dismissed L-1A Case: Jewelry Retail

U.S. Citizenship 
and Immigration 
Services 
MATTER OF D- LLC 
APPEAL OF VERMONT SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: FEB. 27. 2018 
PETITION: FORM I-129. PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a diamond and jewelry retailer, seeks to temporarily employ the Beneficiary as 
·'manager of business services" for its new oftice 1 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. § 110l(a)(15)(L). The L-IA 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 Petitioner did 
not establish. as required. that: ( 1) the Beneficiary has been employed abroad in a managerial or 
executive capacity: (2) the Beneficiary would be employed in the United States in a managerial or 
executive capacity within one year of approval of the petition: and (3) it has a qualifying relationship 
with the Beneficiary's foreign employer. 
On appeaL the Petitioner submits additional evidence and requests reversal of the Director's 
decision. 
Upon de novo review. the Petitioner has now established that it has a qualifying relationship with the 
Beneficiary's employer abroad and we withdraw the Director's adverse finding with respect to that 
issue. 2 However. the Petitioner has not overcome the two remaining grounds Cor denial and we will 
dismiss the appeal. 
I. LEGAL FRAMEWORK 
To establish eligibility for the L-1 A nonimmigrant visa classification for a new otlice. a qualifying 
organization must have employed the beneficiary in a managerial or executive capacity f()f one 
continuous year within three years preceding the beneficiary's application f()r admission into the 
1 
The term ·'new office .. refers to an organization which has been doing business in the United States 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 no 
more than one year within the date of approval of the petition to support an executive or managerial position. 
' The evidence submitted on appeal. which includes a copy of the foreign employer's "Extract from the Unified States· 
Register of Legal Entities .. (USRLE) in Russia. demonstrates that the foreign entity is owned by the same company that 
owns the Petitioner. thus establishing an affiliate relationship as defined at 8 C.F.R.~ 214.2(1)( I )(ii)(L). 
Maller of D- LLC 
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 I 0 I (a)( 15 )(L) of the 
Act. 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). 
The petitioner must submit evidence to demonstrate that the new otlice will be able to support a 
managerial or executive position within one year. This evidence must establish that the petitioner 
secured sufticient 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 xenera!Zv. 8 C.F.R. § 214.2(1)(3 )(v). 
"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 
I 0 I (a)( 44 )(A) of the Act. 
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 IOI(a)(44)(B) ofthe Act. 
II. EMPLOYMENT ABROAD IN A MANAGERIAL OR EXECUTIVE CAPACITY 
In the denial decision. the Director acknowledged that the Petitioner submitted a description of the 
Beneficiary's duties abroad. but found that the totality of the evidence was insu11icient to establish 
that the foreign entity employed the Beneficiary in a managerial or executive capacity. The 
Petitioner did not provide an organizational chart or otherwise provide information to identify the 
Beneficiary's placement in the foreign entity's organizational hierarchy, information regarding the 
number of employees he supervised (if any) and their job titles. duties. and qualifications. 
Therefore. the Director determined that the Petitioner did not meet its hurd en of proof. 
On appeal. the Petitioner submits a list of the foreign entity's employees which provides their full 
names, joh titles. locations. dates of employment. and annual income in Russian rubles. This 
employee list indicates that the Petitioner's Russian affiliate has employed the Beneficiary as its 
"sales director .. since September 1. 2016. 
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A-latter (?lD- LLC 
However. there are several evidentiary deficiencies in the record which prohibit us thHn determinin g 
that the Beneficiary was emplo yed abroad in a managerial or executive capac ity for at l east one 
continuous year in the three years preceding the tiling of the petition. 
First, there is a discrepancy regarding the Beneficiary' s job title and the nature of his position with the 
toreign entity. In its letter in support of the petition. the Petitioner indicated that the Beneficiary has 
been performing "managerial/executive duties"' since August 2015. Specitically. the Petitioner stated 
that he has been ''developing and managing the necessary activities to complete the feasible [sic] studies 
regarding the opening in the United States of stores for retail trade of 
At the time of filing, the Petition er ~lso submitted a letter from the foreign entity ' s dire ctor. dated 
January 2017. confirming that the Beneflciar y '·has been working at lthe foreign entit
y] as a 
Manager Consultant for the period from ·oJ' Augus t 2015 til present." The initial evidence did not 
provide additional 
information or evidence related to the Beneficiary's position abroad. 
In response to the Director's request for evidence. the Petitioner submitted a second letter trom the 
foreign entity's director. dated July 13. 2017, in which she certified that the Beneficiary "works at 
[the foreign entity] as a commerci al director from Septemb er I. 2016 to the present and his average 
monthly salary is 305.297 [rubles] ."' The Petitioner provided a description of this position, but did 
not further elaborate on the '·manager consultant" position identified at the time of filing. On appeal. 
the Petitioner submits a master employee list for the foreign entity 
which identities the Beneficiary 
in the position of "sales director' ' since Septembe r I , 2016. 
The Petitioner did not explain why the foreign entity 's initial letter identified the Beneficiary as 
'·manager consultant" if he was employed as a commerci al or sales director. nor did the Petitioner 
explain why the foreign entity 's letters do not consistently identify the Beneficiary's start date with 
the foreign entity. If he had received a promotion from '·manager consultant" to "commercial 
director'' in September 1, 2016, it is reasonable to assume that this change would have been 
acknowledged in the January 2017 letter. The Petitioner must resolve this inconsistency in the 
record with independent. objective evidence pointing to where the truth lies. Maller of Ho. 19 l&N 
Dec. 582. 591-92 (BJA 1 988). 
Further. the Petitioner must establish that the Benetic iary ha
d at least one year of full-time 
continuous employment abroad in a managerial or executive capacity in the three years preceding 
the filing ofthc petition on April 11.2017. See 8 C.F.R. 214.2(1)(3)(iii). The Petitioner indicates 
that the Beneficiary assumed the position of commercial director on September 1. 201 6, less than 
one year prior to the tiling of the petition in April 2017. In addition. since the Beneficiar y entered 
the United States in August 2016 and remained here at the time of filing, his claimed emplo yment as 
the foreign entity's commercial director does not count towards his continuous employment abroad.3 
3 Trips to th e United States for business or pleasure are not interruptive o f the one year of continuous e mployment 
abroad. but such periods shall not be counted toward fulfillment of that requirement. 8 C.F.R. ~ 214.2(1)(l) (ii)(A). In 
this case, the Petitioner must show the Beneficiary was employed abroad in a managerial or executive capacity for a full 
year prior to entering the United States on August 9, 2016. 
1 
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Mauer (?f D- LLC 
Therefore , in order to detennine whether the Beneficiary has the required one year of employment 
abroad in a managerial or executive capacity, we must detennine whether the '·manager consultant'· 
position was in a managerial or executive capacity.-t The Petitioner has not provided a description of 
this position beyond a one-sentence summary of the position. Accordingly . the Petitioner has not met 
its burden to establish that this position required him to perfonn primarily managerial or executive 
duties as defined at section I 0 I (a)( 44) of the Act. For this reason , we will dismiss the appeal. 
HI. U.S. EMPLOYMENT IN A MANAGERIAL OR EXECUTIVE CAPACITY 
The Director also determined that the Petitioner did not establish that its new office would be able to 
support a managerial or executive position within one year of approval of the petition. 
In the denial decision. the Director noted that the Petitioner provided a general overview of the 
purpose of the Beneficiary ' s transfer to the United States . but did not provide a business plan or 
other information regarding the proposed nature and scope of the U.S. busines s, its proposed 
organi zat ional structure , or its financial goals. In addition. the Director emphasized that the 
Petitioner did not indicate how many employees it would hire during the first year, and therefore did 
not show how the company would support the Beneficiary in a manag erial or executive capacity . in 
which most operational dutie s associated with the business would be delegated to subordinates 
within one year. 
On appeal , the submits a business plan for its new office , which indicate s that it will open one retail 
jewelry store in during the first year of operation s. and a total of tour more stores in New 
York and by 2021. 
In the case of a new otlice petition. beyond the description of a beneficiary's proposed job duties. we 
review the petitioner's business and hiring plans and evidence that the busine ss will grow 
sufficiently to support a beneticiary in the intended managerial or executive capacity. A petitioner 
has the burden to establi sh that it would realistically develop to the point where it would require the 
beneficiar y to perform duties that are primarily manag erial or executive in nature within one year. 
Accordingly. the totality of the evidence must be considered in analyzing whether the proposed 
manageri al or executive position is plausible considering a petitioner 's anticipated starting levels and 
stage of development within a one-year period. See 8 C.F.R. ~ 214.2(1)(3)(v)(C). 
A. Projected Staffing and Business Plan 
The Petitioner has consistently stated that it intends to expand the foreign entity's chain of diamond 
and jewelry retail stores to the United States. The Petitioner provided leases tor a retail location and 
4 
The Petitioner submitted the Beneficiary's Russian ·'Individual Income Certificates" for the years 20 15 and 2016. 
which indicate that he received wages from the foreign aftiliate between August 2015 and July 20 16. This evidence 
appears to confirm 12 months of employment with the foreign entity, but it does not support the Petitioner's claim that 
he assumed the commercial director position in September I, 2016. after he came to the United States. His last 
documented payment from the foreign entity was in July 2016. 
4 
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I'vfatter of D- LLC 
an of1ice, invoices showing it has imported inventory from Russia, and photographs which show that 
its first store in was preparing to commence operations. However, as noted by the Director. 
the Petitioner did not provide a business plan or comparable evidence describing the intended scope 
of the otlice. its proposed staffing and structure, or its financial objectives. See generai(v 8 C.F.R. 
214.2(l)(3)(v). 
The five-page business plan submitted on appeal briefly addresses these issues , but it does not 
support the Petitioner's claim that it will employ the Beneficiary in a qualifying managerial or 
executive capacity within one year. 
The business plan states that the "work force at each store planned to be opened will consist of [the 
Bendiciary] ... , marketing and PR specialist, product assortment manager. the director (head) of the 
store and sales manager.'' The business 
plan also provides a "planned employees '" chart for the years 
2017 to 2021. According to this chart , the Petitioner intends to employee the Beneficiary. a product 
assortment manager, and four "sales managers' ' in 2017, and did not intend to hire a store manager 
or marketing and PR specialist until sometime in 2018. Based on the staffing described in the chart, 
the Petitioner would not hire additional store managers until 2019. 
Based on this information, we cannot determine that the Petitioner intends to tilJ the store manager 
or marketing and PR specialist position for its store within one year. It is more likely than 
not that the Beneficiary himselfwould be responsible for overseeing the day-to-day operations of the 
store and handling marketing and public relations duties until those positions are filled. 
In addition, even though the business plan briefly addresses the company's statling plans. Jt 1s 
Jacking critical information. such as specific dates of anticipated hires. job descriptions for proposed 
employees, whether those employees will be full-time or part-time workers. projected salaries or 
wages for proposed staff: and the educational qualifications required for the subordinate positions. 
\Vithout this information, we cannot determine whether the Bene1iciary would supervise subordinate 
managers. supervisors or 
professionals, or determine to what extent the day-to-day, non-managerial 
duties associated with operating a retail store would be allocated to subordinates within one year. 
At most, we can conclude that the Beneficiary \Vould supervise retail sales representatives and a 
"product assortment manager'' whose duties have not been defined, \Vhile also doing work necessary 
to research additional store locations without an administrative or support staff to assist him with 
non-qualifying duties. The Petitioner has not demonstrated that the Beneficiary will primarily 
supervise a subordinate stafl of professionaL manageriaL or supervisory personnel. See section 
10l(a)(44)(A)(ii) of the Act. Furthermore, the Petitioner has not established that it will employ 
suf1icient stafT to will relieve the Beneficiary from performing non-qualifying duties so that he can 
focus on managerial or executive duties. 
In sum, the record does not sufficiently establish the proposed nature, scope. or staffing of the 
company within one year. Without this evidence. the Petitioner has not supported a claim that the 
organization will grow to the point where it can support a managerial or executive position within 
that timeframe. 
.
B. Duties 
The Petitioner stated that the Beneficiary will serve as "Manager of Business Services'· and his 
"primarily responsibilities'' will include overseeing the opening of several retail stores and providing 
"consultative services from marketing. sales, training, and basic knowledge on aging the 
'brand book."' While this description establishes the Beneficiary's authority to oversee 
the new office, it has not provided sufticient detail to establish that he would be performing 
primarily managerial or executive duties within one year. 
The record contains no further description of the nature of the Beneficiary's proposed duties during 
the first year or beyond and there is insufficient information to support a conclusion that he \Vould be 
employed in a managerial or executive capacity. 
The statutory definition of "managerial capacity'' allows tor both ·'personnel managers'' and 
'·function managers." See section 101(a)(44)(A)(i) and (ii) of the Act. Personnel managers are 
required to primarily supervise and control the work of other supervisory. professionaL or 
managerial employees. Section 10 l (a)(44 )(A)(iv) of the Act. Here. although the business plan 
indicates that that he would likely supervise a sales staJf and "product assortment manager'' within 
one year. the Petitioner did not establish that these positions would he manageriaL supervisory or 
professional, and nor did it indicate how much time he would allocate to such supervision in support 
of a claim he would primarily be acting as a personnel manager. 
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 I 01 (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 o·wner or sole managerial 
employee. 
The Petitioner indicates that the Beneficiary will have executive-level authority over the new office. 
but did not establish that he would be primarily focused on the broad goals and policies of the 
company within one year, or that the company would hire sufficient staff to relieve him hom 
pertorming a number of non-qualifying duties. Rather. the Petitioner indicates that the Beneficiary 
will be closely involved in providing training and sales and marketing support. Further, as noted, the 
Petitioner did not establish that it would hire lower-level staff to assist with marketing. 
administrative. or first-line supervisory functions during the first year of operations. 
The Petitioner has consistently stated that the Beneficiary will occupy the senior position in the new 
office, but has not submitted a job description or supporting evidence sufficient to demonstrate that 
Matter ofD- LLC 
he would primarily engage in managerial or executive duties, or that the new office would support a 
managerial or executive position after the initial year of operations. 
IV. CONCLUSION 
The Petitioner has not established that the Beneficiary has been employed abroad in a managerial or 
executive capacity for at least one continuous year in the three years preceding the filing of the 
petition, or that he would be employed in the United States in a managerial or executive capacity 
within one year. 
ORDER: The appeal is dismissed. 
Cite as Matter ofD- LLC ID# 986357 (AJ\.0 Feb. 27, 2018)