 
and therefore there were no subordinates to relieve the Beneficiary from performing duties related to 
accounting and customer service. The Beneficiary's job description also referred to advertising and 
marketing, but the Petitioner did not explain who performed those functions for the company. 
The Petitioner has not shown that it had sufficient staff at the time of filing to relieve the Beneficiary 
from having to primarily perform non-qualifying tasks. 
III. CONCLUSION 
The Petitioner has not established that the former new office has developed to a point where it can 
support a primarily executive position for the Beneficiary. 
ORDER: The appeal is dismissed. 
Cite as Matter of W-1-E- LC, ID# 767391 (AAO Dec. 28, 2017)