dismissed L-1A Case: Marketing

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: NOV. 21, 2024 In Re: 34629809 
Appeal of California Service Center Decision 
Form 1-129, Petition for a Nonimmigrant Worker (L-lA Manager or Executive) 
The Petitioner, a describing itself as a "creative marketing agency," seeks to employ the Beneficiary 
as its chief executive officer under the L-1 A nonimmigrant classification for intracompany transferees. 
See Immigration and Nationality Act (the Act) section 101(a)(15)(L), 8 U.S.C. § 1101(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 the record did not 
establish that the Beneficiary would be employed in a managerial or executive capacity in the United 
States. The matter is now before us on appeal under 8 C.F.R. § 103.3. 
The Petitioner bears the burden of proof to demonstrate eligibility by a preponderance of the evidence. 
Matter of Chawathe, 25 l&N Dec. 369, 375-76 (AAO 2010). We review the questions in this matter 
de novo. Matter of Christo 's, Inc., 26 I&N Dec. 537, 537 n.2 (AAO 2015). Upon de novo review, 
we will dismiss the appeal. 
I. LEGAL FRAMEWORK 
To establish eligibility for the L-lA nonirnmigrant visa classification, a qualifying organization must 
have employed the beneficiary in a managerial or executive capacity for one continuous year within 
three years preceding the beneficiary's application for admission into the 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 affiliate thereof in a 
managerial or executive capacity. Id. 
II. U.S. EMPLOYMENT IN AN EXECUTIVE CAPACITY 
The sole issue we will analyze is whether the Petitioner established that it would employ the 
Beneficiary in an executive capacity in the United States. The Petitioner does not claim that the 
Beneficiary would be employed in a managerial capacity. Therefore, we restrict our analysis to 
whether the Beneficiary would 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 10l(a)(44)(B) of the 
Act. 
When examining the executive capacity of a given beneficiary, we will review 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 an executive capacity. 
See 8 C.F.R. § 214.2(1)(3)(ii). 
A. Duties 
To be eligible for L-lA nonimmigrant visa classification as an executive, a petitioner must show that 
the beneficiary will perform the high-level responsibilities set forth in the statutory definition at section 
101(a)(44)(B)(i)-(iv) of the Act. If the record does not establish that the offered position meets all 
four of these elements, we cannot conclude that it is a qualifying executive position. 
If a petitioner establishes that the offered position meets all elements set forth in the statutory 
definition, it must prove that the beneficiary will be primarily engaged in executive duties, as opposed 
to ordinary operational activities alongside its other employees. See Family Inc. v. USCIS, 469 F.3d 
1313, 1316 (9th Cir. 2006). In determining whether a given beneficiary's duties will be primarily 
executive, we consider the petitioner's description of the job duties, the company's organizational 
structure, the duties of a 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 a beneficiary's actual duties and role in a business. 
The Petitioner indicated it is a "creative marketing agency" specializing in "marketing campaigns, 
content development, events, films, interior design, communications, digital, and training execution 
for a wide array of customers." The Petitioner submitted the following duty description for the 
Beneficiary as its chief executive officer: 
• Spearhead the development of new business and contracts with key customers 
[30%] 
o Meet with executives of existing accounts to ensure continuation of business 
relationship; 
o Attend conferences to generate new business contracts; 
o Meet with potential investors to gain necessary capital. 
• Formulate company policies and strategy within the guidelines set up by board of 
directors [30%] 
o Conduct all-hand staff meetings to delegate duties, check status, discuss 
expectations, and provide guidance on respective departmental performances; 
o Represent company at regular board meetings to discuss and advise on 
personnel issues, business development and company financials; 
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o Present company initiatives to the board. 
• Oversee key performance metrics, operations, and business plan [25%] 
o Oversee the implementation of marketing requirements; 
o Allocate duties among company's departments; 
o Allocate budget across departments. 
• Conduct hirings, terminations, and performance evaluations of direct reports [ 15%] 
The Petitioner submitted a duty description and other supporting documentation reflecting his wide 
involvement in non-qualifying tasks related to the company's provision of services to customers. For 
instance, the duty description states the Beneficiary would be responsible for developing new business 
with customers and implementing marketing. Further, the Beneficiary's primary focus on developing 
new customers and providing professional services to them is reflected in documentation provided on 
the record, much of it dated near to the date the petition was filed in May 2024. 
For example, the Petitioner submitted emails showing him coordinating with a potential client 
regarding arranging an event planner for an investor conference in April 2024 and another from March 
2024 reflecting him discussing potential work on production support at another marketing event in 
New York City. Likewise, other submitted emails from December 2023 show the Beneficiary 
responding to a request from a client related to the Petitioner's potential provision of a "custom booth" 
for another marketing conference, a client sending a purchase order and a statement of work to the 
Beneficiary and his asserted subordinate manager, and the Beneficiary being asked to revise a 
statement of work. Beneficiary emails from March 2024 show him discussing client requirements for 
a project and stating they would "make this happen with style and success." In fact, the Beneficiary 
stated in an email from January 2024 that he had moved to the United States "to support [his 
subordinate Managing Director] as we continue to scale our US operations and capabilities." 
Meanwhile, an email from February 2024 reflects the Beneficiary discussing a meeting with a potential 
customer and inquiring as to how else the Petitioner could support this customer, including a proposed 
"content generation workshop." The Petitioner also provided an invoice showing the Beneficiary 
purchasing a pass to an investor relations and marketing communications forum in April 2024. As 
such, the Beneficiary's duty description and provided supporting documentation suggest his 
substantial involvement in performing a wide array of non-qualifying operational tasks related to the 
company's provision of services, or at the very least, his performance of ordinary operational activities 
alongside his colleagues just prior to the date the petition was filed. 
Whether the Beneficiary is an executive employee turns on whether the Petitioner has sustained its 
burden of proving that their duties would be "primarily" executive. See sections 10l(a)(44)(B) of the 
Act. Here, the Petitioner does not document what proportion of the Beneficiary's duties were 
executive-level functions when the petition was filed and what proportion were non-qualifying 
operational tasks. The Petitioner submitted a duty description and supporting documentation including 
tasks related to sales and the provision of services to clients, but it did not sufficiently quantify the 
time he spent on these duties as compared to qualifying executive-level duties. For this reason, we 
cannot determine whether the Beneficiary would primarily perform the duties of an executive as of 
the date the petition was filed. See IKEA US, Inc. v. US. Dept. of Justice, 48 F. Supp. 2d 22, 24 
(D.D.C. 1999). 
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In contrast, the Petitioner did not sufficiently articulate or document what executive-level tasks he was 
performing when the petition was filed. The Petitioner did not detail or document the capital he 
generated, policies and strategies he formulated, company initiatives he presented to the board of 
directors, marketing plans he put in place, or budgets he set. This lack of evidence leaves substantial 
question as to whether the Beneficiary would primarily perform qualifying executive-level duties 
when the petition was filed. Specifics are clearly an important indication of whether a beneficiary's 
duties are primarily executive 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), 
aff'd, 905 F.2d 41 (2d. Cir. 1990). The Petitioner must resolve inconsistencies and ambiguities in the 
record with independent, objective evidence pointing to where the truth lies. Matter of Ho, 19 I&N 
Dec. 582, 591-92 (BIA 1988). 
Even though the Beneficiary holds a senior position within the organization, 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 10l(a)(44)(B) of the 
Act. By statute, eligibility for this classification requires that the duties of a position be "primarily" 
executive in nature. Id. The Beneficiary may exercise discretion over the Petitioner's day-to-day 
operations and possess the requisite level of authority with respect to discretionary decision-making; 
however, the position descriptions alone are insufficient to establish that his actual duties would be 
primarily executive in nature. 
B. Operations and Staffing 
Pursuant to section 101(a)(44)(C) of the Act, if staffing levels are used as a factor in determining 
whether an individual is acting in an 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. 
As discussed, the Petitioner asserted that the Beneficiary would have been employed in an executive 
capacity when the petition was filed. The statutory definition of the term "executive capacity" focuses 
on a person's elevated position. Under the statute, a beneficiary must have the ability to "direct the 
management" and "establish the goals and policies" ofan organization or major component or function 
thereof. Section 10l(a)(44)(B) of the Act. To show that a beneficiary will "direct the management" 
of an organization or a major component or function of that organization, a petitioner must show how 
the organization, major component, or function is managed and demonstrate that the beneficiary 
primarily focuses on its broad goals and policies, rather than the day-to-day operations of such. An 
individual will not be deemed an executive under the statute simply because they have an executive 
title or because they "direct" the organization, major component, or function 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." Id. 
The Petitioner indicated in the Form I-129, Petition for a Nonimmigrant Worker, that it had four 
employees. The Petitioner provided an organizational chart reflecting that he would oversee a 
managing director, a vice president- head of production, and a head of finance and operations. The 
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chart further showed that the managing director would supervise a senior event manager while the 
vice president would oversee a production coordinator, an executive producer, and an event manager. 
The Petitioner's statements and the supporting evidence leave substantial uncertainty as to whether it 
was sufficiently operational to support him in a qualifying executive capacity when the petition was 
filed in May 2024. On appeal, the Petitioner acknowledges that it only employed the Beneficiary and 
his three claimed subordinate managers when the petition was filed. This leaves question as to who 
would perform the non-qualifying operational aspects of the business when the petition was filed and 
whether the claimed managers subordinate to the Beneficiary were acting in their asserted 
management roles. The Petitioner submitted substantial documentary evidence reflecting him and his 
subordinate managing director performing a wide array of operational duties near to the date the 
petition was filed, such as communicating with clients on potential events, arranging booths for 
conferences, working on statements of work for clients, among other non-qualifying operational tasks. 
As such, the provided documentation suggests that the Beneficiary and his managing director were 
more likely than not operating the business rather than delegating these non-qualifying tasks to 
subordinates, such as production coordinators and event managers, who were not employed when the 
petition was filed. As discussed, the Beneficiary stated in an email that he arrived in the United States 
to support his managing director in the provision of services until the Petitioner scaled up its 
operations. It is also noteworthy that the Petitioner provided little evidence to substantiate its finances 
and revenue as of the date the petition was filed. 
In sum, the submitted evidence and statements of the Petitioner reflect that it had limited operations 
as of the time the petition was filed leaving uncertainty as to whether it could have supported the 
Beneficiary in an executive capacity. For example, the Petitioner stated it had not hired subordinate 
employees to sell and provide services to clients when the petition was filed. There is also no 
supporting evidence reflecting the Beneficiary's delegation of duties to his subordinates, and as 
discussed, little documentation to support his performance of qualifying executive-level duties. Again, 
the Petitioner must resolve inconsistencies and ambiguities in the record with independent, objective 
evidence pointing to where the truth lies. Matter ofHo, 19 I&N Dec. at 582, 591-92. Therefore, it is 
questionable given the Petitioner's apparent operations when the petition was filed, the submitted 
supporting documentation, and the nature of the business, that the Beneficiary would have acted in an 
elevated executive-level capacity where he would primarily focus on broad goals and policies rather 
than day-to-day operations. 
For the foregoing reasons, the Petitioner has not sufficiently established that the Beneficiary would be 
employed in an executive capacity. 
ORDER: The appeal is dismissed. 
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