dismissed L-1A Case: Medical Equipment

U.S. Citizenship 
and Immigration 
Services 
MATTER OF V-, INC. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: JUNE 28,2018 
APPEAL OF CALIFORNIA SERVICE CENTER DECISION 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, which intends to market medical laboratory equipment manufactured by its foreign 
parent company, seeks to temporarily employ the Beneficiary as its chief executive officer 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 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 Beneficiary has been employed abroad in a managerial or 
executive capacity; and (2) the Beneficiary will be employed in the United States in a managerial or 
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 ignoring factors such as offsite subordinates. 
Upon de novo review of the record, including materials submitted on appeal, we will dismiss the 
appeal. 
We conclude that the Petitioner has established that the Beneficiary was employed abroad in an 
executive capacity. The Petitioner has documented that the foreign entity has a management 
structure that would support an executive position, and sufficient subordinate employees to relieve 
the Beneficiary from primarily performing non-qualifying operational tasks. The Director found that 
the Petitioner had not provided job descriptions for the Beneficiary's immediate subordinates 
abroad, but these descriptions are in the record of proceedings. We withdraw the Director's decision 
on this ground. The denial stands, however, because the record does not show that the petitioning 
U.S. company could support a primarily executive position at the time of filing. 
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 
Matter of V-, Inc. 
admission into the United States. Section 101(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. !d. 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 Director found that the Petitioner did not establish that it will employ .the Beneficiary in a 
managerial or executive capacity. The Petitioner has consistently claimed that it seeks to employ the 
Beneficiary in an executive capacity. Therefore, we restrict our analysis to whether the Petitioner 
will employ the Beneficiary in an executive, rather than managerial, 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 claimed executive capacity of a given beneficiary, we will look 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 and indicate whether such duties are in a 
managerial or executive capacity. See 8 C.F.R. § 214.2(1)(3)(ii). Beyond the required description of 
the job duties, we examine 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. 
Based on the statutory definition of executive capacity, the Petitioner must first 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. 
Accordingly, we will discuss evidence regarding the Beneficiary's job duties along with evidence of 
the nature of the Petitioner's business and its stafting levels. 
A Duties 
The Petitioner submitted the following list of the Beneficiary's intended duties: 
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Matter of V-, Inc . 
• 
1. Creating, communicating and implementing the company's vision, mission, and 
overall direction. Developing the company's operational policies and business 
development strategies and plans for short-term and long-term objectives (15%) 
2. Oversee the company's marketing strategy (35%) 
• Decide based on the advice of managerial team, to increase, change, modify, 
or upgrade the products lines 
• Review and approve the plan of establishing the distribution network 
• Decide partners in marketing and sales 
• Supervise the performance of customer services 
• Review and approve marketing and public relations plans 
• Represent the company in the major marketing and public relations events 
3. Oversee operations and business activities to ensure results are consistent with the 
overall strategy and mission (30%) 
• Design and develop the organization's functional structure to implement the 
company's global development strategy. 
• Lead and motivate subordinates to advance employee engagement and 
develop a high performing managerial team 
• Meet regularly with the managerial team to review the performance of each 
operation 
• Build trust and relationships with key partners and stakeholders 
• Analyze business hurdles and provide solutions to ensure company survival 
and growth 
4. Direct the company's finance (I 0%) 
• Develop high-quality investing and expansion decisions to advance the 
business and increase profits 
• Review financial and non-financial reports to devise solutions or 
improvements 
5. Maintain awareness of the competitive landscape, opportunities for expansion, 
customers, market, and new industry developments and standards. Look for 
potential acquisitions, sales, or potential joint ventures to enhance shareholder 
value (10%) 
The above job description is largely identical to the one relating to his position abroad; the key 
differences were variations in some time per~entages, and some different sub-elements in the 
category regarding marketing strategy. The Petitioner did not explain how the Beneficiary could 
plausibly perform nearly the same duties for the two companies, when the size, structure, and 
activities of the U.S. company are different from ,those of the foreign parent company. 
In the denial notice, the Director found that the "description of the beneficiary's proposed position in 
the U.S. was insufficient to demonstrate what the beneficiary will do on a day-to-day basis." On 
appeal, the Petitioner maintains that the Beneficiary's "proposed duties are primarily in [an] 
executive capacity," but the Petitioner offers no supporting argument except to repeat the job 
description submitted earlier. 
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Matter of V-, Inc. 
The submitted job description is untenable in the context of the Petitioner's staffing at the time of 
filing. The Petitioner asserts on appeal that the Beneficiary would continue to have executive-level 
responsibilities at the foreign entity, an assertion we shall address in more detail below. 
A petitioner must establish that the position offered to a beneficiary meets applicable requirements at 
the time the petition was filed. See Matter of Michelin Tire Corp., 17 l&N Dec. 248, 249 (Reg'! 
Comm'r 1978); see also 8 C.F.R. § 103.2(b)(l), which requires a petitioner to meet eligibility 
requirements at the time of filing, and continuing through the adjudication of the petition. At the 
time of filing, the petitioning entity was at a very early stage of development; it is not evident that it 
had yet begun doing business (defined as the regular, systematic, and continuous provision of goods, 
services, or both). See 8 C.F.R. § 214.2(1)(1 )(ii)(H). Because the Petitioner declined to be treated as 
a new office, it had to be doing business and able to support an executive position at the time of 
filing. The Petitioner has not done so, and therefore has not met its burden of proof. 
B. Staffing 
The statutory definition of the term "executive: capacity" focuses on a person's elevated posttion 
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 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 stated that the company "will have four fundamental ·ti.mctions": manufacturing, 
sales, research and development, and administration. The Petitioner stated: "In the next few years, 
we expect to set up a manufacturing facility in North America," and that the company is "also 
developing several new products" to be introduced "in the next couple of years." These future 
circumstances did not apply at the time of filing. A petitioner must establish eligibility at the time of 
filing the petition. See 8 C.F.R. § 103.2(b)(l). We can only take future plans into account in the 
context of a petition for a "new oftice" that has been doing business for less than one year. See 
8 C.F.R. § 214.2(l)(1)(ii)(F). 1 
1 The Petitioner previously filed a new office petition on behalf of this Beneficiary, but that petition was denied. In the 
present proceeding, the Petitioner specified that it did not seek to be treated as a new office. 
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Matter of V-, Inc. 
The Petitioner stated that, in the near term, the· U.S. company "will focus on establishing its own 
distribution system" for products manufactured by the foreign parent company. The Petitioner stated 
that the company will mainly perform the following activities: 
• Establishing relationships with the regional distributors 
• Obtaining approval from the relevant authorities for marketing products to 
different regions and countries 
• Provide timely support to distributors and end users by responding to inquiries in 
connection with the products, problerr~s encountered and customer complaints 
• Study industry trends to develop future products 
• Promote [its brands] by leveraging the distribution network, professional 
associations, traditional and online marketing 
At the time of filing, the Petitioner had three employees in the United States: 
• Office Manager 
• Senior Quality Engineer 
• Application Scientist 
The Petitioner provided minimal information about the duties cif the above three employees. 
Regarding the office manager, the Petitioner stated: 
[S]he is responsible for coordinating the services. provided by offsite professional 
service providers including but not limited to CPA, legal counsel, recruiter, IT 
support, logistic service and etc. She is also responsible for coordinating the schedule 
of the company staffs, the event schedule and the coordination with [the J parent 
company. [The ot1ice manager] is the key personnel to ensure the [Petitioner's] 
smooth operation ... on a daily basis. 
The Petitioner did not identify any of the tasks performed by the senior quality engineer. The 
Petitioner stated that the senior quality engineer works with the foreign parent company and with 
third-partylaboratories "to conduct necessary test[s]" and to assure product quality. These vague 
assertions do not provide any meaningful information about the role the senior quality engineer plays 
in the process. Sample test results in the record are signed by a "Study Director" and a "Quality 
Reviewer," neither of whom appears to be the Petitioner's senior quality engineer. 
Although the Petitioner called one of its employees an "application scientist," the Petitioner stated 
that this employee "has been spending 50% of his time to support sales and 50% of [his] time 
engaging in R&D" (research and development), because the company had not yet hired a sales 
manager. The Petitioner provided no details about the employee's non-sales work except to state 
that "he is responsible for working with professional labs and institutes in both U.S. and China to 
develop and design new products." The Petitioner did not establish that, at th.e time of filing, the 
application scientist engaged in professional-level scientific activity. 
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Matter ofV-, Inc. 
The Petitioner documented agreements with various third-party service providers, indicating that the 
Beneficiary himself need not perform functions such as bookkeeping and product testing, but the 
Beneficiary does not have executive-level control over those contractors. 
In the denial notice, the Director noted that the Petitioner had only one employee (the office 
manager) during the second quarter of 2017. The Director questioned "how the Beneficiary would 
be relieved from performing non-qualifying tasks" at a "company with only one employee." The 
Petitioner filed the petition, however, early in the fourth quarter of 2017, by which time the 
Petitioner had hired two more employees as discussed above. Their absence several months before 
the filing date is not, itself, grounds for denial ofthe petition. 
Making a broader point, the Director found that the company lacked "a subordinate level of 
managerial employees for the Beneficiary to direct" at the time of filing. The Director properly 
found that the Petitioner's future hiring plans carinot establish eligibility at the time of tiling. 
On appeal, the Petitioner asserts that it "is a multi-national company" whose "US office will work 
together with [the J China office to deliver products to worldwide customers. Thus ... the Chief 
Executive Officer will supervise the departments and employees in more than one location." The 
Petitioner adds: "There is no legal requirement for subordinate employees to be on the petitioner('Js 
U.S. payroll." The Petitioner's organizational chart also included the foreign entity, consistent with 
the Petitioner's assertion that the Beneficiary would continue to control the foreign company while 
employed in the United States. 
We will consider a beneficiary's control over employees abroad under some circumstances. Matter 
of Z-A-, Inc., Adopted Decision 2016-02 (AAO Apr. 14, 2016), concerned a company with "staff 
members within the parent company's headquarters office in Japan [who] exclusively support the 
Beneficiary's work." Those foreign employees were effectively the Beneficiary's subordinates 
because they provided services to the petitioning U.S. company. The Petitioner has not shown that 
similar circumstances apply in the present case. The foreign company was already actively engaged 
in manufacturing before it had a U.S. subsidiary. The Petitioner has not shown that there is 
significant interaction between the U.S. and foreign entities beyond the Beneficiary's continued 
involvement as the head of both companies. The relationship between the two entities appears to be 
more akin to a supplier/seller arrangement than two components of an integrated whole. 
A beneficiary cannot qualify as an intracompany manager or executive, however, simply by being 
physically present in the United States while maintaining control over a business abroad. (The mere 
presence of an agent or office does not constitute, doing business. See 8 C.F.R. § 214.2(1)(1)(ii)(H).) 
As we noted above, the Petitioner has not documented business activity in the United States. A 
financial statement lists assets and liabilities, but not income, and the Petitioner appears to be 
drawing on startup capital from the foreign parent company. Continuing to run the foreign company 
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Matter of V-, Inc. 
from a token office in the United States would not qualify the Beneficiary for L-IA status (and any 
future growth of the company cannot establish eligibility at the time of filing). 
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 an 
intracompany manager or executive. See section 101(a)(44)(C) of the Act. However, it is 
appropriate 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. See, e.g., Family Inc., 469 F.3d 1313; Systronics Corp. v. INS, 153 F. 
Supp. 2d 7, 15 (D.D.C. 2001). 
Based on the deficiencies discussed above, the Petitioner has not established that it will employ the 
Beneficiary in an executive capacity in the United States. 
III. CONCLUSION 
The Petitioner established that the Beneficiary's past employment abroad qualities as an executive 
capacity, but has not met that threshold tor the Beneficiary's intended U.S. employment. 
ORDER: The appeal is dismissed. 
Cite as Matter ofV-, Inc., ID# 1352248 (AAO June 28, 2018) 
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