dismissed L-1A Case: Retail

U.S. Citizenship 
and Immigration 
Services 
MATTER OF 1-1-D-T-, INC. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: MAR. 26,2018 
APPEAL OF CALIFORNIA SERVICE CENTER DECISION 
PETITION: FORM 1-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a one-employee retailer of Nepali clothing and handicrafts, 1 seeks to continue the 
Beneficiary's employment as its chief executive officer under theL-IA nonimmigrant classification 
for intracompany transferees? See Immigration and Nationality Act (the Act) section I 0 i (a)(IS)(L), 
8 U.S.C. § IIOI(a)(IS)(L). The L-IA classification allows a corporation or other legal entity 
(including its afllliate 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 Petitioner did 
not establish, as required, that the Beneficiary would be employed in a managerial or executive 
capacity under the extended petition. 
On appeaL the Petitioner provides two statements disputing the Director's decision and contending 
that sufficient evidence has been provided to demonstrate the Beneficiary's managerial and 
executive decision-making authority. The Petitioner also points to newly hired employees and states 
that the Beneficiary's proposed position fits the criteria of a function manager and an executive 3 
Upon de novo review, we will dismiss the appeal. 
1 
The Petitioner acquired a lictitious business .name, which indicates that it is also operating as an eyebrow threading 
business: however. the record does not contain evidence to show that the Petitioner is providing eyebrow threading 
services. 
2 U.S. Citizenship and Immigration Services (USCIS) approved the Petitioner's previous '·new office" petition filed on 
the Beneficiary's behalf. 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). Although !he Petitioner 
checked the box on the instant petition indicating that it was again seeking treatment as a "new office,'' it expressly 
stated in its initial supporting cover letter that it started its U.S. operations more than one year before the filing of this 
petition. As such, the Petitioner is not a new office. 
~ In support of the appeal, the Petitioner submitted two statements; however, one of the statements is erroneously titled 
"Notice of Motion to Reopen and Reconsider." As the Petitioner filed an appeal, not a motion to reopen and reconsider, 
we will consider both submissions in issuing our decision with regard to the appeal. 
Maller of H-D- T-. Inc. 
I. LEGAL FRAMEWORK 
To establish eligibility for the L-1 A 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 beneticiary's application for admission into the United States. 8 C.F.R. 
§ 214.2(1)(3)(v)(B). 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 artiliate thereof in a 
managerial or executive capacity. !d. 
A petitioner seeking to extend an L-1 A petition that involved a new oftice 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. DEFINITIONS 
"Managerial capacity" means an assignment within an organization in which the employee primarily 
manages the organization, or a department, subdivision, ti.mction, or component of the organization; 
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; has authority over personnel actions or functions at a senior level within the 
organizational hierarchy or with respect to the function managed; and exercises discretion over the 
day-to-day operations of the activity or function for which the employee has authority. Section 
IOI(a)(44)(A) of the Act. 
"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 
IOI(a)(44)(B) ofthe Act. 
III. U.S. EMPLOYMENT IN A MANAGERIAL OR EXECUTIVE CAPACITY 
In this matter, the Petitioner claims that the Beneficiary's proposed position is both managerial and 
executive. The Director found that the Petitioner did not establish that the Beneficiary's proposed 
position qualifies as a position that is either in a managerial or an executive capacity. 
When examining the managerial or 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 
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Matter of H-D- T-. Inc . 
• managerial or executive capacity. See 8 C.F.R. § 214.2(1)(3)(ii). Beyond the required description of 
the job duties, USC IS examines 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 definitions of managerial and 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 staffing levels. 
A. Managerial Capacity 
I. Duties 
The Petitioner filed the petition claiming one employee and no gross or net income. Although an initial 
cover letter was provided, it did not include a description of the Beneficiary's proposed job duties. 
Instead, the Petitioner's initial supporting evidence included a business plan, dated April 2015, which 
contained a list of the Beneficiary's proposed job duties. As approximately 18 months had passed 
between the date on the business plan and the tiling of the instant petition, it is not clear whether the job 
description contained in the business plan was still applicable at the time of filing, when the Petitioner no 
longer qualified as a "new oflice." In any event, the job description indicated that the Beneficiary's 
duties would include the following: establishing guidelines for hiring, training, and evaluating 
employees; establishing and implementing policies, goals, and procedures; directing and coordinating 
sales and marketing activities and product distribution; reviewing business performance data and 
financial statements to reduce costs and improve business; find w1d negotiate prices to buy and sell 
merchandise; and report to the board of directors. 
In a request tor evidence (RFE), the Director determined that the submitted job description was 
insufficient because it did not describe the Beneficiary's daily job duties or state how and at what 
frequency he would perform those duties. 
In response, the Petitioner provided a statement in which it explained that it faced obstacles during 
its first year of operation and therefore relied exclusively on the Beneficiary to carry out all of the 
operational tasks of the organization. The Petitioner reiterated the original job description and stated 
that the Beneficiary "has made several executive and managerial decisions on behalf of the 
[Petitioner]." The Petitioner did not provide a more detailed job description or state how otien the 
Beneficiary would perform his assigned job duties. 
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Maller of H-D-T-. Inc. 
In the denial decision, the Director determined that the Petitioner provided a deficient job description 
that did not establish that the Beneficiary primarily oversees a supervisory, professional, or 
managerial staff or acting in the role of a function manager. The Director found that the Beneficiary 
would likely devote the primary portion of his time to non-managerial and non-executive job duties. 
In one of its supporting statements submitted on appeal, the Petitioner misquotes the Director's 
decision, claiming that the Director stated, "Moreover, the evidence submitted was found 
insufficient documentation to demonstrate that the [B]eneficiary exercises discretionary authority 
over key personnel matters and decisions .... " In fact, the Director stated the following: 
"Moreover, the submitted evidence is insufficient to show the [B]eneficiary has managed the 
organization, department subdivision, function, or component of the organization." Thus, while the 
Director ultimately concluded that the Beneficiary could not be deemed as either a manager or an 
executive, this adverse determination was not based on the Beneficiary's lack of discretionary 
authority, but rather the finding that the Beneficiary would primarily perfonn the Petitioner's daily 
operational tasks. 
We find that the Petitioner did not provide sufncient information about the actual job duties the 
Beneficiary would perform within the scope and operational phase of the retail business that existed 
at the time this petition was tiled. The Petitioner did not disclose the specific daily tasks associated 
with formulating guidelines for hiring and training employees, nor did the Petitioner identify any 
specific guidelines. The Petitioner also did not state what information the Beneficiary would 
contemplate in order to establish policies, goals, and procedures, nor did it disclose any policies or 
procedures that the Beneficiary has put in place, or state who, if not the Beneficiary was avai !able to 
carry out the organization's sales, marketing, and distribution activities at the time this petition was 
filed. The Petitioner also neglected to specify the underlying tasks involved in directing and 
coordinating the company's sales, marketing, and distribution activities. 
We further find that procuring merchandise or negotiating prices to purchase and sell such 
merchandise are not managerial- or executive-level tasks; thus, any time the Beneficiary would 
devote to these activities would be deemed as time spent performing operational duties that are 
outside the scope of what is deemed to be managerial or executive. As the Beneficiary was the 
Petitioner's only employee at the time of tiling, it is likely that the Beneficiary was allocating his 
time primarily to the performance of the organization's operational tasks in order to meet the 
immediate needs of the organization. While no beneficiary is required to devote 100% of his or her 
time to managerial- or executive-level tasks, the petitioner must establish that the non-qualifying 
tasks the beneficiary would perform are only incidental to the proposed position. 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 sections 
I 01 (a)( 44)(A) and (B) of the Act (requiring that one "primarily" perform the enumerated managerial 
or executive duties); see also Maller of Church Scientology Jnt'l, 19 I&N Dec. 593, 604 (Comm'r 
1988). 
4 
Malter of H-D-1:. Inc. 
We also question the claim that the Beneficiary would regularly report to a board of directors. The 
record shows that the Beneficiary is the sole owner of the parent entity and president of a board of 
directors that includes two other members - a secretary and vice president - whose position titles 
inqicate that they are subject to the will of the board's president. These circumstances lead us to 
question whether the Beneficiary is actually subordinate to a board of directors and whether he 
would actually have to report his actions to a board of which he is the presiding member. If USC!S 
finds reason to believe that an assertion stated in the petition is not true, USCIS may reject that 
assertion. See, e.g., Section 204(b) of the Act, 8 U.S.C. § 1 l54(b); Anetekhai v. INS, 876 F.2d 1218, 
1220 (5th Cir. 1989); Lu-Ann Bakery Shop. Inc. v. Nelson, 705 F. Supp. 7, 10 (D.D.C. 1988); 
Systronics Corp. v. INS. 153 F. Supp. 2d 7, 15 (D.D.C. 2001). 
On appeal, the Petitioner contends that the Beneficiary, in his capacity as the Petitioner's president 
and chief financial officer, "manages the utmost essential function" and has "general authority to 
determine the [Petitioner's] overall policy." We note that the Petitioner's reference to the 
Beneficiary as president and chief financial officer is inconsistent with the RFE response, where the 
Petitioner stated that the Beneficiary has been employed in the position of chief executive otlicer 
since it started its operations in December 2015. The Petitioner must resolve this incongruity in the 
record with independent, objective evidence pointing to where the truth lies. Matter of Ho, 19 I&N 
Dec. 582, 591-92 (BIA 1988). 
Further, 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 10I(a)(44)(A)(ii) of the Act. !fa 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 "(1) 
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 perjimn, 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." Malfer of 
G-Inc., Adopted Decision 2017-05 (AAO Nov. 8, 20! 7). 
Here, while the Petitioner broadly claims that the Beneficiary will manage "the utmost essential 
function" as a result of his top position within the organization, it has not identified the specific 
function the Beneficiary would manage or supported that claim with a detailed description of duties 
stating how he would manage that function. As noted earlier, a detailed job description is critical to 
an analysis of the Beneficiary's managerial employment. Reciting the Beneficiary's vague job 
responsibilities or broadly-cast business objectives is not sufficient. As Petitioner has not provided 
any detail or explanation of the Beneficiary's activities in the course of their daily routine, it has not 
adequately supported the claim that the Beneficiary would assume the role of either a function or a 
personnel manager. 
5 
• 
,\;faller of H-D-7~. Inc. 
2. Staffing 
If staffing levels are used as a factor in determining whether an individual is acting in a managerial 
or executive capacity, USC IS takes into account the reasonable needs of the organization, in light of 
the overall purpose and stage of development of the organization. See section IOI(a)(44)(C) of the 
Act. 
As indicated earlier, the statutory definition of "managerial capacity" allows for both "personnel 
managers" and "function managers." See section IOI(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. Contrary to the common understanding of the word "manager," the 
statute plainly states that a "first line supervisor is not considered to be acting in a managerial 
capacity merely by virtue of the supervisor's supervisory duties unless the employees supervised arc 
professional." Section IOI(a)(44)(A)(iv) of the Act. If a beneficiary directly supervises other 
employees, the beneficiary' must also have the authority to hire and lire those employees, or 
recommend those actions, and take other personnel actions. 8 C.F.R. § 214.2(l)(I)(ii)(I3)(3). 
In the petition, the Petitioner claimed the Beneficiary as its only employee, 4 and in response to the 
RFE, the Petitioner stated that it hired two employees to help the Beneflciary expand the business. It 
also provided an organizational chart and employment contracts showing the new hires. However, 
the Petitioner must establish that all eligibility requirements for the immigration benefit have been 
satisfied from the time of the filing and continuing through adjudication. 8 C.F.R. § 103.2(b)(l). 
Given that the employment contracts for a sales associate and a "distribution/office manager" show 
that both employees were hired several months after the petition was tiled, these contracts do not 
establish that at the time of filing the Petitioner had sufficient staffing to support the Beneficiary in a 
managerial position. The Petitioner has not explained how it planned to relieve the Beneficiary lrmn 
having to primarily perform its operational and administrative tasks ill the time of filing when the 
Beneficiary was its only employee. 
On appeal, the Petitioner asserts that the Director placed undue emphasis on its staffing levels and 
claims that it is "illogical" to conclude that the Beneficiary is not managing or directing the 
management of the organization. However, the Petitioner does not explain how the Beneficiary 
would primarily perform duties that are consistent with managing an essential function or overseeing 
a supervisory, professional, or managerial staff within an organization where the Beneficiary was the 
only employee available to carry out the duties that may otherwise be assigned to a subordinate start~ 
if such a staff had been present at the time of filing. 
Further, the Petitioner's contention that Congress contemplated unforeseen circumstances, such as 
the earthquake that the Petitioner mentions in its brief is unfounded. The Petitioner correctly 
observes that we must take into account the reasonable needs of the organization and that a 
4 The Petitioner provided a quarterly tax return that is consistent with its claim that it had one employee at the time or 
tiling. 
6 
Maller of H-D-7:. Inc. 
company's size alone may not be the only factor in determining whether the Beneficiary is or would 
be employed in a managerial or executive capacity. See section 101(a)(44)(C) of the Act. 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 company that does not conduct business in a regular and 
continuous manner. Family Inc. v. USC!S, 469 F.3d 1313 (9th Cir. 2006); Systronics Corp. v. INS. 
153 F. Supp. 2d 7, 15 (D.D.C. 2001). Here, the Director did consider these relevant !actors and 
properly questioned how the Petitioner would support the Beneficiary in a managerial or executive 
capacity when it had no subordinate personnel for the Beneficiary to manage or perform the 
underlying operational tasks of the organization. The Petitioner's reasonable needs do not excuse it 
from having to meet the fundamental statutory criteria, which in this instance calls for a beneficiary 
who can allocate his time to primarily managerial or executive job duties. 
As previously noted, only an employee who "primarily" carries out tasks of a managerial nature can 
be deemed as someone who is primarily employed in a managerial capacity. See. e.g, sections 
IOI(a)(44)(A) of the Act. Here, the Petitioner has not established that it is adequately staffed and 
could relieve the Bencticiary !rom having to primarily devote his time to the organization's 
operational and administrative functions at the time of tiling. 
B. Executive Capacity 
On appeal, the Petitioner reiterates the claim that the Beneficiary has made executive decisions. 
Aside from providing a job description that referred to the Beneficiary's policy-making role and 
discretionary authority, the Petitioner does not offer evidence to demonstrate the executive nature of 
the proposed position. 
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 beneliciary to direct and they must primarily fi.Kus 
on the broad goals and policies of the organization rather than the day-to-day operations of the 
enterprise. An individual will not be deemed an executive under the statute simply because they 
have an executive title or because they "direct" the enterprise as the owner or sole managerial 
employee. A beneficiary must also exercise "wide latitude in discretionary decision making" and 
receive only "general supervision or direction from higher level executives, the board of directors, or 
stockholders of the organization." !d. 
As we discuss in this decision, the Petitioner did not adequately describe the Beneficiary's proposed 
daily job duties or demonstrate that at the time of filing it had the organizational complexity that 
would elevate the Beneficiary to the level of an executive. Therefore, we find that the Petitioner has 
7 
Mauer ojH-D-T-. Inc. 
not provided suftlcient evidence to show that the Beneficiary would be employed in an executive 
capacity under an extended petition. 
IV. 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. The appeal will be dismissed for this reason. 
ORDER: The appeal is dismissed. 
Cite as Matter of H-D-T-. Inc, ID# I 008726 (AAO Mar. 26, 2018) 
8