dismissed L-1A Case: Marketing Technology

U.S. Citizenship 
and Immigration 
Services 
In Re: 12464473 
Appeal of California Service Center Decision 
Form 1-129, Petition for L-lA Manager or Executive 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : FEB. 9, 2021 
The Petitioner, a marketing technology company, seeks to temporarily employ the Beneficiary in the 
United States as its CEO under the L-lA nonimmigrant classification for intracompany transferees . 
Immigration and Nationality Act (the Act) section 101(a)(15)(L), 8 U.S.C. § 1101(a)(15)(L). 
The Director of the California Service Center denied the petition, concluding the record did not 
establish that (1) the Beneficiary's employment abroad was in a managerial or executive capacity; and 
(2) the Beneficiary would be employed in a managerial or executive capacity in the United States. On 
appeal, the Petitioner contends it has provided sufficient evidence to overcome the Director's 
concerns . 
In these proceedings, it is the Petitioner's burden to establish eligibility for the requested benefit. See 
Section 291 of the Act, 8 U.S .C. § 1361. Upon de nova review , we will dismiss the appeal because 
the Petitioner did not establish the Beneficiary's position in the U.S. is in a managerial or executive 
capacity. Since the identified basis for denial is dis positive of the Petitioner 's appeal, we decline to 
reach and hereby reserve the Petitioner's arguments regarding the whether the Beneficiary's position 
abroad was in a managerial or executive capacity. See INS v. Bagamasbad , 429 U.S. 24, 25 (1976) 
("courts and agencies are not required to make findings on issues the decision of which is unnecessary 
to the results they reach"); see also Matter ofL-A-C-, 26 I&N Dec . 516,526 n.7 (BIA 2015) (declining 
to reach alternative issues on appeal where an applicant is otherwise ineligible). 
I. LEGAL FRAMEWORK 
To establish eligibility for the L-lA 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 10l(a)(15)(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. Id. 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). 
II. U.S. EMPLOYMENT IN AN EXECUTIVE CAPACITY 
The sole issue we will address is whether the Petitioner established that the Beneficiary would be 
employed in a managerial or 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 101 (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, the 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 the Petitioner establishes that the offered position meets all elements set forth in the statutory 
definition, 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. 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 explained that it created a platform that "serves as a single global marketplace for 
advertising talent, providing a 'one-stop shop' for companies that want to provide culturally-relevant, 
localized, digital advertising to their customers in geographic locations around the world." The 
Beneficiary will oversee the business expansion of the U.S. operations and his focus will be on 
"expanding employee count, clients, and revenue in the U.S." The Petitioner provided the following 
duties to be performed by the Beneficiary as follows: 
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Planning and Strategy Leadership: 70% 
• With a focus on North America, including the U.S., evaluate social media landscape, 
and define innovative solutions based on the vision of where social media marketing is 
headed; develop high-quality business strategies and plans, ensuring their alignment 
with short-term and long-term objectives. 
• Research needs ofU.S. clients, and translate current and future client digital advertising 
needs into an overall integrated strategic plan for the company, with service offerings 
and technology objectives, goals and discrete action plans, and direct company 
employees to achieve strategic plan; oversee all operations and business activities to 
ensure desired results are produced, and are consistent with the overall strategy and 
m1ss10n. 
• Act as "face" of [the Petitioner], publicizing and promoting company and 
product/service offerings to public and potential customers. Represent [the Petitioner] 
at conferences, meetings, and similar events. Engage in media interviews, and 
endeavor to create positive publicity for the company. Use excellent communication 
skills to engage in communications with the media, public, and employees, and 
effectively communicate the vision for the company. 
• Apply strong commercial acumen, understanding of digital creative strategy, and 
knowledge of [the Petitioner's] client needs to ensure the optimization of digital 
creative ideation and production and outcomes. Apply understanding of creative digital 
marketing and the creative production process together with business skills and an 
understanding of the value of digital marketing to drive business strategies across 
different verticals. 
• Provide strategic business and creative oversight to ensure [the Petitioner] meets and 
exceeds client demands via the platform and service. Effectively guide senior 
executives and senior managers to ensure that the company is producing the best 
creative product, balancing providing solutions to clients' needs with marking strong 
business decisions for the company. 
• Facilitates inter-departmental communication. Create departments within [the 
Petitioner] in the U.S. and facilitate communications between these departments and 
ensure that they are working well together. Ensures that the company has strong 
communication between departments in place. 
• Build trust relationship with key partners and stakeholders, and act as the point of 
contact for important shareholders. 
• Review financial reports and makes decisions regarding resource allocation. Oversee 
the budgeting process for costs and provides oversight in cost and productivity analysis. 
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• Maintain deep market knowledge and industry knowledge; use knowledge to identify 
opportunities and risks for delivering the organization's services, including 
identification of competitor services, opportunities for innovation, and assessment of 
marketplace obstacles and technical hurdles to success. 
Staff Development/Management and Delivery and Implementation Oversight: 30% 
• Determines what positions are needed within the company to generate revenue growth. 
Develop and put into place hiring and training process, and oversee high-level Human 
Resources/Talent Acquisition managers to ensure that hiring and training of staff are 
successful. 
• Directly responsible for managing, leading, and developing senior managers and 
executives. Continually evaluate executives' and managers' organizational roles and 
structure to ensure the leadership team is staffed and positioned to accomplish company 
goals and objectives as they continue to evolve. 
• Ensure appropriate capabilities exist within the leadership team to support the 
requirements of the company as a whole. Lease and motivate subordinates to develop 
a high-performing team. 
• For the executives and senior managers that report directly to the CEO, [the 
Beneficiary] will continue to be responsible for recruiting/hiring, supervision, 
employee development, recognition, salary administration, and staff evaluations. He 
will develop the leadership team to ensure high skill levels and directs employee 
development planning initiatives. 
• Assigns large-scale organizational projects to executives and senior managerial staff 
and defines goals based on key business priorities (followed by periodic reviews). 
• Ensure that executives and senior managers are directing and controlling the product 
and services specialists in a manner that objectives are achieved, risks are managed 
appropriately, and the organization's resources are used fairly. 
The Petitioner has provided few details and little supporting evidence to support that the Beneficiary 
would likely be primarily engaged in executive-level tasks. Whether the Beneficiary is an executive 
employee turns on whether the Petitioner has sustained its burden of proving that their duties are 
"primarily" executive. See sections 10l(a)(44)(B) of the Act. Here, the Petitioner does not sufficiently 
document what proportion of the Beneficiary's duties would be executive functions and what 
proportion would be non-qualifying. The Petitioner lists the Beneficiary's duties as including several 
administrative or operational tasks. For this reason, we cannot determine whether the Beneficiary 
would primarily perform the duties of an executive under an approved petition. See IKEA US, Inc. v. 
US. Dept. of Justice, 48 F. Supp. 2d 22, 24 (D.D.C. 1999). 
The Petitioner submitted duty descriptions for the Beneficiary that do not credibly demonstrate that 
he would primarily perform executive tasks. The Beneficiary's duties include several general duties 
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that can be performed for any company such as develop high-quality business strategies and plans, 
ensuring their alignment with short-term and long-term objectives; oversee all operations and business 
activities to ensure desired results are produced, and are consistent with the overall strategy and 
mission; build trust relationship with key partners and stakeholders; and, provide strategic business 
and creative oversight to ensure [the Petitioner] meets and exceeds client demands via the platform 
and service. The Petitioner does not explain the business strategies and methodologies the Petitioner 
will develop, or the objectives and goals of the company, or the impact of the working relationships. 
Specifics are clearly an important indication of whether a beneficiary's duties are primarily executive 
or managerial 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), ajf'd, 905 F.2d 
41 (2d. Cir. 1990). 
In addition, several of the duties appear to be non-qualifying operational duties such as evaluate social 
media landscape and define innovative solutions based on the vision of where social media marketing 
is headed; research needs of U.S. clients; act as "face" of [the Petitioner], publicizing and promoting 
company and product/service offerings to public and potential customers; provide strategic business 
and creative oversight to ensure [the Petitioner] meets and exceeds client demands via the platform 
and service; create departments within [the Petitioner] in the U.S. and facilitate communications 
between these departments and ensure that they are working well together; and develop and put into 
place hiring and training process. Many of these duties involve the day to day operations of running 
a business such as research, marketing, client relations, customer service, and employee development 
and training. In addition, the Petitioner does not explain the role of the staff to determine if they will 
relieve the Beneficiary from performing the operational duties. Without more information, it appears 
that the Beneficiary will perform several operational duties and will not perform duties that are 
primarily executive in nature. 
Further, several of the job duties involve hiring employees, determining the positions needed in the 
company, developing and implementing a hiring and training process, and review employee 
performance. These tasks involve human resources operations and it does not appear that the 
Beneficiary will oversee a human resources department and thus, these duties are not primarily 
executive in nature. 
The prevalence of the non-qualifying duties throughout the Beneficiary's duty description indicates 
that it is more likely he would be directly engaged in these tasks alongside with the staff rather than 
primarily delegating these functions. 
Even though the Beneficiary holds a senior position within the organization, the fact that he will 
manage or direct a 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. 
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B. Staffing 
If staffing levels are used as a factor in determining whether an individual is acting in an executive 
capacity, we 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. 
As noted, the Petitioner claims the Beneficiary would act in an executive capacity in the United States. 
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 101(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 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 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. 
At the time of filing the instant petition, the Petitioner submitted a list of the U.S. employees the 
Beneficiary would supervise which included a customer success manager, a head of creative strategy, 
four client partners, and a creative operations manager. The Petitioner also explained that these 
positions did not supervise any subordinates. The Petitioner did not provide a detailed description of 
the duties to be performed by the subordinate staff and therefore it is not clear how the staff would 
relieve the Beneficiary from performing the day-to-day operational duties. In light of the other 
documentary evidence also reflecting that the Beneficiary was performing various other non­
qualifying operational tasks for the Petitioner, it is likely that he would have been engaged as a first 
line supervisor of the subordinates, rather than as an executive primarily performing higher-level tasks 
related to goals and policies. 
On appeal, the Petitioner also stated that the Beneficiary "still manages high-level managers and 
executives (both in Singapore and the U.S.)." However, the Petitioner has not presented sufficient 
evidence demonstrating how the Beneficiary will continue to manage the foreign managers and 
executives while working in the U.S. In addition, the Petitioner did not provide a description of the 
services these foreign positions will provide to the U.S. office, and whether they will relieve the 
Beneficiary from performing non-qualifying duties related to the provision of services. A petitioner's 
unsupported statements are of very limited weight and normally will be insufficient to carry its burden 
of proof, particularly when supporting documentary evidence would reasonably be available. The 
Petitioner must support its assertions with relevant, probative, and credible evidence. See Matter of 
Chawathe, 25 I&N Dec. 369, 376 (AAO 2010). 
For the foregoing reasons, the Petitioner has not established that the Beneficiary would act in an 
executive capacity in the United States. 
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III. CONCLUSION 
In visa petition proceedings, it is a petitioner's burden to establish eligibility for the immigration 
benefit sought. Section 291 of the Act, 8 U.S.C. § 1361. The Petitioner has not met that burden. 
ORDER: The appeal is dismissed. 
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