dismissed L-1A Case: Recycled Electronics

U.S. Citizenship 
and Immigration 
Services 
MATTER OF DA-S- INC. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DA TE: AUG. 30, 2018 
APPEAL OF CALIFORNIA SERVICE CENTER DECISION 
PETITION: FORM 1-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a seller of recycled electronics products, seeks to continue the Beneficiary's 
employment as its "CEO" under the L-1 A nonimmigrant classification for intracompany transferees. 1 
See Immigration and Nationality Act (the Act) section 101(a)(15)(L), 8 U.S.C. § 1101(a)(l5)(L). The 
L-1 A 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 or" the California Service Center denied the petition concluding that the Petitioner did 
not establish, as required, that the Beneficiary would be employed in a managerial or executive 
capacity under an extended petition. . -
On appeal, the Petitioner contends that the Director did not consider the Beneficiary's complete 
position description, asserting that the majority of his time will be spent managing "a major 
component of the [P]etitioner's business." 
Upon de nova review, we find that the Petitioner has not overcome the basis for denial. Therefore, 
· we will dismiss the appeal. 
I. LEGAL FRAMEWORK 
To establish eligibility for the L-lA nonimmigrant visa classification, a qualifying organization must 
have employed the beneficiary in a managerial or executive capacity for one continuous year within 
three years preceding the beneficiary's application for admission into the United States. 8 C.F.R. 
1 The Petitioner previously filed a "new office" petition on the Beneficiary's behalf which was approved for the period 
September 22, 2016, until September 21, 2017. A "new.office" is an organization that has been doing business in the 
United States through a parent, branch, affiliate, or subsidiary for less than one year. 8 C.F.R. § 214.2(l}(l)(ii}(F). The 
regulation at 8 C.F:R. § 214.2(1){3}(v}(C) allows a "new office" operation one year within the date of approval of the 
petition to support an executive or managerial position. Although the Petitioner responded "Yes" when asked if the 
Beneficiary was coming to the United States to open a new office, the fact that a new office petition was previously 
approved for the above-specified period indicates that the "new office" regulations do not apply in the present matter. 
Matter of DA-S- Inc. 
§ 214.2(1)(3)(v)(B). In addition, the beneficiary must seek to enter the United States temporarily to 
cot?-tinue rendering his or her services to the same employer or a subsidiary or affiliate thereof in a 
managerial or executive capacity. Id. 
A petitioner seeking to extend an L-1 A petition that involved a new office must submit a statement 
of the beneficiary's duties during the previous year and under the extended petition; a statement 
describing the staffing of the new operation and evidence of the numbers and types of positions held; 
evidence of its financial status; evidence that it has been doing business for the previous year; and 
evidence that it maintains a qualifying relationship with the beneficiary's foreign employer. 
8 C.F.R. § 214.2(1)(14)(ii). 
II. MANAGERIAL OR EXECUTIVE CAPACITY IN THE UNITED STATES 
The Petitioner originally claimed that the Beneficiary would be employed in an executive capacity . 
. However, on appeal the Petitioner claims that the Beneficiary will be employed as a function 
manager. We will address each claim in the discussion below. 
A. Executive Capacity 
First, we will address the Petitioner's original claim that the Beneficiary will be employed in an 
executive capacity under the extended petition. 
"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). Beyond the requi~ed 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, its staffing levels, and its organizational structure. 
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Matter of DA-S- Inc. 
1. 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 10l(a)(44)(C) of the Act. 
The Petitioner claimed five employees, including the Beneficiary, at the time this petition was filed 
in September 2017. In support of the petition, the Petitioner provided a "staffing report" describing 
its organizational hierarchy at the time of filing. It claimed that the Beneficiary delegates some 
authority to two subordinate managers - ·an international trading manager and a media marketing 
manager - which allows him to focus on the "overall operating strategy" and matters concerning the 
Petitioner's finances and budgets. In a staffing chart the Petitioner indicated that both of the 
Beneficiary's subordinates have bachelor's degrees, although the record contains no evidence of 
those degrees. The Petitioner stated that the marketing and sales departments communicate daily to 
ensure efficiency and smooth operation. · 
The Petitioner provided an organizational chart depicting the Beneficiary at the top-most position 
within the organizatiqn followed by two subordinate managers, each of whom is depicted as 
overseeing one subordinate employee. Specifically, the chart shows that the international trading 
manager oversees a sales representative and the media marketing m~ager oversees a marketing 
representative. 
The Petitioner submitted employment contracts and provided broad job descriptions for the four 
employees named on the organizational chart. The Petitioner stated that the international trading 
manager recruits, trains, and manages employees, plans and coordinates sales leads, monitors 
implementatiop of strategic business plans, develops performance measures, attends events to 
generate sales leads, manages budgets, and maintains financial and statistical records. Although the 
Petitioner stated that the international trading manager would also be responsible for ensuring 
"timely progress on discovering and development [sic] real estate investment projects," it did not 
explain the relevance of real estate development within the scope of the Petitioner's electronics 
recycling business .. The Petitioner provided a job description for the_ media marketing manager that 
is similar to that of the international trading manager in scope and content. The Petitioner stated that 
the media marketing manager will recruit, train, and manage marketing employees and promote the 
business, monitor implementation of marketing plans, develop performance measures and support 
the sales team, and develop promotional materials for the Petitioner's electronics recycling business. 
Despite the Petitioner's references to marketing and sales teams, its organizational chart shows only 
one subordinate for each department manager to oversee; therefore, use of the word "team" is 
somewhat misleading as it implies a greater department staffing structure than the one depicted in 
the Petitioner's organizational chart. 
In a request for evidence (RFE) the Director instructed the Petitioner to provide quarterly wage 
reports to establish its organization's staffing. The Petitioner replied, submitting quarterly tax 
returns and wage reports for the second, third, and fourth quarters of 2017. The wage report for the 
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Maller of DA-S- Inc. 
20 l 7 third quarter shows that five employees, including the Beneficiary and the four other 
individuals the Petitioner listed in its organizational chart, were paid wages in the month during 
which this petition was filed. However, the Petitioner's payroll register and employee pay stubs that 
more precisely correspond to the date of filing - September 19, 2017 - indicate that the Petitioner 
employed only the Beneficiary, the two department managers, and who was not named in 
the organizational chart and for whom no employee contract was provided; and 
identified in the organizational chart as the sales representative and the marketing representative, 
respectively, were not named in the relevant payroll register, nor was a pay stub submitted for either 
employee for the two-week time period that commenced on September 18, 2017, the day prior to this 
petition's filing date. 
We further note that the wage report for the 2017 fourth quarter corresponds with the above-
described payroll register in that it also includes who was not named in the Petitioner's 
organizational chart, but excludes and who were named in that chart. 
The Petitioner also pr:ovided its "Summary of Current Employees," which indicates that 
replaced as the sales representative. Although the "Summary of Current Employees" 
indicates that the Petitioner continued to claim as its marketing representative, it did not 
provide a pay stub for this individual or include him/her in the relevant payroll register to establish 
his/her employment with the Petitioner at the time of filing. Rather, the evidence shows that this 
individual left the company just prior to the date of filing, and returned at the end of December 2017. 
In the denial decision, the Director determined that the Petitioner did not have adequate staffing to 
relieve the Beneficiary from having to ·primarily perform non-supervisory job duties. 
On appeal, the Petitioner provided an organizational chart and current employee list that restate the 
Petitioner's prior claims. It did not, however, provide supporting evidence to establish that it 
employed as its marketing representative at the time of filing. The Petitioner must support 
its assertions with relevant, probative, and credible evidence . See Matter of Chawathe, 25 I&N Dec. 
369,376 (AAO 2010). In light of the lack of evidence showing that the Petitioner had a marketing 
representative at the time of filing, it appears that - the marketing department 's manager -
comprised the entire staff of the media and marketing department and thus had no subordinate 
personnel to oversee. 
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 10l(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 they 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 
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Maf/er of DA-S- Inc. 
employee. A beneficiary must also exercise "wide latitude in discretionary decision making" and 
receive only "general supervision or direction from higher level executives, the bQard of directors, or 
stockholders of the organization." Id. 
In the present matter, despite the managerial job titles assigned to two of the Petitioner's employees, 
we find that the Petitioner does not have an adequate managerial tier that can serve as the medium 
for the Beneficiary to "direct the management" of the organization. As previously noted, the 
marketing department appears to have been comprised of a single employee who had no one to 
manage at the time this petition was filed. Although the circumstances were not identical in the 
international trading department, which had a manager overseeing a single sales representative, the 
Petitioner's organizational complexity as a whole was not sufficient to support the Beneficiary in an 
executive position where he would primarily focus on establishing the organization's goals and 
policies. 
In addition, the Petitioner did not establish that it has employees to handle the logistics aspects of its 
operation, such as receiving and shipping the recycled electronics, issuing invoices, and collecting 
the funds that are owed for the sold merchandise. Without adequate supporting evidence, we cannot 
conclude that the Beneficiary would be relieved from having to participate in these non-executive 
tasks. An employee who "primarily" performs the tasks necessary to produce a product or to 
provide services is not considered to be "primarily" employed in a managerial or executive capacity. 
See, e.g., sections 101(a)(44)(A) and (B) of the Act (requiring that one "primarily" perform the 
enumerated managerial or executive duties); Matter of Church Scientology Int'/, 19 I&N Dec. 593, 
604 (Comm'r 1988). 
On appeal, the Petitioner correctly observes that we must take into account the reasonable needs of 
the organization and that a company's size alone may not be the only factor in denying a visa 
petition for· classification as a multinational manager or executive. See section 101 ( a)( 44 )(C) of the 
Act. However, it is appropriate for the Director 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. 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). 
Furthermore, the regulations that apply to an extension of a "'new office" petition require that we 
examine the organizational structure and staffing levels of the Petitioner. See 8 C.F .R. 
§ 214.2(1)(14)(ii)(D). The regulation at 8 C.F.R. § 214.2(1)(3)(v)(C) only allows the "new office" 
operation one year within the date of approval of the petition to support an executive or managerial 
position. If a business does not have the necessary staffing after one year to sufficiently relieve the 
beneficiary from performing operational and administrative tasks, the petitioner is ineligible for an 
extension. The evidence must substantiate that the duties of a beneficiary and his or her 
subordinates correspond to their placement in an organization's structural hierarchy; artificial tiers of 
subordinate employees and inflated job titles are not· probative and will not establish that an 
organization is sufficiently complex to support an executive position. As previously discussed, the 
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Maller of DA-S- Inc. 
Petitioner has not established that it has attained a level of organizational complexity that would 
require and support a primarily executive position. 
2. Duties 
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). The Petitioner must also 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. 
· Accordingly, in order to establish eligibility, the Petitioner must provide a job description that 
clearly describes 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). 
In its supporting cover letter, the Petitioner provided a general job description stating that65% of the 
Beneficiary's time would be allocated to overseeing budgets and "all other managers and staff," . . 
directing financial goals, promoting economic development and overseeing cash management, 
encouraging and overseeing investment of funds, "execut[ing] capital raising strategies to support 
expansion," and "deal[ing] with mergers and acquisitions." The Petitioner did not list any actual job 
duties that would explain how the Beneficiary would carry out his oversight responsibilities with 
regard to budgets and finances, nor did it define actual duties that would promote economic growth 
and investment. The Petitioner also did not establish the relevance of "mergers and acquisitions" or 
explain how these activities relate to a business that deals with buying and selling recycled 
electronics, nor did it identify any "capital raising strategies." 
The Petitioner stated that the Beneficiary would allocate 5% of his time to "[m]iscellaneous related 
duties," none of which were specifically identified, and the remaining 30% of his time to hiring and 
training employees, developing and implementing strategies, motivating and evaluating staff, setting 
personnel policies· and encouraging professional development, providing "strategic leadership," and 
collaborating with the board of directors to develop policies. The Petitioner did not establish that 
training and evaluating the performance of non-professional subordinates qualify as executive-level 
tasks. Also, _the Petitioner did not identify specific tasks that would explain how the Beneficiary 
encourages professional development and provides "strategic leadership." 
In whole, the Petitioner provided a vague job description that does not convey a meaningful 
understanding of the Beneficiary's actual job duties within the size and scope of a four-person 
electronics recycling business. Reciting the 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. 8 C.F.R. § 214.2(l)(I4)(ii)(C). 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), ajf'd, 905 F.2d 41 (2d. Cir. 1990). 
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Mauer of DA-S- Inc. 
On appeal, the Petitioner does not pursue the executive capacity claim that it made originally when 
filing the petition. Instead, the Petitioner argues that the Director did not consider the majority of the 
Beneficiary's job duties, which it claims "are related directly to managing a major component of the 
Petitioner's business." The Petitioner does not, however, provide any detail or explanation of the 
Beneficiary's executive activities in the course of their daily routine to establish that the Beneficiary 
would be employed in an executive capacity. 
8. Function Manager 
As noted above, on appeal the Petitioner alters its claim, asserting that the Beneficiary should be 
deemed a function manager because he "manages a huge function" that represents "a serious aspect 
of the Petitioner's business." 
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 10l(a)(44)(A)(ii) of the Act. If a petitioner claims that a 
beneficiary will manage an essential function, it must clearly describe the duties to be performed in 
managing the essential function. In addition, the petitioner must demonstrate that "(l) the function 
is a clearly defined activity; (2) the function is •essential,' i.e., core to the organization; (3) the 
beneficiary will primarily manage, as opposed to perform, the function; ( 4) the beneficiary will act 
at a senior level within the organizational hierarchy or with respect to the function managed; and (5) 
the beneficiary will exercise discretion over the function's day-to-day operations." Matter of G­
Jnc., Adopted De_cision 2017-05 (AAO Nov. 8, 2017). 
In this matter, despite raising the function manager claim on appeal, the Petitioner has not articulated 
a specific function that the Beneficiary will manage, nor has it adequately described the 
Beneficiary's job duties or provided evidence that he would perform primarily managerial duties or 
primarily manage an essential function. Although a function manager is not required to directly 
supervise and manage subordinate managerial, supervisory, or professional employees, the Petitioner 
must still establish that it is able to relieve the Beneficiary from significant involvement in the day­
to-day activities of the function he is claimed to manage. 
In light of the evidentiary deficiencies discussed above, the Petitioner has not established that the 
Beneficiary would manage an essential function. 
III. QUALIFYING RELATIONSHIP 
In addition, although not addressed in the Director's decision, we find that the Petitioner has not 
provided sufficient reliable evidence to establish that it has a qualifying relationship with the 
Beneficiary's foreign employer. 
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Matter of DA-S- Jnc. 
To establish · a "qualifying relationship" under the Act and the regulations, a petitioner must show 
that the beneficiary's foreign employer and the proposed U.S. employer are the same employer (i.e., 
one entity with "branch" offices), or related as a "parent and subsidiary" or as "affiliates." See 
generally section l0l(a)(l5)(L) of the Act; 8 C.F.R. § 214.2(1). The Petitioner must support its 
assertions with relevant, probative, and credible evidence. See Matter of Chawathe, 25 I&N Dec. 
369,376 (AAO 2010). 
In the present matter, the Petitioner claims to be a subsidiary of the Beneficiary's foreign employer. 
However, the evidence that the Petitioner provided to support this claim is inconsistent. Although 
the Petitioner provided a stock transfer ledger indicating that it transferred I 00 shares to the foreign 
entity, the corresponding stock certificate for the transfer indicates that the Petitioner issued 
I 0,000,000 shares, thereby indicating that the Petitioner issued 100,000 times more shares than the 
number of shares indicated in the stock ledger. The record does not contain independent, objective 
evidence to resolve this documentary inconsistency concerning the Petitioner's ownership. Matter 
<~( Ho, 19 I&N Dec. 582, 591-92 (BIA 1988). As such, we cannot conclude that the Petitioner has a 
qualifying relationship with the foreign entity, as claimed. 
' 
IV. FOREIGN EMPLOYMENT 
Further, when asked about the Beneficiary's employment abroad in the petition form, the Petitioner 
stated that the Beneficiary has worked for its claimed parent entity, 
at __________ 0 ___ _ __ ----, since June 2013. However, U.S. Department of State records show that when 
· the Beneficiary applied for a nonimmigrant visa in July 2015, he identified at 
as his "present" employer at that time. While we are not making an adverse 
determination based on the information obtained from the U.S. Department of State, the Petitioner 
may need to address the Beneficiary's statements regarding his employment abroad in any future 
petition filed by the Petitioner on his behalf. 
V. CONCLUSION 
For the reasons discussed above, we find that the Petitioner has not established that the Beneficiary 
will be employed in the United States in a managerial or executive capacity under an extended 
petition or that the Petitioner has a qualitying relationship with the Beneficiary's foreign employer. 
The appeal will be dismissed for these reasons. 
ORDER: The appeal is dismissed. 
Cite as Matter of DA- S- lnc.;ID# 1576307 (AAO Aug. 30, 2018) 
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