dismissed L-1A Case: Mattress Import

MATTER OF N-, LLC 
APPEAL OF VERMONT SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: SEPT. 14, 2016 
PETITION: FORM 1-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a mattress import company, seeks to temporarily employ the Beneficiary as its 
executive director under the L-1A 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-1A 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 an executive or 
managerial capacity. · 
The Director, Vermont Service Center, denied the pet1t10n. The Director concluded that the 
Petitioner had not established that the Beneficiary will be employed in a managerial or executive 
capacity for the U.S. entity. 
The matter is now before us on appeal. In its appeal, the Petitioner submits a statement and asserts 
that the Director erred when denying the petition. The Petitioner maintains that the record includes 
sufficient evidence to prove by a preponderance of the evidence that the Beneficiary is being 
transferred to the United States in an executive capacity and is eligible for the benefit sought. 
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 proposed beneficiary in a managerial or executive capacity, or in a specialized 
knowledge capacity, for one continuous year within three years preceding the beneficiary's 
application for admission into the United States. Section 101(a)(15)(L) ofthe 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, executive, or specialized 
knowledge capacity. ld. 
The regulation at 8 C.P.R. § 214.2(1)(3) states that an individual petition filed on Form I-129, 
Petition for a Nonimmigrant Worker, shall be accompanied by: 
Matter of N-, LLC 
(i) Evidence that the petitioner and the organization which employed or will 
employ the alien are qualifying organizations as defined in paragraph 
(l)(l)(ii)(G) ofthis section. 
(ii) Evidence that the alien will be employed in an executive, managerial, or 
specialized knowledge capacity, including a detailed description of the 
services to be performed. 
(iii) Evidence that the alien has at least one continuous year of full-time 
employment abroad with a qualifying organization within the three years 
preceding the filing of the petition. 
(iv) Evidence that the alien's prior year of employment abroad was in a position 
that was managerial, executive or involved specialized knowledge and that 
the alien's prior education, training, and employment qualifies him/her to 
perform the intended services in the United States; however, the work in the 
United States need not be the same work which the alien performed abroad. 
II. U.S. EMPLOYMENT IN A MANAGERIAL OR EXECUTIVE CAPACITY 
The Director denied the petition determining that the Petitioner had not established that it would 
employ the Beneficiary in a managerial or executive capacity. 
Section 101(a)(44)(A) ofthe Act, 8 U.S.C. § 1101(a)(44)(A), defines the term "managerial capacity" 
as "an assignment within an organization in which the employee primarily": 
. 
(i) manages the organization, or a department, subdivision, function, or 
component of the organization; 
(ii) supervises and controls the work of other supervisory, professional, or 
managerial employees, or manages an essential function within the 
organization, or a department or subdivision of the organization; 
(iii) if another employee or other employees are directly supervised, has the 
authority to hire and fire or recommend those as well as other personnel 
actions (such as promotion and leave authorization), or if no other employee 
is directly supervised, functions at a senior level within the organizational 
hierarchy or with respect to the function managed; and 
(iv) exercises discretion over the day-to-day operations of the act1v1ty or 
function for which the employee has authority. A first-line supervisor is not 
considered to be acting in a managerial capacity merely by virtue of the 
2 
(b)(6)
Matter of N-, LLC 
supervisor's supervisory duties unless the employees supervised are 
professional. 
Section 101(a)(44)(B) of the Act, 8 U.S.C. § 1101(a)(44)(B), defines the term "executive capacity" 
as "an assignment within an organization in which the employee primarily": 
(i) directs the management of the organization or a major comportent or 
function of the organization; 
(ii) establishes the goals and policies of the organization, component, or 
function; 
(iii) exercises wide latitude in discretionary decision-making; and 
(iv) receives only general supervision or direction from higher-level executives, 
the board of directors, or stockholders of the organization. 
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) ofthe Act. 
A. Evidence of Record 
The Petitioner was organized in the State of Florida in October 2013 and filed the Form 1-129 on 
September 21, 2015.1 On the Form 1-129, the Petitioner indicated that it currently has four 
employees in the United States, and 
a gross annual income of$1,129,824. The Petitioner claimed a 
qualifying subsidiary relationship with the Beneficiary's foreign employer, 
On the Form 1-129, the Petitioner described the Beneficiary's proposed duties in the United States as 
follows: 
Oversee the growth and ensure profitability of the U.S. subsidiary by hiring new 
employees and/or contractors, establishing an annual budget for the eompany and 
oversee expenditures, develop and manage a national expansion plan into new 
markets, oversee the timely and efficient distribution of products to all US and 
Canada customers and/or distributors, oversee the allocation of resources, training of 
U.S. distributors and monitoring of budget goals and sales progress. Oversee the 
1 The Petitioner submitted documentation to support the L-1 A petition, including evidence regarding the proffered 
position, its employees, and its business operations. While we may not discuss every document submitted, we have 
reviewed and considered each one. 
3 
Matter of N-, LLC 
import process by working with staff and/contractors making sure products meet the 
consumer safety commission standards of the United States. 
In a letter submitted in support of the petition, the Petitioner stated that it currently has three 
employees and four independent contractors. The Petitioner listed the Beneficiary's proposed duties 
and responsibilities as executive director as follows: 
• Develop and direct a national expansion plan into new markets; 
• Oversee the timely and efficient distribution of products to all U.S. and Canadian 
customers; 
• Oversee the allocation of resources, including equipment, employee provisions, 
and staff, to ensure the timely and cost effective completion of all services and/or 
distribution; 
• Establish the regional budget, set profitability and utilization goals, monitor 
progress towards said goals, and adjust goals as needed; 
• Establish an annual budget for the company, oversee expenditures, and monitor 
achievement of budget goals; and 
• Make sure the company is in compliance with all importing of manufactured 
product regulations, licenses etc. 
The Petitioner added that the Beneficiary will control a budget in excess of $1,000,000 and report 
directly to the foreign entity's Board of Directors. 
In a November 18, 2015, response to the Director's RFE, the Petitioner submitted a revised 
description of the Beneficiary's duties as executive director and allocated the Beneficiary's time to 
those duties as follows: 
• 5% of his time will be spent on human resources issues such as hiring and firing 
of staff, vendors, suppliers, attorneys, consultants etc. 
• 75% of his time will be spent interacting with others in meetings, phone calls 
and/or reading and responding to emails. The majority of these will comprise of 
meetings/calls with counsel re- United States regulations/compliance laws e.g. 
mattress import into the United States is fraught with complex rules/regulations, 
lawyers retained will work with [the Beneficiary] to make certain we comply with 
all the rules and regulations set forth by the Consumer Products Safety 
Commission (CPSC) and meet all the regulations set forth by the federal 
government and each individual state (each State ha[ s] their own rules and 
regulations which sometimes differ from the federal government). Negotiating 
and signing contracts for the overall effective operation of the company. 
• 10% of his time will be spent overseeing marketing efforts for expansion in 
liaison with the marketing staff in Brazil, until a marketing staff is put in place for 
the North American market. Monitoring sales levels and patterns to identify and 
4 
Matter of N-, LLC 
predict any potential problems. Representation of the company and brand at trade 
fairs and exhibitions. 
• 10% of his time will be spent on establishing a budget for the company, 
~ overseeing expenditures for profitability etc. 
The Petitioner explained further that a complete breakdown of the Beneficiary's proposed duties is 
difficult to provide as he will be the head of the company in the United States reporting only to the 
board of directors of the parent company in Brazil. The Petitioner noted that it needed an executive 
in the United States to make complex compliance decisions in a timely and continuous manner. The 
Petitioner noted specifically its dealings with the CPSC since February 2015 to make certain the 
imported mattresses meet U.S. standards. 
The Petitioner also included a letter from its counsel dated December 2, 2015. In the letter, the 
Petitioner's counsel noted that the film had been retained to assist with "the formation of [the 
Petitioner'sJ business and sales structure in the United States, as well as ensuring [the Petitioner's] 
compliance with state and federal laws relating to the mattress industry, preparation of legal 
documents, and coordination of efforts to comply with the standards and regulations of the 
Consumer Product Safety Commission." The Petitioner's counsel opined that "it is crucial for [the 
Petitioner] to have an executive in the United States in order to effectively and efficiently manage 
the day-to-day operations of the company, as well as to ensure its compliance with applicable law." 
The Petitioner also submitted its organizational chart showing the foreign entity's board of directors 
at the top of the chart, the Beneficiary in the position of executive director, employees in the 
positions of manager and sales assistant, independent contractors which included the Petitioner's 
attorneys, a translation service, an accounting firm, and a marketing consultant, and a department 
identified as "Vendors" under the Board's supervision. The chart identifies the Beneficiary in the 
tier above the employees, contractors, and vendors but does not show these individuals directly 
reporting to the Beneficiary. The Petitioner submitted position descriptions for the two individuals 
named on the organizational chart in the positions of manager and sales assistant. The Petitioner 
also submitted a retainer contract between the Petitioner and counsel. Finally, the Petitioner 
submitted evidence that it had initiated a recall of mattresses that did not comply with federal 
mattress flammability standards. 
On appeal, the Petitioner asserts that the Beneficiary's "transfer to the United States is to perform an 
essential and controlling function with respect to a complex business enterprise that requires 
significant' decision making." The Petitioner cites an unpublished decision in support of its claim 
that the Beneficiary may be a function manager or executive even if he is the sole employee when he 
utilizes outside independent contractors or where the business is complex. The Petitioner maintains 
that the Beneficiary will not be performing the day-to-day operations or tasks necessary to produce a 
product or provide a service. Rather, due to the complex nature of the importing business and the 
Beneficiary's level of authority in the United States, the Petitioner asserts he will be primarily 
performing executive tasks with employees and independent contractors available to perform the 
necessary functions of importing and selling the product in the United States. 
5 
Matter of N-, LLC 
B. Analysis 
Upon review of the petition and the evidence of record, we conclude that the Petitioner has not 
established that the Beneficiary will be employed in a managerial or executive capacity in the United 
States. 
When examining the managerial or executive capacity of the Beneficiary's position, we will look 
first to the Petitioner's description of the job duties. See 8 C.P.R. § 214.2(1)(3)(ii). 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 either a managerial or an executive capacity. !d. 
The definitions of managerial and executive capacity each have 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. USCJS, 
469 F.3d 1313, 1316 (9th Cir. 2006); Champion World, 940 F.2d 1533. 
As the Petitioner emphasized on appeal, it must prove by a preponderance of evidence that the 
Beneficiary is fully qualified for the benefit sought. Matter of Chawathe, 25 I&N Dec. 369, 376 
(AAO 201 0). In evaluating the evidence, eligibility is to be determined not by the quantity of 
evidence alone but by its quality. !d. 
The Petitioner here has submitted an overview of the Beneficiary's duties which essentially recited 
broadly-cast business objectives, rather than describing the actual daily duties of the position. In 
response to the Director's RFE, the Petitioner noted that almost 75 percent of the Beneficiary's time 
would be spent in meetings, on phone calls, and reading and responding to emails. The Petitioner 
added that the majority of the meetings, phone calls, and emails would involve the Petitioner's 
compliance with U.S. regulations. While we acknowledge that compliance· regulations may be 
complex, it is not clear what the Beneficiary will actually be doing during or as a result of the 
meetings, phone calls, and emails. The record does not include probative evidence that these tasks 
would be ongoing or would be primarily executive or managerial in nature. The Petitioner has not 
provided anx detail or explanation of the Beneficiary's proposed activities in the course of his daily 
routine. The actual duties themselves will reveal the true nature of the employment. 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). 
We note that also within this 75 percent of the Beneficiary's time, the Beneficiary will negotiate and 
sign contracts for the operation of the company. However, the Petitioner does not elaborate on the 
nature of the contracts and whether they are with vendors, marketers, distributors, employees, or 
independent contractors. The Petitioner indicates that the ~eneficiary will spend ten percent of his 
time overseeing marketing efforts in liaison with the marketing staff in Brazil, until a marketing staff 
is put in place for the North American market, and an additional ten percent of his time on budgetary 
matters. While the· marketing and budgetary duties would not be the Beneficiary's primary tasks, the 
6 
Matter of N-, LLC 
lack of personnel to carry out these duties, suggest that the Beneficiary will be performing rather 
than managing the performance of these duties.2 We note that on the Form I-129, the Petitioner 
referred to the Beneficiary's responsibility for training distributors. The Petitioner does not refer to 
this duty again and thus it is not clear if the Petitioner still considers this part of the Beneficiary's 
overall responsibility. 
Upon review of the Beneficiary's duties, we are unable to determine the nature and scope of his 
proposed activities on behalf of the Petitioner. There is insufficient information in the record to 
make an informed decision on the Beneficiary's role within the organization in relation to its internal 
personnel. Similarly, the record lacks probative evidence of the Beneficiary's responsibilities 
associated with outside personnel or businesses. Of further importance, the evidence of record does 
not establish that the Petitioner has the necessary staffing\ to sufficiently relieve the Beneficiary from 
performing primarily operational and administrative tasks to continue its operations. We note that 
the Petitioner must establish eligibility at the time of filing the nonimmigrant visa petition and must 
continue to be eligible for the benefit through adjudication. See 8 C.F.R. § 103.2(b)(l). A visa 
petition may not be approved at a future date after the Petitioner or Beneficiary becomes eligible 
under a new set of facts. See Matter of Michelin Tire Corp., 17 I&N Dec. 248, 249 (Reg'l Comm'r 
1978). Here, the Petitioner has not sufficiently detailed the Beneficiary's actual daily duties such 
that we may ascertain whether the Beneficiary will primarily perform executive or managerial duties 
rather than carry out the essential operational and administrative functions of the business, when the 
petitionwas filed. 
We also note that the fact that the Beneficiary will manage or direct a business does not necessarily 
establish eligibility for classification as an intracompany transferee in a managerial or executive 
capacity within the meaning of section 101(a)(44) of the Act. By statute, eligibility for this 
classification requires that the duties of a position be "primarily" of an executive or managerial 
nature. Sections 101 (A)( 44 )(A) and (B) of the Act. While 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, the position descriptions alone are insufficient to establish that his 
actual duties would be primarily managerial or executive in nature. 
Beyond the required description of the job duties, USCIS reviews the totality of the record when 
examining the claimed managerial or 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, 
2 We acknowledge that the Petitioner indicates that the Beneficiary will be working with and overseeing the foreign 
entity's marketing staff until a marketing staff is hired in the United States. However, the record does not include 
evidence of the interplay between the Petitioner's marketing of mattresses and the foreign entity's marketing of 
mattresses. The record is not sufficiently concrete to establish that the Beneficiary will be primarily managing or 
supervising the foreign entity's marketing staff while in the United States. More'over, while the Petitioner identifies a 
marketing consultant on its organizational chart, the record does not include evidence identifying this individual's duties 
or evidence that he has actually been employed. 
Matter of N-, LLC 
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 101(a)(44)(B) of the 
Act, 8 U.S.C. § 1101(a)(44)(B). 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 of the organization." !d. 
The Petitioner's organizational chart shows the employment of two individuals, a manager, and a 
sales assistant. As referenced above, the organizational chart does not clearly establish that these 
individuals report to the Beneficiary. Moreover, the record does not include probative evidence, 
such as state or federal quarterly wage or tax reports or payroll records, to establish that the 
Petitioner actually employed these individuals when the petition was filed. However, for. 
thoroughness, we have reviewed the Petitioner's description of duties for these individuals. 
We note that the manager communicates with supervisors and owners, resolves problems, and 
manages company emails, sales, financial/bank accounts and expenses, and monthly reports. It is 
not clear who the manager communicates with other than the owners as the record does not include 
any evidence that the Petitioner employs supervisors. Additionally, the description of duties for this 
individual notes that he gives advice and guidance and that he organizes meetings and events, among 
other duties. As this individual does not have any subordinates, it is not clear who he is advising or 
to whom he is offering advice. Similarly, the record does not detail the meetings and events he is 
orgamzmg. Based on the descriptions of duties and the Petitioner's organizational chart, this 
individual's actual role in the business is not defined and we cannot conclude that the position is 
managerial. 
Likewise, the duties of the sales assistant are broadly stated, indicating that he performs some 
reception duties, is involved in stock control and management, provides after sales service, maintains 
records, assists the manager, receives inventory, and processes transactions, refunds, and exchanges. 
This description suggests that this individual will be performing clerical and customer service tasks. 
It is not possible to conclude that this individual is a managerial employee. 
Upon review of the totality of the record, the Petitioner has not identified or documented a 
subordinate level of managerial employees for the Beneficiary to direct. We have reviewed the other 
positions and departments listed on the Petitioner's organizational chart but do not find sufficient 
8 
Matter of N-, LLC 
evidence in the record to conclude that these positions and departments include managerial positions 
for the Beneficiary to direct. Further, as discussed above, the Petitioner has not provided a detailed 
description of the Beneficiary's duties supporting its claim that the Beneficiary will primarily focus 
on the broad goals and policies of the organization rather than the day-to-day operations of the 
enterprise. The Petitioner has not provided probative evidence demonstrating the Beneficiary will 
perform tasks primarily in an executive capacity. 
The Petitioner also has not established that the Beneficiary will primarily perform in a managerial 
capacity for the Petitioner. The statutory definition of "managerial capacity" allows for both 
"personnel managers" and "function managers." See sections 1 Ol(a)( 44)(A)(i) and (ii) of the Act. 
Personnel managers are required to primarily supervise and control the work of other supervisory, 
professional, or managerial employees. The term "function manager" applies generally when a 
beneficiary does not supervise or control the work of a subordinate staff but instead is primarily 
responsible for managing an "essential function" within the organization. See section 
101(a)(44)(A)(ii) ofthe Act. 
The Petitioner does not claim that the Beneficiary will perform primarily as a personnel manager and 
we find that the record also does not support such a claim. The Petitioner does not identify the 
Beneficiary on its organizational chart or in its description of the Beneficiary's duties as primarily 
supervising subordinate employees. The Petitioner also has not sufficiently identified the outsourced 
individuals and teams the Beneficiary will work with in terms of their responsibilities in support of 
the Petitioner's operations. Although the Petitioner claims the Beneficiary will be involved with its 
attorneys who will assist in formulating its salesc structure and its compliance with regulatory 
standards, the record includes little information on the Beneficiary's actual tasks other than stating 
that he will participate in meetings. Rather, the record suggests at most that the Beneficiary will 
carry out its counsel's instructions or follow the advice of counsel regarding its sales structure and 
compliance requirements. We also find that while the record includes a contract between the 
Petitioner and its attorneys for services, the record does not include similar evidence that the 
Petitioner has contracted with other independent outsourced firms or businesses. Upon review of the 
totality of the record, there is insufficient documentary evidence to assess the Beneficiary's role as a 
personnel manager, and whether he will primarily supervise and control other supervisory, 
managerial, or professional employees. Accordingly, the record as constituted is insufficient to 
demonstrate that the Beneficiary's position is a position that primarily supervises and controls the 
work of supervisory, professional, or managerial employees. See sections 101(a)(44)(A)(ii)-(iii) of 
the Act; 8 C.F.R. §§ 214.2(l)(l)(ii)(B)(2)-(3). 
The term "essential function" is not defined by statute or regulation. If a petitioner claims that a 
beneficiary will manage an essential function, a petitioner must clearly describe the duties to be 
performed in managing the essential function, i.e., identify the function with specificity, articulate 
the essential nature of the function, and establish the proportion of a beneficiary's daily duties 
attributed to managing the essential function. See 8 C.F.R. § 214.2(1)(3)(ii). In addition, a 
petitioner's description of a beneficiary's daily duties must demonstrate that the beneficiary will 
manage the function rather than perform the duties related to the function. 
9 
Matter of N-, LLC 
Here, the Petitioner's general descriptions of the Beneficiary's duties do not include sufficient 
information regarding what the Beneficiary will actually do, such that we may conclude that the 
Beneficiary will manage a specific function. It appears that the Petitioner expects the Beneficiary to 
enter into employment to generally develop the Petitioner's business including working on the 
Petitioner's compliance with state and federal regulatory standards for mattresses. However, the 
lack of probative evidence regarding who will perform the routine duties of the Petitioner's mattress 
distribution operation including its compliance with federal and state regulatory standards 
undermines any claim that the Beneficiary will primarily manage an essential function. 
As referenced above, the Petitioner has not submitted probative evidence supporting its claim that it 
has three employees and four independent contractors who would carry out the routine operational 
and administrative functions of the business. Other than providing a broad overview of the duties of 
the manager and sales assistant and a retainer agreement for a law firm, it has not submitted 
probative evidence that it actually employs anyone. For example, while the Petitioner claims to use 
a marketing consultant, the record does not include probative evidence of this individual's role or 
responsibilities for the Petitioner. Nor does the record include a consulting agreement or evidence 
that this individual performed work for the Petitioner. While the record includes some information 
that the Petitioner works with an accounting firm to file its taxes, the record does not identify what 
other tasks, if any, the accounting firm performs. Similarly, the Petitioner identifies a translating 
service on its organizational chart and the record includes evidence that documents were translated. 
The Petitioner, however, does not explain the role of the translating service, state whether it is an 
ongoing role, what purpose it serves, or whether the service was used only for immigration filings. 
With regard to the Petitioner's retention of a law firm, we again find that the Petitioner has not 
specified the Beneficiary's role as it involves interaction with the law firm, such that we may 
conclude that the law firm is performil;tg the essential functions of the Petitioner's business 
operations. Upon review of the totality of the record, the Petitioner has not submitted probative 
evidence of its employees or independent contractors who will carry out the daily administrative, 
operational, budgetary, and human resource functions of the business. 
We note that a company's size alone, without taking into account the reasonable needs of the 
organization, may not be the determining factor in denying a visa petition for classification as a 
multinational manager or executive. See section 101(a)(44)(C) of the Act, 8 U.S.C. 
§ 1101(a)(44)(C). However, it is appropriate for USCIS to consider the size of the petitioning 
company in conjunction with other relevant factors, such as the absence of employees who would 
perform the non-managerial or non-executive operations of the company, or a "shell company" that 
does not conduct business in a regular and continuous manner. See e.g. Family Inc. v. USCIS 469 
F.3d 1313 (9th Cir. 2006); Systronics Corp. v. INS, 153 F. Supp. 2d 7, 15 (D.D.C. 2001). The size of 
a company may be especially relevant when USCIS notes discrepancies in the record and does not 
believe that the facts asserted are true. See Systronics, 153 F. Supp. 2d at 15. 
The Petitioner refers to an unpublished decision in which we determined that the beneficiary met the 
requirements of serving in a managerial and executive capacity for L-1 classification even though he 
was the sole employee. However, the Petitioner has furnished no evidence to establish that the facts 
10 
Matter of N-, LLC 
of the instant petition are analogous to those in the unpublished decision. Moreover, while 8 C.F.R. 
§ 103 .3( c) provides that our precedent decisions are binding on all USC IS employees in the 
administration of the Act, unpublished decisions are not similarly binding. 
Upon close review of the record, including the descriptions of duties, the nature of the Petitioner's 
business, the lack of documentary evidence substantiating its staffing levels, and the lack of 
information regarding the Beneficiary's actual role in the business, the record does not establish that 
the Petitioner's organization is sufficiently developed to support a managerial or executive position 
as defined in the statute. The Petitioner has not developed the Beneficiary's position so that we may 
understand the Beneficiary's actual duties and role in the business. The Petitioner has not 
adequately described and attributed the duties required to support its day-to-day operational needs 
while it is in the process of establish{ng its sales structure, organizing its distribution network, and 
establishing its compliance procedures. The record does not include probative evidence identifying 
who the Beneficiary will rely on to accomplish the non-executive and non-managerial duties in the 
Petitioner's continued operations. Accordingly, we cannot conclude that the Beneficiary would 
primarily perform managerial duties. 
Based on the deficiencies discussed above, the Petitioner has not established that the Beneficiary 
will be employed in a managerial or executive capacity. 
III. CONCLUSION 
The petition will be denied and the appeal dismissed for the above reason. In visa petition 
proceedings, the burden of proving eligibility for the benefit sought remains with the petitioner. 
Section 291 of the Act, 8 U.S.C. § 1361; Matter ofOtiende, 26 I&N 127, 128 (BIA 2013). Here, 
that burden has not been met. 
ORDER: The appeal is dismissed. 
Cite as Matter ofN-, LLC, ID# 18339 (AAO Sept. 14, 2016) 
11