dismissed L-1A Case: Retail

U.S. Citizenship 
and Immigration 
Services 
MATTER OF S-I-, LLC 
APPEAL OF VERMONT SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: MAR. 6, 2018 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, an operator of a gas station/convenience store, is looking to extend the temporary 
employment of the Beneficiary as the chief financial officer (CFO) of its organization under the L­
lA 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-IA 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 Vermont Service Center denied the petition concluding that the Petitioner did not 
establish, as required, that the Beneficiary would be employed in the United States in a managerial 
or executive capacity. 
On appeal, the Petitioner submits a brief contending that the denial was arbitrary, capricious, and an 
abuse of the Director's discretion. 
Upon de novo review, 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. 
§ 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 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 Petitioner claims that the Beneficiary's proposed employment under an extended petition will be 
comprised of primarily executive job duties. The Petitioner originally claimed that the Beneficiary 
would allocate 60% of his time to executive duties and 40% to managerial duties. It later altered this 
Matter ofS-1-, LLC 
claim, listing only executive duties to describe the Beneficiary's proposed position. Therefore, our 
analysis will address the Petitioner's current claim that the Beneficiary's proposed position would be 
in an executive capacity. 
The term "executive capacity" is defined as 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) ofthe Act 
When examining the 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, 
U.S. Citizenship and Immigration Services (USCIS) 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. 
If staffing levels are used as a factor in determining whether an individual is acting in an executive 
capacity, USCIS must take into account the reasonable needs of the organization, in light of the 
overall purpose and stage of development ofthe organization. See section 101(a)(44)(C) ofthe Act 
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 
Based on the 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 at 1533. 
In support of the petition, the Beneficiary, in his capacity as the Petitioner's CFO, provided a cover 
letter stating that he would allocate 60% of his time to executive duties. The letter included a job 
description, which assigned a percentage of time to each of the four prongs that comprise the 
definition of executive capacity, stating that the Beneficiary would be responsible for overseeing the 
Petitioner's finances, investments, and inventory, "[ d]irect[ing] managers and/or staff' with regard 
to these elements, and ensuring legal compliance and fiscal accountability. The Beneficiary stated 
that he would also develop and implement business strategies and make investment and business 
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Matter ofS-1-, LLC 
expansion decisions based on financial audits of the company's performance, provide "direction and 
leadership" and help promote "the vision and mission of the company," set investment and financial 
policies, and forge business relationships with business brokers and partner entities to expand the 
business with new business ventures and investments. The Beneficiary also discussed his 
managerial role, providing a similarly broad sense of his fiscal responsibility and discretionary 
authority that overlaps with the description of his executive role. 
In a request for evidence (RFE) the Director observed that the Beneficiary's job description 
referenced both managerial and executive job duties. The Director asked the Petitioner to clarify 
whether the proposed employment would be managerial or executive and to provide evidence 
demonstrating that the Beneficiary's job duties meet the four-prong criteria of either definition. 
In response, the Petitioner clarified its original claim, offering a job description to show that the 
Beneficiary would be employed in an executive capacity. The Petitioner reallocated the time 
distributions, focusing exclusively on the four prongs that comprise the definition of executive 
capacity. The Petitioner indicated that the Beneficiary would allocate 60% of his time to the first 
prong - directing the management of the organization - which would involve maintaining 
responsibility for the Petitioner's accounts and finances, gathering information to determine business 
expenses, analyzing past costs and revenues to assess prospects for business investments and 
opportunities, advising management on such business matters as resource allocation, and ensuring 
that the Petitioner employs "standard business practice" and complies with applicable laws. The 
Petitioner stated that 15% of the Beneficiary's time would be allocated to the second prong -
establishing goals and policies - which would involve assessing company performance to develop 
and implement strategies regarding the company's finances, budget, and investment opportunities 
and meeting with the board and CEO to assess business expansion opportunities based on quarterly 
financial audits; another 15% would be allocated to the third prong - exercising discretionary 
decision making - which would involve guiding the company's annual financial goals, preparing 
financial reports, developing an organizational and financial plan, and promoting the company's 
"vision and mission" through execution of strategic plans that help meet objectives; and the 
remaining 10% would be allocated to the fourth prong - receiving general supervision from the 
company's CEO. 
The Director determined that the Petitioner provided a deficient job description that conveyed 
limited information about the Beneficiary's position and did not establish that the Beneficiary would 
perform primarily executive job duties. 
We agree with the Director's finding, which properly points to the lack of a detailed job description. 
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)(3)(ii). In the present matter, the Petitioner's job description is vague and focuses 
broadly on the Beneficiary's level of discretionary authority without elaborating on the Beneficiary's 
actual daily tasks within the scope of the business circumstances that existed at the time the petition 
was filed. While the Petitioner made repeated references to business investments and business 
Matter of S-1-, LLC 
opportunities to establish its intent to expand its current business operation, there is little evidence to 
show that the Petitioner has made any business investments or embarked on business opportunities 
beyond purchasing and operating a gas station/convenience store. Despite describing itself as an 
investment company with the purpose of investing in and managing "a series of gas stations, 
apartment buildings, homes, and hotels," the record indicates that the Petitioner's only business 
interest in the United States is comprised of a single gas station/convenience store operation, which 
it purchased when it was a "new office," over four years prior to filing the instant petition.
1 
Given 
the lack of evidence showing that the Petitioner has expanded its operation beyond a rudimentary 
developmental phase, the Petitioner has not established that the Beneficiary has or would allocate his 
time to advising the Petitioner on business investments and opportunities or developing strategies 
that are consistent with these business goals. 
The Petitioner also broadly stated that the Beneficiary's duties would include ensuring that the 
Petitioner employs "standard business practice" and complies with applicable laws. However, it is 
unclear what actual tasks the Beneficiary would perform to meet these broad objectives. Likewise, 
the Petitioner claimed that the Beneficiary would exercise his discretionary authority by guiding the 
company's financial goals and preparing its organizational and financial plan. However, the 
Petitioner does not identify a specific financial plan that is consistent with its current business 
operation or state precisely what factors the Beneficiary would consider in devising an 
organizational and financial plan. Moreover, these responsibilities are not indicative of daily tasks; 
rather, they are more likely to be concerns that the Beneficiary would address intermittently on a 
monthly, quarterly, or even yearly basis and thus they do not adequately convey a meaningful 
understanding of the actual tasks the Beneficiary would perform in the routine operation of a two­
employee gas station/convenience store. The Petitioner also neglected to identify the company's 
"vision and mission," specify any strategic plans the Beneficiary would execute, or state what 
actions the Beneficiary would undertake to promote the company's "vision and mission." 
On appeal, the Petitioner contends that the Director did not properly review the previously submitted 
evidence, stating that the Director confused the Beneficiary's position title in his former position as 
the foreign entity's operations manager and his current position title with the U.S. entity. We find, 
however, that the Director correctly noted that the Petitioner did not consistently refer to the 
Beneficiary as chief financial officer when discussing his current U.S. position. Namely, RFE 
response Ex. 7 contains the Petitioner's organizational chart in which the Beneficiary's position title 
appears as "Operations Manager," rather than chief financial officer as claimed in other documents 
in the record. 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). 
Furthermore, while we acknowledge the Petitioner's plans for future business expansion, we note 
that 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. 
1 The tenn "new office" is defined as 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). 
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Matter of S-1-, LLC 
§ 103 .2(b )(1 ). Here, the Petitioner had been operational for over four years at the time of filing. 
Despite expressing its intent to expand beyond a single retail store, the record contains no evidence 
that the Petitioner has taken steps to execute this plan. Furthermore, the broad list of job duties used 
to describe the proposed position is not consistent with the Petitioner's current stage of development. 
If USC IS 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) ofthe Act, 8 U.S.C. § 1154(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). 
In the present matter, the Petitioner has provided a deficient job description that does not list the 
Beneficiary's actual daily tasks and is comprised of general job responsibilities that do not comport 
with the nature and scope of the Petitioner's business operation at the time of filing. 
B. Staffing 
In denying the petition, the Director observed that the Petitioner's staff consisted of two employees, 
including the Beneficiary, and found that this staffing composition would not be sufficient to relieve 
the Beneficiary from having to primarily perform the non-executive duties of the organization. 
On appeal, the Petitioner repeatedly states that the Beneficiary's job duties are executive and refers 
to unpublished decisions to support its claim. The Petitioner did not, however, support its assertions 
with relevant, probative, and credible evidence. See Matter of Chawathe, 25 I&N Dec. 369, 376 
(AAO 2010). Further, the Petitioner has not established that the facts of this petition are analogous 
to those in the unpublished decisions. While 8 C.F.R. § 103.3(c) provides that our precedent 
decisions are binding on USCIS, unpublished decisions are not similarly binding. 
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 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 
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." I d. 
As previously noted, the Petitioner operates a two-person retail business where one of its two 
employees is the Beneficiary. The Petitioner has not provided evidence to show how it can continue 
to effectively operate its business without the Beneficiary's direct involvement in its daily 
operational functions. We note that an employee who "primarily" performs the tasks necessary to 
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Matter of S-1-, LLC 
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) ofthe Act (requiring that 
one "primarily" perform the enumerated managerial or executive duties); Matter of Church 
Scientology Int 'I, 19 I&N Dec. 593, 604 (Comm'r 1988). Here, the Petitioner has not provided 
evidence to show that its staffing composition at the time of filing was sufficient to relieve the 
Beneficiary from having to carry out the daily routine tasks of a small retail operation and elevate 
him to an executive position. 
III. 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 an executive capacity under an extended petition. The 
appeal will be dismissed for this reason. 
ORDER: The appeal is dismissed. 
Cite as Matter (~fS-1-, LLC, ID# 1002515 (AAO Mar. 6, 2018)