dismissed L-1A Case: Marketing Research

MATTER OF A-C-G-, INC. 
APPEAL OF VERMONT SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: AUG. 4, 2017 
PETITION: FORM 1-129, PETITION FOR A NONIMMIGRANT WORKER 
ThePetitioner, a consulting company for marketing research firms, seeks to temporarily employ the 
Beneficiary as its chief executive officer (CEO) under the L-1A nonimmigrant classification for 
intracompany transferees. See Immigration and Nationality Act (the Act) section 101(a)(l5)(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 Vermont Service Center denied the petition, concluding that the record did not 
establish, as required, that: (1) the Beneficiary will be employed in the United States in an executive 
capacity; and (2) the Beneficiary has been employed abroad in an executive capacity. 
The matter is now before us on appeal. In its appeal, the Petitioner submits additional evidence and 
asserts that the Director erred by mischaracterizing record materials and disregarding corroborating 
evidence. 
Upon de novo review, we will dismiss the appeal. 
I. LEGAL FRAMEWORK 
To establish eligibility for the L-1 nonimmigrant visa classification, a qualifying organization must 
have employed the B~neficiary in a managerial or executive capacity, or in a position involving 
specialized knowledge, for one continuous year within three years preceding the Beneficiary's 
application for admission into the United States. 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, executive, or specialized knowledge capacity. Section 
101(a)(15)(L) ofthe Act. 
The regulation at 8 C.F.R. § 214.2(1)(3) states that an individual petition filed on Form I-129, 
Petition for a Nonimmigrant Worker, must include evidence that the petitioner will employ the 
beneficiary in an executive or managerial capacity, or a position involving specialized knowledge, 
including a detailed description of the services to be performed. The evidence must also show that 
the beneficiary has at least one continuous year of full-time employment abroad with a qualifying 
Matter of A-C-G-, Inc. 
org'anization, in an executive or managerial capacity or a position involving specialized knowledge, 
within the three years preceding the filing of the petition. 
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II. EMPLOYMENT IN AN EXECUTIVE CAPACITY 
The Director denied the petition based on a finding that the Petitioner did not establish that the 
Beneficiary will be, and has been, employed in an executive capacity. The Petitioner does not claim 
that the Beneficiary will be or has been employed in a managerial capacity or a position involving 
specialized knowledge. Therefore, we restrict our analysis to whether the Beneficiary will be, and 
has been, employed in an executive capacity. 
The Act defines the term "executive capacity" 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 101(a)(44)(B) ofthe Act. 
A. U.S. Employment in an Executive Capacity 
1. Duties 
When examining the executive capacity of the Beneficiary, we will look first 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. 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 executive duties, as opposed to ordinary operational 
activities alongside the Petitioner's other employees. See Family Inc. v. USC IS, 469 F .3d 1313, 
1316 (9th Cir. 2006); Champion World, 940 F.2d 1533. 
The Petitioner's business plan stated that the Beneficiary is already managing the petitioning U.S. 
company as its CEO, although the Petitioner also indicated that the Beneficiary is not yet in the 
United States, and did not provide evidence that he was previously authorized to work in the United 
States. The business plan provided job descriptions for several positions, including ones that had not 
yet been filled. The Beneficiary's job description follows below. In later correspondence, the 
Petitioner estimated the percentage of time that the Beneficiary would devote to particular tasks. 
Where applicable, we have added those percentage figures: 
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Matter of A-C-G-, Inc. 
Executive Functions 
• Establishing, negotiating, and overseeing strategic partnerships to establish the 
company's presence in the US [no percentage figure cited] 
• Liaising with 3rd party such as CPA, Law Firm and Independent consultants to 
formulate policies for organizational development [5%] 
• Developing relationships with Private Equity, Investment Banking and 
Acquisition Candidate's key personnel to create a conducive environment for 
business furtherance [ 15%] 
• Strategize, Create and oversee business plan to guide organizational objectives 
[15%] 
• Attend industry events, seminars and conferences to present [the Petitioner's] 
thought leadership, experience and expertise in the industry [ 1 0%] 
• Preparation and filing financial and business reports to comply with both internal 
and statutory requirements [ 5%] 
• Negotiate and execute agreements wherever necessary for business operations, 
client and vendor relationships [ 15%] 
Operations and Personnel Management 
• Overseeing recruitment and training of administrative, consulting, and business 
development personnel to establish the US office [ 10%] 
• Conducting periodic meetings and reviews to ensure that the US office is 
operating efficiently and effectively [1 0%] 
Marketing Management 
• Overseeing the company's brand presence, marketing processes and promotional 
activities in the US [5%] , 
• Developing Sales Strategies for sales personnel and partners [5%] 
• Ensuring customer satisfaction and customer support in strategic new client 
acquisition efforts [5%] 
As an example of the Beneficiary's activities for the company, the Petitioner stated: 
[The Beneficiary] recently negotiated and signed an agreement with a private equity 
firm. [The Petitioner's] role will be to help investors identify, validate and conclude 
investments in Marketing Research companies across North America. To 
[accomplish] this objective, [the Beneficiary] has been actively talking to marketing 
research companies that are considering capital infusion and/or buy-out. 
The Petitioner added: 
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Matter~~ A-C-G-, Inc. 
[The Beneficiary] will focus on the following to grow [the company]: 
1. New Client Acquisition for Management Consulting Services. 
2. Identifying acquisition targets on behalf of PE investors. 
3. Conducting promotion and public relationship [sic] activities in the industry. 
[The Beneficiary] will oversee [the Petitioner's] brand presence through the following 
methods: 
1. Enrolling in industry specific associations. 
2. Participating in industry events. 
3. Obtaining coverage in industry media: print and online. 
4. Promoting work experience, offerings and best practices to highly targeted 
industry contacts. 
The Director denied the petition, stating that the "duties in and of themselves do not appear primarily 
executive in nature." The Director also found that the Petitioner had not shown "that the beneficiary 
is directing the management of the organization." 
On appeal, the Petitioner asserts that the Director interpreted the regulations too narrowly, because 
the definition of "executive capacity" includes the requirement that a beneficiary "[ d]irects the 
management of the organization or a major component or function of the organization"; the 
beneficiary need not direct "the management of the organization." 
The Petitioner states: 
[T]he petitioner submitted a letter [describing the Beneficiary's intended position]. 
Per the language of the [U.S. Citizenship and Immigration Service (USCIS)] denial 
notice itself, the Vermont Service Center acknowledged the letter "describes the 
beneficiary's duties as being executive in nature." While admitting the duties are 
executive in nature on one hand, the USCIS denial notice nevertheless proceeds to 
state the position is not executive in nature. 
The Petitioner has selectively read the denial notice. The phrase in question derives from this 
passage: "although the letter ... describes the beneficiary's duties as being executive in nature, the 
evidence of record does not support the assertion." When read in context, it is clear that, in the 
quoted passage, the Director neither "acknowledged" nor "admit[ ed]" that "the duties are executive 
in nature." Rather, the Director acknowledged only that the Petitioner had claimed the duties were 
those of an executive. 
In several instances, the Petitioner has listed responsibilities rather than specific tasks that the 
Beneficiary would perform. For example, the Petitioner did not explain exactly what the Beneficiary 
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Matter of A-C-G-, Inc. 
would do to develop relationships with outside entities, oversee the company's brand presence, and 
ensure customer satisfaction. 
Preparing reports, meeting with accountants and attorneys, and conducting promotional activities are 
not self-evidently executive functions. Without further details and information, we cannot find that 
the Beneficiary's involvement in these activities show that he will be an executive. 
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 of reiterating the 
regulations. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1103, 1108 (E.D.N.Y. 1989), af('d, 905 
F .2d 41 (2d. Cir. 1990). The actual duties themselves reveal the true nature of the employment. !d. 
Therefore, reciting a beneficiary's vague job responsibilities or broadly-cast business objectives is 
not sufficient; the regulations require a detailed description of the beneficiary's daily job duties. 
Other duties presume the existence of subordinate staff, such as the Beneficiary's oversight over 
training and his authority to call meetings. As we shall discuss below, the Petitioner had no such 
staff at the time of filing. These duties represent, at most, the Petitioner's expectations about what 
the Beneficiary's duties will be at some future time when the vacant positions are filled. 
We note that the Petitioner submitted promotional materials which cast doubt on the accuracy of the 
submitted job description. A brochure called includes "Leadership 
Profiles" for several officials of the organization. The Beneficiary's profile states that "[h ]e consults 
for our clients in both practice areas of organic and inorganic business development." This indicates 
that, in promotional materials aimed at prospective clients, the Petitioner presents the Beneficiary as 
an active consultant for the organization. The provided job description did not mention the 
Beneficiary's active involvement in client consultation, which is very different from executive-level 
oversight over subordinate consultants. Therefore, the Petitioner's evidence is inconsistent and the 
job description is insufficient to establish that the nature of the Beneficiary's duties would be 
primarily executive. 
2. Staffing 
Beyond the required description of the job duties, USCIS 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 
organization, and that person's authority to direct the organization. Section IOI(a)(44)(B) of the 
Act. 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. 
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Matter of A-C-G-, Inc. 
Inherent to the definition, a beneficiary must primarily focus on the broad goals and policies of the 
organization rather than the day-to-day operations of the enterprise. 
When the Petitioner filed the petition in October 2016, the petition form indicated that the company 
had one U.S. employee, ~ho is apparently the individual who co-founded the company with the 
Beneficiary. The Petitioner's business plan stated that the company "will employ a team of 
consultants," but not that it already does. The same document indicated that the company "has done 
multiple consulting projects for US based clients with an US based contractor and some support 
from the Indian entity." The Petitioner did not provide documentary evidence to support this claim 
or to specify the number of outsourced workers and the nature of the work they performed. 
The business plan also stated that the company "plans to hire" two consultants, an office manager, a 
business development director, and a business development manager by the fourth quarter of 2017. 
Organizational charts showed the company's projected structure in the fourth quarters of 2017 and 
2019, but these projections did not establish the company's personnel as of the petition's tiling date. 
The Petitioner must establish eligibility as of the petition's filing date. See 8 C.F.R. § 1 03.2(b )(1 ). 
We will only consider intended future hires in the context of a petition filed for a new office. See 
8 C.F.R. § 214.2(1)(3)(v)(C)(3). The Petitioner does not claim to meet the criteria of a new office. 
Therefore, we need not discuss particulars of the planned, but unfilled, positions. 
Even then, neither of the projected organizational charts indicated that the company would employ 
"sales personnel" as shown in the job description for the CEO (and that of the yet-to-be-hired 
business development director, who would "[w]ork ... with the CEO to define the direction of the 
sales team.") 
The Director found that the Petitioner did not have sufficient staff at the time of tiling to relieve the 
Beneficiary from performing the non-executive tasks necessary to run the business from day to day. 
The Director also found that the company did not yet have a management structure for the 
Beneficiary to direct on an executive level. The Director added that, because the Petitioner must 
establish eligibility at the time of filing, the Petitioner could not overcome this finding by explaining 
its plans to hire more subordinate employees in the future. 
Directing the management of an organization, or of a major component or function, is inherent in the 
definition of "executive capacity." The Petitioner states that the Beneficiary directs ~'a major 
function of the organization," specifically "developing relationships, entering consulting agreements, 
overseeing brand presence, and ensuring customer satisfaction." The Petitioner has not shown that 
existing in-house or outsourced workers would carry out the non-executive, day-to-day activities 
associated with these functions, as of the date of filing. If the Beneficiary has no lower-level stafi to 
whom he can delegate a particular function, then the Beneficiary would be performing that function 
rather than directing it. The record does not establish that the Beneficiary's duties associated with 
any of these "major functions" would be primarily executive in nature. 
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Matter~~ A-C-G-, Inc. 
The Director, in the denial notice, stated that the Petitioner had not addressed a request "to provide 
corroborating evidence . . . that the beneficiary has been insulated from the day-to-day non 
qualifying duties." On appeal, the Petitioner protests that the Director made no such request. We 
reviewed the request for evidence (RFE). While the Director did not use those actual words in the 
RFE, the Director did request additional evidence to show that the Beneficiary's position meets the 
definition of an executive capacity, which includes the requirement that the Beneficiary's duties are 
primarily those of an executive rather than lower-level operational or administrative tasks. If the 
Beneficiary is not to perform those lower-level tasks himself, then there must be others to perform 
them instead. 
On appeal, the Petitioner states that it relies on "an extensive support staff' at its foreign affiliate, but 
the Petitioner does not elaborate on this point or provide any evidence to corroborate or clarify the 
nature and extent of the work that the Petitioner has outsourced overseas. 
The Petitioner documents an office service agreement with a third-party provider of office space and 
clerical and services, and a marketing agreement with a company that solicits potential clients. 
These agreements address certain administrative and support functions but do not cover the core 
operational business tasks that are. the source of the Petitioner's income. The Petitioner is a 
consulting firm with no consultants on staff. In this context, it is significant that the Petitioner has 
told prospective clients that the Beneficiary himself actively "consults for our clients in both our 
practice areas." 
The incomplete and sometimes conflicting evidence of record is not sufficient to show that the 
Beneficiary will primarily perform in an executive capacity. 
B. Foreign Employment in an Executive Capacity 
The Director, in the denial notice, concluded that the Petitioner had npt established that the 
Beneficiary's position abroad qualified as an executive capacity, but the denial notice contained little 
discussion to explain or elaborate upon this finding. 
The Beneficiary serves as the foreign entity's managing director and has a subordinate staff 
comprised of 42 employees, including five department heads, each with their own subordinate staff. 
The Petitioner submitted payroll records to support the staffing levels depicted in the foreign entity's 
organizational chart. The Director did not explain why the evidence does not show that the 
Beneficiary oversaw layers of management which, in tum, controlled the foreign company's various 
operational and administrative functions. 
The Petitioner has submitted essentially the same job description for the Beneficiary's positions in 
the United States and India. The difference is that the company in India is sufficiently staffed to 
relieve the Beneficiary from having to perform the company's business functions. Accordingly, the 
record supports the Petitioner's claim that he performs primarily executive duties in his role as the 
foreign entity's managing director. 
Matter of A-C-G-, Inc. 
We withdraw the Director's finding that the Petitioner did not meet this eligibility requirement. 
III. TEMPORARY EMPLOYMENT 
Beyond the Director's decision, the Beneficiary's ownership of the petitioning entity and its foreign 
affiliate raises an additional issue. If a beneficiary is an owner or major stockholder of the company, 
the petition must be accompanied by evidence that the beneficiary's services are to be used for a 
temporary period and evidence that the beneficiary will be transferred to an assignment abroad upon 
the completion ofthe temporary services in the United States. 8 C.F.R. § 214.2(1)(3)(vii). 
The Petitioner acknowledges that the Beneficiary owns 85% of the foreign entity and 90% of the 
petitioning U.S. employer. Therefore, the above provision applies to this proceeding. The Petitioner 
has not established that it intends for the Beneficiary's employment to be temporary and that it will 
transfer the Beneficiary abroad after his temporary assignment in the United States. For this 
additional reason, the Petitioner has not established eligibility for the classification sought. 
IV. CONCLUSION 
The Petitioner has not established that it will employ the Beneficiary primarily in an executive 
capacity. The Petitioner has also not established that the Beneficiary will be transferred abroad upon 
completion of his temporary services in the United States. 
ORDER: The appeal is dismissed. 
Cite as Matter of A-C-G-, Inc., ID# 519705 (AAO Aug. 4, 2017) 
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