dismissed L-1A Case: Petroleum Industry

MATTER OF V-M-S- CORP. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: NOV. 23, 2018 
APPEAL OF CALIFORNIA SERVICE CENTER DECISION 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a purchasing agent for a_ foreign subsidiary that distributes equipment used in the 
petroleum industry, seeks to temporarily employ the Beneficiary as its general manager under the L-1 A 
nonimmigrant classification for intracompany transferees. Immigration and Nationality Act (the Act) 
section I 0l(a)(l5)(L), 8 U.S.C. § l 10l(a)(l 5)(L). The L-1 A classification allows a corporation or other 
legal entity (including its at1iliate 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 the Petitioner will employ the Beneficiary in the United States in a 
managerial or executive capacity. 
The matter is now before us on appeal. In its appeal, the Petitioner asserts that the Director erred by 
considering the petition under the requirements for a managerial capacity, rather than an executive 
capacity. The Petitioner also disputes the Director's finding that the Beneficiary's job description 
lacked necessary detail. 
Upon de novo review, we will dismiss the appeal. 
I. LEGAL FRAMEWORK 
To establish eligibility for the L-1 A nonimmigrant visa classification, a qualifying organization must 
have employed the beneficiary "in a capacity that is managerial, executive, or involv~s specialized 
knowledge," for one continuous year within three years preceding the beneficiary's application for 
admission into the United States. Section 10l(a)(l5)(L) of the Act. In addition, the beneficiary 
must seek to enter the United States temporarily to continue rendering his or her services to the same 
employer or a subsidiary or affiliate thereof in a managerial or executive capacity. 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). 
Matter of V-M-S- Corp. 
II. EMPLOYMENT IN A MANAGERIAL OR EXECUTIVE CAPACITY 
The Director denied the petition based on a finding that the Petitioner did not establish that it will 
employ the Beneficiary in a managerial or executive capacity. The Petitioner does not claim that it 
will employ the Beneficiary in a managerial capacity. Therefore, we restrict our analysis to whether 
the Petitioner will employ the Beneficiary 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 gener.al supervision or direction from 
higher-level executives, the board of directors, or stockholders of the organization. Section 
101(a)(44)(B) of the A~t. 
Based on the statutory definition of exe_cutive 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 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. 
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. 
Accordingly, we will discuss evidence regarding the Beneficiary's job duties along with evidence of 
the nature of the Petitioner's business and its staffing levels. 
A. Duties 
The Petitioner initially provided the following information about the Beneficiary's intended role: 
[The Beneficiary's] mandate would be to coordinate and manage strategies of the 
component companies, expanding distributorship arrangements where possible, and 
devising risk mitigation strategies. He will continue to exercise a wide degree of 
discretionary decision making in his new position .... 
2 
Malter of V-M-S- Corp. 
[The Beneficiary's] first responsibility will be to obtain information from all 
employees regarding the current procurement, distribution and payment 
arrangements. He will then explore means of improvement ... and assessing the 
need for additional staff to expedite procurement, movement and collections. He will 
work with the International Procurement Division of [the foreign affiliate], 
particularly with regard to Customs matters. He will then present his findings and 
recommendations to the (foreign entity's] Executive Council and implement 
approved changes. These activities will be for the most part sequential, and we 
cannot estimate the amount of time that wi II be devoted to each of them. 
The quoted passage explained the Beneficiary's basic responsibilities, but did not describe the 
specific tasks that he would perform in order to meet those responsibilities. 
In a request for evidence (RFE), the Director stated that the Petitioner had not sufficiently described 
the Beneficiary's intended duties in the United States. The Director asked the Petitioner to explain 
how the Beneficiary's intended position would meet the requirements of a managerial capacity. In 
response, the president of the petitioning entity stated: 
[W]e do not understand your request for evidence that the beneficiary will be 
employed in a managerfal position in the US: in our last letter we clearly indicated 
that "his primary function will be executive rather than managerial." We 
unfortunately used the title of General Manager, but we clearly described his function 
as an executive, with a mandate to restructure the component companies: i.e., direct 
the management of the supply chain component companies, establish the goals and 
policies of the reorganization, and exercise wide latitude in defining the 
reorganization subject only to final approval by the Executjve Council (of the Board). 
. . . I will continue to oversee day to day operations and relieve [the Beneficiary] of 
purely administrative responsibilities. 
The description of the Beneficiary's "mandate" in the RFE response largely repeats the language 
from the statutory definition of "executive capacity." Merely repeating the language of the statute or 
regulations does not satisfy the Petitioner's burden of proof. Fedin Bros. Co .. Ltd. v. Sava, 724 F. 
Supp. 1103, 1108 (E.D.N.Y. 1989), qffd, 905 F.2d 41 (2d. Cir. 1990); Avyr Assoc,\· .. Inc. v. 
Meissner, 1997 WL 188942 at *5 (S.D.N. Y.). 
The Director denied the petition, finding that the Petitioner did '1not provide sufficient information 
about how the Beneficiary manages, supervises, functions ... and makes decisions on the activities· 
[over] which he would have authority." 
On appeal, the Petitioner asserts that its "initial petition was never analyzed in the decision," or 
quoted apart from "a misleading extract from the introduction to the job description which was 
intended as nothing more than a statement of [the Beneficiary's] general mandate." The Petitioner 
then quotes four paragraphs from its initial statement, asserting that the statement "went to some 
3 
Matter of V-M-5,'-Co1p. 
length to explain exactly what his executive duties would be." Following the quotation, the 
Petitioner states: "we are at a loss to explain the conclusion that the 'beneficiary's job duties cannot 
be determined from the information submitted."' 
The first of the four quoted paragraphs concerned the multinational organization's "need for a 
strategic plan to assess the risk of doing business in Venezuela" in the face of volatile financial 
conditions. The second paragraph described the petitioning U.S. company and its role in the .larger 
organization. Neither of these paragraphs mentioned the Beneficiary's position or duties. 
The third and fourth quoted paragraphs included some information about the Beneficiary's intended 
role; excerpts appeared earlier in this decision. Those passages listed the Beneficiary's basic 
responsibilities, but did not describe the specific tasks that he would perform in order to meet those 
responsibilities. For example, the Petitioner stated that the Beneficiary "will ... explore means of 
improvement" and "work with the [foreign company's] International Procurement Division," but did 
not explain what this work would entail. Specifics are an important indication of whether a 
beneficiary's duties are primarily executive or managerial in nature. Fedin Bros. Co .. Ltd v. Sava, 
724 F. Supp. 8. 
The Petitioner asserts that the Director mistakenly considered the petition in light of the 
requirements for a managerial capacity, rather than an executive capacity, and that the Director 
"inexplicably excised" the Petitioner's reference to executive capacity. The RFE did focus on 
managerial rather than executive capacity, and the Petitioner raised an objection at that time. The 
Petitioner has not shown that the Director's pre-denial references to managerial capacity prejudiced 
the outcome of the petition. In the denial notice, the Director acknowledged and quoted the 
Petitioner's assertion that it sought to classify the Beneficiary "as an executive." 
The Petitioner's assertion that the Beneficiary will be in charge of meeting high-level company goals 
is not sufficient to establish that the Beneficiary would work in a primarily executive capacity. 
B. Staffing 
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 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." Id. 
4 
Maller of V-M-S- Corp. 
The Petitioner claimed six U.S. employees at the time of filing. An organizational chart showed the 
following structure: 
President 
I 
General Manager (the Beneficiary) 
Sales Manager 
Sales Representative 
Administration/Controller/ 
Account Manager 
Billing Billing 
Private Customers Government Customers 
The Petitioner asserted that it "exercises operating control over [ an affiliate in Cura9ao] through a 
contractual agreement (Exhibit '8')." A separate organizational chart listed four employees at the 
entity in Cura9ao: 
• Operation Manager 
• Finance Manager 
• Administration 
• Administrative Analyst 
Exhibit 8 is an "Invoicing and Administrative Services Agreement," indicating that the Petitioner 
provides the following services to the foreign company: 
• Issue purchase orders to suppliers and pay their invoices 
• Issue invoices to customers and collect payment 
• Arrange for transportation, insurance, and storage 
The agreement did not indicate that the Petitioner '·exercises operating control over" the other entity, 
or has any authority over the employees in Curai;:ao. Rather, the foreign company pays the Petitioner 
to perform certain administrative and logistics functions on its behalf. Clause 2 of the agreement 
specified that the Petitioner "has no power to bind CLIENT [i.e., the foreign company] without its 
express written consent." Clause 10 indicated that the document is "an agreement between 
independent contractors and does not create a contract of employment, agency or any dependent 
relationship of any kind." Clause 11 d reads: "This Agreement sets forth the entire agreement of the 
parties relative to SERVICES to be provided to CLIENT and no prior agreement or understanding, 
oral or written, between the parties shall be of any force or effect." Therefore, the agreement at 
Exhibit 8 does not support the Petitioner's claim that the Beneficiary supervises subordinates at the 
Curai;:ao company. 
5 
Mauer of V-M-S- Corp. 
The organizational chart indicates that the Beneficiary would have authority over two U.S. 
subordinates with managerial titles. These titles, however, do not inherently establish that the 
positions qualify as managerial. 
In the RFE, the Director requested more information about the Petitioner's employees, including a 
"summary of duties" for "all employees." The Petitioner did not address this request in its response. 
In denying the petition, the Director acknowledged the Petitioner's submission of an organizational 
chart, but found that the Petitioner did not provide job descriptions to show what the claimed 
subordinates actually do. The Director concluded that the Petitioner did not show that it "currently 
employs individuals that would _relieve the beneficiary from non-qualifying duties." 
On appeal, the Petitioner does not directly address this finding or submit evidence to address the 
Director's concerns regarding the company's staning. The Petitioner states, more generally, that 
'.'the evidence supporting the initial petition established that the companies have an organizational 
hierarchy that would support an executive position." The Petitioner, however, did not provide 
sufficient evidence about the subordinate work force, even after the Director specifically asked for 
that inform~tion in the RFE. It cannot suffice for the Petitioner to assert, without elaboration, that 
managers would work under the Beneficiary's authority. 
The Petitioner has not established the existence of a management structure at the U.S. company that 
the Beneficiary would direct. The Petitioner also has not shown what duties the Beneficiary's 
subordinates would perform to relieve the Beneficiary of responsibility for non-qualifying tasks. 
III. CONCLUSION 
The Petitioner did not establish that it will employ the Beneficiary in an executive capacity. 
ORDER: The appeal is dismissed. 
Cite as Maller of V-M-S- Corp., ID# 1700096 (AAO Nov. 23, 2018) 
6