dismissed L-1A Case: Marketing

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MATTER OF U-M- SA DE CV 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: JAN. 19,2018 
APPEAL OF CALIFORNIA SERVICE CENTER DECISION 
PETITION: FORM 1-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a marketing firm in Mexico, tiled the petition on behalf of its new U.S. subsidiary. 
It seeks to temporarily employ the Beneficiary as chief executive officer 
(CEO) of the U.S. company's new office 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-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 record did not 
establish, as required, that: (1) the new U.S. office will employ the Beneficiary in an executive 
capacity within one year of approval of the petition: and (2) the U.S. office has secured sufficient 
physical premises. 
The matter is now before 
us on appeal. In its appeal, the Petitioner submits various exhibits, mostly 
duplicating prior submissions, and asserts that the Director erred with regard to specifics of the 
company's office space and staffing. The Petitioner also maintains that it has established that it will 
employ the Beneficiary in a primarily executive capacity. 
Upon de novo review, we will dismiss the appeal. 
I. LEGAL FRAMEWORK 
To establish eligibility for 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,'' 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. ld. The new 
office must support a managerial or executive position within one year of the petition's approval. 
8 C.F.R. § 214.2(1)(3)(v)(C). 
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Matter of U-M- SA de CV 
II. EMPLOYMENT IN AN EXECUTIVE CAPACITY 
The Director found that the Petitioner did not establish that its new U.S. office would employ the 
Beneficiary in a primarily executive capacity within one year of the approval of the petition.
1 
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) of the 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 101 (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 managerial or 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 Petitioner distributes free materials such as notebooks to college students. The materials contain 
promotional content, such as advertisements and coupons , from local businesses. The U.S. 
company's business plan stated that the Beneficiary "will devote full time to administration to 
administration and management of and to growing its business by 
utilizing his vast experience and skills to obtain clients desirous of successfully marketing to college 
students.,. 
After the Director asked for more details about the Beneficiary's intended work in the United States, 
the Petitioner stated: 
1 
The Petitioner does not claim that the Beneficiary will be employed in a managerial capacity. 
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Matter of U-M- SA de CV 
Currently , [the Beneficiary] is negot1atmg agreements with U.S. universities and 
colleges, reporting back to the board in Mexico, securing advanced funding to print 
the materials by acquiring sponsors, and overseeing an assistant(s) who helps with the 
day-to-day upkeep of the company. [The Beneficiary] enjoys a wide-latitude to enact 
policy that steers the company and makes broad decisions about with who 
enters into partnerships. For example, he has already decided to 
focus on smaller businesses in the United States rather than large corporations like 
in order to build a broader client base that is less vulnerable to losing 
individual clients. 
The Petitioner also submitted a list of the Beneficiary's initial duties: 
• Open and initiate the office in the US. 
• At the beginning answer the phone calls and emails of the company. 
• Get the meetings and appointments of the company. 
• Create the strategy and the course ofthe company. 
• Find the universities [to] offer the notebooks. 
• Get the personnel for the key positions to startup the company in the US. 
• Find and follow up [with] the new clients that get the sponsorship of the 
notebook. 
In the decision denying the petition, the Director stated that the Petitioner did not provide enough 
information to show that the Beneficiary's daily duties would be primarily executive (or managerial) 
in nature. 
On appeal, the Petitioner asserts that it "provided evidence of specific descriptions of the day to day 
activities of the CEO ," and that the Beneficiary "is responsible for steering the company and 
deciding with whom to partner." At issue is not the level of the Beneficiary's authority, but whether 
his duties would be primarily executive within one year after approval of the petition. The 
submitted job description combines the high-level function of setting company strategy with non­
qualifying tasks such as answering the telephone. The Petitioner has not shown that qualifying 
executive functions would predominate within one year of approval of the petition. 
B. Staffing 
Beyond the required description of the job duties , USClS 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 
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organization, and that person's authority to direct the organization. Section 10l(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 ofthe organization." ld. 
The U.S. company's business plan indicated that the company would eventually employ the 
following subordinate staff: 
• Chief Financial Officer 
• Public Relations Director 
• Operations Manager 
• Two Sales Representatives 
A "Personnel Plan" included in the business plan indicated that the company would hire three 
employees during the first year. Growth plans after the first year of operations cannot establish 
eligibility under the new oftice provisions in the regulations. 
After the Director asked for additional details, the Petitioner stated that the U.S. company's initial 
employees would be "the CEO, an Assistant, and a Sales Representative within the first year.'' The 
Petitioner submitted the following job descriptions for those two intended employees: 
Assistant 
• Make and take calls for the CEO 
• Organize client information and files at the direction of the CEO 
• Welcome clients arriving on-site to meet with the CEO or Sales Rep 
• Organize CEO's calendar and schedule 
• Perform other day-to-day office tasks at the behest of the CEO 
Sales Representative 
• Make[], present and [be] responsible [for] the sales strategy of the year. 
• Represent the company with clients. 
• The creative mind in the company. 
• Develop a sales team for the company. 
• Responsible [for] sale [ofl all the media tools that the company has. 
• Make a database of clients for the company. 
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Matter of U-M- SA de CV 
In the denial notice , the Director stated that the Petitioner did not provide sufficient information 
about the duties that the Beneficiary's subordinates would perform. Therefore , the Director found 
that the Petitioner had not shown that those subordinates would relieve the Beneficiary from 
primarily having to perform non-qualifying tasks. 
On appeal, the Petitioner repeats the job descriptions quoted above and states that it has established 
that the two named subordinates will carry out the U.S. company's day-to-day functions. Those job 
descriptions indicate that both the &ssistant and the sales representative would be front-line workers, 
primarily performing clerical or operational tasks. The Petitioner did not establish any lower layers 
of management that the Beneficiary would oversee in an executive capacity. The Beneficiary would 
be a first-line supervisor of non-professional employees whose duties would be neither executive nor 
managerial. 
The Petitioner 
has not established that the U.S. company will employ the Beneficiary in a primarily 
executive capacity during the first year following approval of the petition. 
III. NEW OFFICE 
If the beneficiary is coming to the United States as a manager or executive to open or to be 
employed in a new office in the United States, the petitioner must submit evidence that it has secured 
sufficient physical premises to house the new office. 8 C.F.R. § 214.2(1)(3)(v). 
In its business plan, the U.S. entity stated plans to employ three individuals during its first year, 
growing to seven in the fifth year. The company leased space in a shared office suite; the 
exclusive space consisted of a 15'7" x 18' 11" office and a 6'x6' workstation. The 
Petitioner asserted that "[t]he leased space is sufficient to house the 3 employees that 
Promotions will initially employ." 
In the denial notice, the Director stated: "the actual space that is rented as a new office is one single 
office and a cubicle. The kitchen and the shared conference room ... [cannot] be deemed as a work 
space.,. The Director found that the Petitioner had not shown "that the new office will have 
sufficient space for a workforce of5 employees as projected in [the Petitioner's] statements." 
On appeal , the Petitioner observes that, while the U.S. company will grow, it "will initially employ 
only three employees." This figure appears in the pre-filing business plan, and therefore does not 
represent an after-the-fact revision. We agree with the Petitioner that the initial oftice space need 
not be large enough to hold employees whose planned hiring is years in the future. 
The Petitioner has documented sufficient physical premises for its planned three-person first-year 
work force. We therefore withdraw this ground for denial , but will still dismiss the appeal because 
the other ground , already discussed. still stands. 
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IV. CONCLUSION 
The Petitioner has secured sufficient physical premises for the new office's planned first year of 
operations. The Petitioner has not, however, established that the new office will support an 
executive position within one year of approval of the petition. 
ORDER: The appeal is dismissed. 
Cite as Mattero(U-M-SA de CV, ID# 916276 (AAO Jan. 19, 2018)