dismissed L-1A Case: Machine Shop

U.S. Citizenship · 
and Immigration 
Services 
MATTER OF .1-C-M-S- CORP. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: MAR. 20,2018 
APPEAL OF CALIFORNIA SERVICE CENTER DECISION 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a machine shop, seeks to temporarily employ the Beneficiary as its president under 
the L-1 A nonimmigrant classification for intracompany transferees. See Immigration and 
Nationality Act (the Act) section 101 (a)(IS)(L), 8 U.S.C. § II 01 (a)( 15)(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: (I) it would employ the Beneficiary in a managerial or executive 
capacity in the United States; and (2) the Beneficiary has one continuous year of full-time employment 
abroad in a managerial or executive capacity in the three years·preceding the tiling of the petition. 
On appeaL the Petitioner submits additional evidence related to the Beneficiary's employment 
abroad and asserts that the Director mischaracterized the nature of his proposed duties in the United 
States. The Petitioner maintains that the Beneficiary has been employed abroad, and will be 
employed in the United States, in an executive capacity. 
Upon de novo review, we will withdraw the Director's determination that the Beneficiary does not 
have the required one year of full-time employment abroad in a managerial or executive capacity. 1 
However, as the Petitioner has not overcome the remaining ground lor denial, we will dismiss the 
appeal. 
. I. LEGAL FRAMEWORK 
To establish eligibility tor 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," tor one continuous year within three years preceding the beneficiary's application tor 
admission into the United States. Section IOI(a)(15)(L) of the Act. In addition, the beneficiary 
1 See 8 C.F.R. §§ 214.2(1)(3)(iii) and (iv). The Petitioner submitted sufficient evidence to establish that the Beneficiary 
has served as the president of the Petitioner's claimed Venezuelan affiliate, with responsibility for oversight of a retail 
pharmacy company with more than 45 employees, for a number of years. Upon review of the totality of the evidence. 
we find that the Petitioner established by the preponderance of the evidence that he has been employed abroad in a 
primarily managerial or executive c<:~pacity on a continuous and full-time basis. 
Muller of J-C-M-S- Cmp 
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. Section 
JOJ(a)(IS)(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 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) of the Act. 
If starting levels are used as a f~1ctor in determining whether an individual is acting in a managerial 
or executive capacity, U.S. Citizenship and Immigration Services (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 IOI(a)(44)(C) of the Act. 
II. U.S. EMPLOYMENT IN AN EXECUTIVE CAPACITY 
In the denial decision, the Director determined that the Petitioner's description of the Beneficiary's 
duties indicated that he would be performing a number of tasks not typically performed by someone 
in a managerial or executive position. The Director further found that the Petitioner did not establish 
how the staffing and structure in place at the time of tiling would be sufficient to support the 
Beneficiary in a managerial or executive capacity. 
On appeal, the Petitioner submits an expanded description of the Beneficiary's proposed duties and 
asserts that the Director mischaracterized his executive-level business development functions as non­
qualifying sales or marketing tasks. The Petitioner emphasizes that the company has a structure in 
place that will not require the Beneficiary to spend significant portion of his time on non-qualifying 
activities, and he will instead primarily focus on dictating the company's strategies, growth, and 
direction. As the Petitioner does not claim that the Beneficiary will be employed in a managerial 
capacity, the scope of our analysis will focus on whether the Petitioner established that his role will 
be primarily executive in nature. 
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 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 of the job duties, 
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. 
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Mauer of.J-C-M-S- Cmp. 
Accordingly, we will discuss evidence regarding the Beneficiary's job duties along with evidence of 
the nature of the Petitioner's business and its stafllng levels. 
,A. Duties 
Based on the 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). 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. USC/S, 469 F.3d 1313, 1316 (9th Cir. 2006); 
Champion World, 940 F.2d at 1533. 
The Petitioner was established in 1996 and is described on the Form 1-129 as a "machine shop." 
According to the Petitioner's business plan, it offers "mechanical repairs and services tor the 
automotive industry" and its primary clients are auto mechanic shops. At the time of filing, the 
Petitioner provided the following breakdown of the Beneficiary's proposed duties as president: 
• Designs and implements strategic plans, related but not limited to: expansion, 
down-sizing, shop location, vendor sources, building client relationships, 
incentive programs, etc.; 40% or 16 hrs/wk 
• Research potential clients and prepare proposals for potential clients; 25% or I 0 
hrs/wk 
• Meets with and presents business proposals to potential clients; I 0% or 4 hrs/wk 
• Meets with current clients as needed to reinforce relationships, assess needs and 
satisfaction; I 0% or 4 hrs/wk 
• Reviews periodic reports from management and supervisory staff to assess the 
state of operations; 5% or 2 hrs/wk 
• Meets with management staff to discuss and review issues and/or concerns, 
reports and other data that impacts operations of the company; I 0% or 4hrs/wk 
The Petitioner also included a list of 14 duties which included those listed above, as well as "utilizes 
full discretion to take any actions needed," "oversees personnel actions with recommendation and 
consultation of management staff," and "performs periodic walkthroughs of workshop and work 
stations with management and supervisory staff." This description also included general functions 
such as acting as the company's representative in all business matters, acting as legal and fiduciary 
representative, being responsible for discretionary decision making, convening and chairing board 
meetings, and assigning or delegating duties as appropriate. 
The Petitioner's business plan noted that its marketing strategy relics heavily on relationship 
building, that the Beneficiary has already implemented strategies to "meet with clients at their 
location on a regular basis," and that he would continue to perform these activities to encourage 
increased orders and word-of~mouth referrals. Similarly, the business plan mentions that, as part of 
the Petitioner's sales plan, the Beneficiary "will continue to meet with potential customers at their 
location to solicit new business." 
Maller of.J-C-M-S- Ctnp. 
In a request for evidence (RFE), the Director acknowledged the submitted job description and 
advised the Petitioner that many of the Beneficiary's proposed responsibilities, requiring "up to 
85%" of his time, appeared to involve non-qualifying duties. In response, the Petitioner explained 
that most of the Beneliciary's time will be allocated to strategic planning and business development 
functions, which must be considered inherently executive duties. The Petitioner further addressed 
each of the six areas ol' responsibility and explained that each duty requires a level of discretionary 
authority that the company's lower level staff do not have. 
However, the Director ultimately concluded that the Beneficiary's duties lacked details regarding his 
specific proposed daily activities, but. appeared to include a number of non-executive duties related 
to business development, tinancials, marketing, analysis, contract negotiation, research and customer 
service. On appeal, the Petitioner provides a somewhat expanded breakdown of the Bene!iciary's 
duties, noting that a detailed daily schedule cannot be provided until he assumes the offered 
position 2 The Petitioner maintains that the described duties do not indicate that the Beneficiary 
would be handling day-to-day activities in the operation of the machine shop, but rather show that he 
would be responsible lor "strategic planning, setting goals, policies, business development, and 
consultation and meetings with management staff" 
We agree that the Petitioner has not established that the Beneficiary's duties would be primarily 
executive in nature. The Petitioner indicates that the Beneficiary will allocate 40% of his time to 
designing and implementing "strategic plans" related to expansion, downsizing, exploring additional 
services or operating hours, building client relationships, developing incentive programs, and vendor 
sources. While developing company strategy is generally regarded as an executive task, it is unclear 
how the petitioning company, a six-person shop that has been in business lor 20 years, requires an 
executive to spend this amount of time on strategic planning. In fact, the business plan indicates that 
the Beneficiary has already implemented marketing, sales, and service strategies that he intends to 
continue, therefore it is not clear that he will need to engage in strategic planning as part of his day­
to-day routine. 
Further, the Petitioner submitted a letter in response to the RFE highlighting the fact that any 
changes in strategy or major decisions require the Beneficiary to perform market research and 
analysis, non-executive duties that do not appear to be delegated to subordinates. Although we do 
not doubt the 13eneliciary's authority to make executive-level decisions regarding the company's 
direction, the record does not support the Petitioner's claim that he will be required to perform these 
duties on a regular and ongoing basis or that all of his day-to-day tasks in this area of responsibility 
would be executive in nature. 
The Petitioner states that a total of 45% of the Beneficiary's time will be allocated to researching 
potential clients, preparing proposals, meeting with clients and potential clients to present business 
proposals, and meeting with current clients to reinforce relationships. The Petitioner characterizes 
2 According to the Petitioner's business plan, the Beneficiary took over the rn'!nagement of the company in November 
2016. 
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Malter of.I-C-M-S- Corp. 
these duties as executive-level "business development" functions that can be distinguished from 
sales and marketing duties. However, the Petitioner's business plan indicates that these activities are 
critical to its sales and marketing plans and that the Beneficiary is the one responsible for performing 
these duties. While the Beneficiary's authority to finalize and sign service contracts indicates his 
senior position in the company, his responsibility to "meet with potential customers at their location 
to solicit new business" and his relationship-building activities to encourage increased orders and 
referrals are not executive-level duties. The Petitioner does not claim that its other employees are 
engaged in these types of sales, marketing, or "business development" duties, and it has not 
submitted sufficient support for its claim that the significant amount of time the Beneficiary would 
spend on research, proposal, and client-facing duties would be executive in nature. 
Even though the Beneficiary holds the senior position within the company, the fact that he will 
manage or direct the business does not necessarily establish eligibility for classification as an 
intracompany transferee in an executive capacity within the meaning of section 101 (a)( 44)(B) of the 
Act. By statute, eligibility for this classification requires that the duties of a position be "primarily" 
executive in nature. Section 101 (A)(44)(B) of the Act. Here, the job description alone is 
insufficient to meet the Petitioner's burden of proof. 
B. Startlng 
On the Form 1-129, Petition for a Nonimmigrant Worker, the Petitioner stated that it had six current 
employees at the time of tiling in June 2017. The Petitioner's organizational chart identified those 
employees as a sales manager, a workshop coordinator, and four mechanic shop workers, with the 
sales manager and workshop coordinator reporting directly to the Beneficiary. 
The Petitioner indicated that the sales manager is responsible for customer service, including 
promoting a friendly environment, providing service in accordance with the company's customer 
service policies, resolving complaints trom customers, and reviewing customer feedback. The 
Petitioner also indicated that this employee reviews parts and materials orders, controls the entry and 
exit of materials and equipment, verities and authorizes budgets for work performed, and ensures 
that work is delivered on time. Therefore, despite her job title, it docs not appear that she would 
assist the Beneficiary with sales functions. The workshop coordinator performs duties consistent 
with his job title, including planning and scheduling the mechanics and their work, and reviewing its 
quality. 
The statutorv definition of the term "executive capacity" focuses on a person's elevated postt1on 
within a complex organizational hierarchy, including major components or functions of the 
organization, and that person's authority to direct the organization. Section IOI(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 he "directs" the enterprise as the owner or sole managerial 
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Mauer of.J-C-M-S- Corp. 
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. 
As required by section 101(a)(44)(C) of the Act, if staffing levels are used as a factor in determining 
whether an individual is acting in a mapagerial or executive capacity, USCIS must take into account 
the reasonable needs of the organization, in light of the overall purpose and stage of development of 
the organization. Here, the Petitioner indicates that the Beneficiary will take over as the executive of 
a machine workshop that has been in business for 20 years, but it has not shown how this company is 
able to support the Beneficiary in a position in v.:hich his actual day-to-day duties would be primarily 
executive as defined in the statute. The record does not support a finding that the Beneliciary, who 
would have one subordinate tirst-line supervisor, would primarily direct the management of the 
company and focus on its broad goals and policies. · The Petitioner correctly points out that the 
Beneficiary would not be required to provide the company's core services, i.e., repairing engines, 
machines, and other equipment. However, as discussed, there are other non-executive functions, 
such as sales and marketing, which are included in the Beneficiary's job description, will require a 
large portion of his time, and which have nol been assigned to subordinate personnel. The Petilioner 
has not met its burden to show how the Beneficiary's duties would be primarily executive in nature . 
Therefore, for all of the reasons discussed, the Petitioner has not established that it will employ the 
Beneficiary in an executive capacity. 
lll. QUALIFYING RELATIONSHIP 
Although not addressed in the Director's decision, the record as presently constituted contains 
insutlicient evidence of a qualifying relationship between the Petitioner and the Beneficiary's 
foreign employer. To establish a "qualif)ring relationship," the Petitioner must show that the 
Beneficiary's foreign employer and the proposed U.S. employer are the same employer (i.e. one 
entity with "branch" offices), or related as a "parent and subsidiary" or as "affiliates." See section 
101 (a)(15)(L) of the Act; see also 8 C.F.R. § 214.2(1)(1 )(ii) (providing definitions of the terms 
;;parent," ;;branch,'" "subsidiary," and ;'aJliliate"). 
The Petitioner claims that it has an affiliate relationship with the Beneficiary's foreign employer 
based on the Beneficiary's ownership and control of both companies. See 8 C.F.R. 
§ 214.2(l)(i)(ii)(L). The Petitioner provided sufficient evidence to establish that the Beneficiary is 
the majority owner of the foreign entity. The Petitioner claims that the Beneficiary purchased 100% 
of its assets and stock from its prior owner, on October 31, 2016, for a pure hase price 
of $950,000. The Petitioner submitted an "Asset Purchase Agreement and Sale Agreement" as 
evidence of this transaction, but did not provide copies of its stock ccrtiticates, stock ledger, or other 
primary evidence confirming that the change in ownership occurred. 
Moreover, the Petitioner provided a copy of its 2016 federal tax rewm which indicates at Schedule 
K-1 that the company's owners are (67%) and (33%). The 
Petitioner did not explain why the Schedule K- f did not identify the Beneficiary as the Petitioner's 
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Maller ofJ-C-M-S- Co'l'· 
sole owner, as contemplated by the submitted purchase agreement signed in 2016. The Petitioner 
must resolve this inconsistency in the record with independent, objective evidence pointing to where 
the truth lies. Matter oj'Ho. 19 I&N Dec. 582, 591-92 (BIA 1988). 
Based on the lack of evidence of the Petitioner's ownership, and the inconsistency noted above, the 
Petitioner has not supported its claim that the Beneficiary is its sole owner or that it has an aftiliate 
with the Benel1ciary's foreign employer. 
IV. CONCLUSION 
The Petitioner did not establish that it will employ the Beneficiary in an executive capacity or that it 
has a qualifying relationship with the Beneficiary's foreign employer. 
ORDER: The appeal is dismissed. 
Cite as Mauer o/.1-C-M-S- Corp., ID# 1077599 (AAO Mar. 20, 2018) 
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