dismissed L-1A Case: International Trade

U.S. Citizenship 
and Immigration 
Services 
MATTER OF B.T.G-1-T LLC 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: OCT. 3, 2019 
APPEAL OF CALIFORNIA SERVICE CENTER DECISION 
PETITION: FORM 1-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, claiming to operate as an international trade organization, seeks to continue the 
Beneficiary's temporary employment as its president under the L-lA nonimmigrant classification for 
intracompany transferees. See Immigration and Nationality Act ( the Act) section 101 (a)( 15)(L ), 8 U.S. C. 
§ 11 0l(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 
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 would be employed in the United States in a managerial or 
executive capacity and that the Beneficiary's employment would be temporary. 
On appeal, the Petitioner asserts that the Beneficiary would be employed in an executive capacity and 
that such employment with the U.S. entity would not be permanent. 
Upon de nova review, we will dismiss the appeal because the Petitioner has not established that the 
Beneficiary will be employed in the United States in an executive capacity. Because of the dispositive 
effect of this finding, we will reserve the remaining issue. 
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 101(a)(l5)(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 . Id. 
II. U.S. EMPLOYMENT IN AN EXECUTIVE CAPACITY 
The Petitioner claims that the Beneficiary's proposed U.S. employment will be in an executive 
capacity. As the Petitioner does not claim that the Beneficiary would be employed in a managerial 
Matter of B.TG-1-T LLC 
capacity, we will only address the Petitioner's claim and will not discuss whether the Beneficiary's 
U.S. employment will be in a managerial 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 101 (a)( 44 )(B) of the 
Act. 
Based on the statutory 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. 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 F.3d 1313, 1316 (9th Cir. 2006); 
Champion World, 940 F.2d 1533. 
The 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, we examine the company's organizational structure, the 
duties of the Beneficiary's subordinate employees, the presence of other employees to relieve the 
Beneficiary from performing operational duties, the nature of the business, and any other factors that 
will contribute to understanding the 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 and its staffing levels. 
A. Staffing 
If staffing levels are used as a factor in determining whether an individual is acting in a managerial 
capacity, we 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. 
In the petition form the Petitioner claimed four employees and indicated that it had a gross annual 
income of approximately $2800. The Petitioner provided a supporting statement, which included an 
organizational chart depicting its staffing structure. The chart shows the Beneficiary at the top of the 
organizational hierarchy, a sales director as the Beneficiary's direct subordinate, and two sales people 
at the bottom tier of the hierarchy, both subordinate to the sales director. Although the organizational 
chart included names, position titles, and educational levels for the four claimed employees, the 
Petitioner did not describe their job duties to show how they would support the Beneficiary's claimed 
executive position. The Petitioner also provided employee pay stubs showing that in October 201 7, 
which immediately preceded the filing of this petition, the Beneficiary's subordinate sales manager 
earned $1500 and each sales person earned $150. 
The Director determined that the Petitioner did not adequately demonstrate eligibility for the benefit 
sought and issued a request for evidence (RFE) instructing the Petitioner to provide evidence showing 
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Matter of B.TG-1-T LLC 
that its organizational structure and staff comprising that structure are sufficient to elevate the 
Beneficiary to an executive position. The Director pointed to the lack of information about the 
subordinate employees' respective job duties and qualifications and asked the Petitioner to provide its 
quarterly wage reports, payroll summary, and IRS Form W-2s for 2017 showing the number of weeks 
worked by the Beneficiary's subordinates. 
In response, the Petitioner provided a chart listing each employee's name, position title, level of 
education, and monthly wages. The chart indicates that neither sales person earned wages 
commensurate with full-time employment. The Petitioner stated that the sales staff's position titles 
are indicative of their respective job responsibilities and provided its 2017 quarterly tax returns and 
wage reports showing that it paid full-time wages to the sales manager and part-time wages to two 
sales people who earned $300 and $405, respectively, during the fourth quarter. 
In denying the petition the Director summarized the information pertaining to the Petitioner's support 
staff and found that the Petitioner did not have sufficient staff at the time of filing to relieve the 
Beneficiary from having to primarily perform non-qualifying job duties under an approved petition. 
On appeal, the Petitioner states that its "staffing arrangement has its basis of reasonableness" claiming 
that the "hardship" it experienced in in the course of operating its business precluded it from Jursuin] 
two prior business ideas, the first of which was to involve the international trade of parts in th 
industry and the second was to involve the export o~ Ito China. The Petitioner claims that 
it "never lost its confidence and effort" and "has been trying to find business opportunities" in the D 
I lindustry while operating an "online shop" through an online retailer and "making efforts" to 
import I lfrom China into the United States. The Petitioner acknowledges that it "has not 
yet earned much income in the past years" but maintains that the Beneficiary carries out "high level 
responsibilities" within the context of its current staffing composition. 
As a threshold matter, we note that the Petitioner must establish that all eligibility requirements for 
the immigration benefit have been satisfied from the time of the filing and continuing through 
adjudication. 8 C .F .R. § 103 .2(b )( 1 ). In this matter, the Petitioner's support staff at the time of filing 
was comprised of one full-time sales manager and two part-time sales people, whose quarterly wages 
of $300 and $405, respectively, indicate that they did not significantly contribute to the Petitioner's 
sales efforts. The Petitioner did not provide evidence showing that this limited staffing composition 
is sufficient to meet its business needs, which likely include administrative and logistics functions that 
do not appear to have been assigned to the existing personnel. The brief employee job descriptions 
that the Petitioner provided in response to the RFE do not indicate that either the sales director or the 
two subordinate sales people perform job duties outside those directly related to the sales function. 
The Petitioner must support its assertions with relevant, probative, and credible evidence. See Matter 
of Chawathe, 25 I&N Dec. 369, 376 (AAO 2010). In light of the Petitioner's deficient staffing 
composition, it is likely that the Beneficiary would have to compensate for those staffing deficiencies 
in order to meet the company's immediate operational needs. Although the Petitioner described 
certain "hardships" it faced in the course of its business pursuits, such obstacles would not relieve the 
Petitioner from having to meet basic eligibility requirements, including establishing that it would 
primarily employ the Beneficiary in an executive capacity. 
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Matter of B.TG-1-T LLC 
The evidence the Petitioner submitted does not establish the likelihood that the Petitioner's staff at the 
time of filing was more likely than not sufficient to support the Beneficiary in an executive position. 
B. Duties 
Next, we will address the Petitioner's description of the Beneficiary's job duties in his proposed 
position. See 8 C.F.R. § 214.2(1)(3)(ii). 
In its supporting cover letter, the Petitioner provided a broadly stated job description claiming that the 
Beneficiary's proposed job duties would include directing "the establishment and development of 
management structure of the company," establishing a "development strategy," planning "detailed 
annual business schemes," determining "the internal management mechanism" and conducting 
"general administration," preparing and monitoring the budget and overseeing financial management, 
coordinating "activities of departments," and making "general decisions" regarding personnel matters. 
Although the Petitioner supplemented the record with a job duty breakdown in its response to the RFE, 
the information it provided was equally deficient with respect to details about the Beneficiary's actual 
daily tasks. For instance, the Petitioner broadly stated that the Beneficiary would spend 50% of her 
time continuing to evaluate and instruct the sales director and "oversee the entire company's business 
activities and performances." However, it did not specify any actual daily activities associated with 
these vague responsibilities, which could arguably apply to any business involving a sales component. 
The remainder of the job duty breakdown was similarly lacking in meaningful substantive content and 
included broadly stated phrases indicating that the Beneficiary would "direct the sales director" in 
executing the following actions: hiring sales people, "organiz[ing] analysis" on market and consumer 
segmentation, and formulating plans "for cooperation with local companies" and with the foreign 
affiliate. Given the ambiguity of these claims, it is unclear precisely what actual tasks the Beneficiary 
would carry out within the context of its various business pursuits. Specifics are clearly an important 
indication of whether a beneficiary's duties are primarily executive or managerial in nature, otherwise 
meeting the definitions would simply be a matter ofreiterating the regulations. Fedin Bros. Co., Ltd. 
v. Sava, 724 F. Supp. 1103, 1108 (E.D.N.Y. 1989), ajf'd, 905 F.2d 41 (2d. Cir. 1990). Accordingly, 
the regulations expressly instruct each petitioner to include a detailed account of a beneficiary's 
proposed job duties at the time of filing the petition. See 8 C.F.R. § 214.2(1)(3)(ii). 
Further, despite the Petitioner's repeated references to the Beneficiary as the "top executive" and 
claims that the Beneficiary is responsible for directing the management of the organization and make 
a broad range of discretionary decisions, these elements do not establish that the Beneficiary would 
primarily perform executive tasks within the context of the U.S. business operation, which is 
comprised of a limited sales start: including two part-time sales people whose salaries indicated that 
they work few hours and are not likely to relieve the Beneficiary from the primary portion of the 
organization's operational tasks. The fact that the Beneficiary will direct the Petitioner's business 
does not necessarily 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 
classification requires that the duties of a position be "primarily" executive in nature. Sections 
101(A)(44)(B) of the Act. While the Beneficiary may exercise discretion over the Petitioner's day-
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Matter of B.TG-1-T LLC 
to-day operations and possess the requisite level of authority with respect to discretionary decision­
making, these elements do not compensate for the deficient job description, which, in this case does 
not provide sufficient information that would lead to the determination that the Beneficiary's actual 
duties would be primarily executive in nature. 
On appeal, the Petitioner disputes the denial and contends that the Beneficiary would carry out "high 
level responsibilities," including formulating "development strategies," planning "management 
policies and rules," and directing and evaluating the performance of the sales manager. However, this 
job description is similar to those previously provided in its lack of a detailed account of the actual 
daily tasks the Beneficiary would perform within the framework of its underdeveloped organization. 
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 
10l(a)(44)(B) of the Act (requiring that one "primarily" perform the enumerated executive duties); 
Matter of Church Scientology Int'l, 19 r&N Dec. 593, 604 (Comm'r 1988). Here, in light of the 
broadly stated job description and apparent lack of an adequate support staff to relieve the Beneficiary 
from having to carry out primarily non-executive job duties, we find that the Petitioner has not 
established that the Beneficiary's time would be primarily allocated to directing the management and 
formulating the goals and policies of the organization. 
Lastly, the record indicates that users approved other petitions that had been previously filed on 
behalf of the Beneficiary. The decision does not indicate whether the Director reviewed the prior 
approvals of the other nonimmigrant petitions, one of which was a new office petition and was 
therefore subject to a different set ofregulatory requirements than an extension petition. See generally, 
8 C.F.R. § 214.2(1)(3)(v). If the previous nonimmigrant extension petition was approved based on the 
same evidence contained in the current record, the approval would constitute an error on the part of 
the Director. We are not required to approve applications or petitions where eligibility has not been 
demonstrated, merely because of prior approvals that may have been erroneous. Matter of Church 
Scientology Int'l, 19 r&N Dec. 593, 597 (Comm'r 1988). It would be unreasonable for USCrS or any 
agency to treat acknowledged errors as binding precedent. Sussex Eng 'g, Ltd. v. Montgomery, 825 
F.2d 1084, 1090 (6th Cir. 1987), cert. denied, 485 U.S. 1008 (1988). 
Further, users has clarified that "an adjudicator's fact-finding authority ... should not be constrained 
by any prior petition approval, but instead should be based on the merits of each case." users Policy 
Memorandum, PM-602-0151, Rescission of Guidance Regarding Deference to Prior Determinations 
of Eligibility in the Adjudication of Petitions for Extension of Nonimmigrant Status (Oct. 23, 2017), 
https://www.uscis.gov/sites/default/files/USCrS/Laws/Memoranda/20l7/2017-10-23Rescission-of­
Deference-PM6020151. pdf. The memorandum also emphasized that "the burden of proof remains 
on the petitioner, even where an extension of nonimmigrant status is sought." Id. 
As explained in the detailed discussion above, the Petitioner has not provided sufficient evidence to 
establish that it would employ the Beneficiary in an executive capacity. 
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Matter of B.TG-1-T LLC 
III. CONCLUSION 
The appeal will be dismissed for the above stated reasons. In visa petition proceedings, it is the 
petitioner's burden to establish eligibility for the immigration benefit sought. Section 291 of the Act, 
8 U.S.C. § 1361. The Petitioner has not met that burden. 
ORDER: The appeal is dismissed. 
Cite as Matter ofB.TG-1-T LLC, ID# 6292652 (AAO Oct. 3, 2019) 
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