dismissed L-1A Case: Retail

U.S. Citizenship 
and Immigration 
Services 
MATTER OF S-S- LLC 
APPEAL OF VERMONT SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: JULY 18,2017 
PETITION: FORM 1-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a gas station and convenience store, seeks to temporarily employ the Beneficiary as its 
president/chief executive officer under the L-lA nonimmigrant classification for intracompany 
transferees. See Immigration and Nationality Act (the Act) section 10l(a)(15)(L), 8 U.S.C. 
§ 110l(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 Vermont Service Center Director denied the petition, concluding that the Petitioner had not 
established that the Beneficiary: (1) would be employed in a managerial or executive capacity for 
the U.S. entity; and (2) had been employed as a manager or executive with a qualifying organization 
for one year in the three years preceding the filing of the petition. 
On appeal, the Petitioner asserts that the evidence establishes that the Beneficiary's duties for the 
U.S. entity "are clearly 'Executive or Managerial' in nature" and that he worked in an executive 
position for the foreign company at least one year in the last three years prior to coming to the 
United States. 
Upon de novo review, we will dismiss the appeal. 
I. LEGAL FRAMEWORK 
To establish eligibility for the L-1 nonimmigrant visa classification, a qualifying organization must 
have employed the beneficiary in a managerial or executive capacity, or in a specialized knowledge 
capacity, for one continuous year within three years preceding the beneficiary's application for 
admission into the United States. 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, executive, or specialized knowledge capacity. Section 101(a)(15)(L) of the 
Act. 
An individual petition filed on Form 1-129, Petition for a Nonimmigrant Worker, must include 
evidence that the petitioner will employ the beneficiary in an executive or managerial capacity, or in 
Matter of S-S- LLC 
a position requiring specialized knowledge, including a detailed description of the services to be 
performed. 8 C.F.R. § 214.2(1)(3)(ii). 
II. U.S. EMPLOYMENT IN A MANAGERIAL OR EXECUTIVE CAPACITY 
The Petitioner was established in 2013 and claims it was created to establish a chain of retail stores 
which would engage in fuel distribution and other retail operations. When the petition was filed in 
April 2016, the Petitioner notes that it had already invested in a property. The record includes a 
partial copy of the Petitioner's lease of a property for the operation of a gas station and convenience 
store. On the Form I-129, the Petitioner states that it has eight employees. In response to the 
Director's request for evidence (RFE), the Petitioner claims to employ 13 individuals. 
The Petitioner asserts that the Beneficiary will perform executive or managerial duties, but does not 
identify whether the Beneficiary's duties are primarily managerial or primarily executive in nature. 
We note that the Petitioner must clearly describe the duties to be performed by the Beneficiary and 
indicate whether such duties are either in an executive or managerial capacity. The Petitioner must 
demonstrate that the Beneficiary's responsibilities will meet the requirements of one or the other 
capacity. The Petitioner has not done so here. 
A. Definitions of Executive and Managerial Capacity 
Section 101 (a)( 44 )(B) of the Act defines the term "executive capacity" as "an assignment within an 
organization in which the employee primarily": 
(i) directs the management of the organization or a major component or function of 
the organization; 
(ii) ·establishes the goals and policies of the organization, component, or function; 
(iii) exercises wide latitude in discretionary decision-making; and 
(iv) receives only general supervision or direction from higher-level executives, the 
board of directors, or stockholders of the organization. 
Section 101(a)(44)(A) of the Act defines the term "managerial capacity" as "an assignment within an 
organization in which the employee primarily": 
(i) manages the organization, or a department, subdivision, function, or component 
of the organization; 
(ii) 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; 
2 
Matter ~~ S-S- LLC 
(iii) if another employee or other employees are directly supervised, has the 
authority to hire and fire or recommend those as well as other personnel actions 
(such as promotion and leave authorization), or if no other employee is directly 
supervised, functions at a senior level within the organizational hierarchy or 
with respect to the function managed; and 
(iv) exercises discretion over, the day-to-day operations of the activity or function for 
which the employee has authority. 
Further, "[a] first-line supervisor is not considered to be acting in a m/nagerial capacity merely by 
virtue of the supervisor's supervisory duties unless the employees supervised are professional." !d. 
B. Duties 
When examining the executive or managerial capacity of a beneficiary, we will look first to a 
petitioner's description of the job duties. See 8 C.F.R. § 214.2(1)(3)(ii). The definitions of executive 
and managerial capacity have two parts. First, the Petitioner must .show that the Beneficiary will 
perform certain high-level responsibilities. Champion World, Inc. v. INS, 940 F.2d 1533 (Table), 
1991 WL 1444 70 (9th Cir. July 30, 1991 ). 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, e.g., Family Inc. v. USCJS, 469 F.3d 
1313, 1316 (9th Cir. 2006); Champion World, 940 F.2d at 1533. 
In a letter submitted in support of the petition, the Petitioner asserted that the Beneficiary as its 
president and chief executive officer would "supervise[] other professional and managerial 
employees, establish goals and policies for the U.S. investment, and exercise wide latitude in 
discretionary decision-making under the direction of ... the Parent Company." The Petitioner listed 
the Beneficiary's responsibilities as: 
• Serving as the key U.S. contact for the shareholders and directors of the parent 
company; 
• Planning and developing the U.S. investment; 
• Developing, organizing and establishing operations pertaining to the purchase, 
sale and marketing of merchandise for sale in the U.S. market; 
• Identifying, recruiting and building a management team and staff with 
background and experience in the U.S. retail market; 
• Overseeing managers who in tum supervise subordinate employees in running 
day-to-day operations; 
• Executing or recommending personnel actions and establishing a management 
team to run daily operations; 
• Negotiating and supervising the drafting of purchase agreements; 
• Ensuring the marketing of products to consumers according to the parent 
company's guidelines; 
3 
Matter of S-S- LLC 
• Overseeing legal and financial due diligence processes and resolving any related 
issues; 
• Supervising all financial aspects ofthe company; 
• Developing organizational policies and objectives; 
• Developing trade and consumer market strategies based on guidelines formulated 
by the parent company; 
• Negotiating prices and sales terms and formulating pricing policies and 
advertising techniques; and 
• Developing and implementing plans to ensure the company's profitable operation. 
The Petitioner added that the Beneficiary would spend: 25 percent of his time on 
management/operational decisions and conducting due diligence for acquisitions of retail locations; 
30 percent of his time on contract negotiations and developing trade and marketing strategies; 30 
percent of his time on expansion decisions, incurring expenses, and resolving financial related 
issues; and 15 percent of his time on organizational development and putting the management team 
into place. In response to the Director's RFE, the Petitioner indicated that the Beneficiary would: 
hire, fire, and lead the senior management team; hire and train other managers and employees; and 
be responsible for planning, expansion, banking, budgeting, and marketing, as well as increasing 
sales ofthe company. 
The duties as described are insufficiently detailed to determine whether the Beneficiary is primarily 
a managerial or executive employee. See sections 101(a)(44)(A) and (B) of the Act. The 
descriptions provided are broadly-stated so that it is not possible to ascertain what proportion of the 
Beneficiary's duties would be managerial or executive functions and what proportion would be 
non-qualifying. For example, planning and developing the U.S. investment, developing, organizing, 
and establishing operations pertaining to the purchase, sale, and marketing of merchandise, 
supervising the company's financials, developing organizational policies and objectives, and 
recruiting and puilding a management team and staff and recommending personnel actions, include 
elements that may be managerial, executive, or may involve non-qualifying duties. Specifics are 
clearly an important indication of whether a beneficiary's duties are primarily executive or 
managerial in nature, otherwise meeting the definitions would simply be a matter of reiterating the 
regulations. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1103, 1108 (E.D.N.Y. 1989), aff'd, 905 
F .2d 41 (2d. Cir. 1990). 
Without additional detailed information on the Beneficiary's proposed position, we cannot ascertain 
the Beneficiary's actual role within the U.S. company. For example, the Petitioner indicated that the 
Beneficiary would negotiate and supervise the drafting of purchase agreements, negotiate prices and 
sales terms, formulate pricing policies and advertising techniques, and ensure the marketing of 
products and develop trade and consumer market strategies based on the parent company's 
guidelines. However, the Petitioner does not detail the tasks involved in these duties as it relates to 
the Petitioner's gas station and convenience store 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. The Petitioner has not provided any detail or 
4 
• 
Matter of S-S- LLC 
explanation of the Beneficiary's act1v1t1es in the course of his daily routine. The actual duties 
themselves will reveal the true nature of the employment. !d. at 1108. 
Additionally, the fact that the Beneficiary manages or directs a business does not necessarily 
establish eligibility for classification as an intracompany transferee in a managerial or executive 
capacity within the meaning of section 101 (a)( 44) of the Act. By statute, eligibility for this 
classification requires that the duties of a position be "primarily" executive or managerial in nature. 
Sections 101(A)(44)(A) and (B) of the Act. While the Beneficiary may exercise discretion over the 
Petitioner's day-to-day operations and possess the requisite level of authority with respect to 
discretionary decision-making, the position descriptions alone are insufficient to establish that his 
actual duties would be primarily managerial or executive in nature. 
C. Staffing 
Beyond the required description of the job duties, we review the totality of the record when 
examining the claimed managerial or executive capacity of a beneficiary, including 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. 
In response to the Director's RFE, the Petitioner described its "current executive and professional 
staff' as including the Beneficiary in the position of President and Chief Executive Officer, the 
Petitioner's minority interest owner and manager as its vice president and general manager, and an 
individual in the position of sales/operations manager. The Petitioner provided brief, generic 
descriptions for the positions of general manager and sales/operations manager. The Petitioner's 
organizational chart, also submitted in response to the Director's RFE, depicts the Petitioner's 
minority interest owner and manager as in the same position, but shows the individual described as 
the sales/operations manager in the position of finance/accounting. The organizational chart also 
depicts two assistant managers reporting to the vice president/general manager and a retail 
supervisor reporting to one of the assistant managers and an inventory manager reporting to the other 
assistant manager. The organizational chart further depicts two cashiers/clerks, two cleaners, two 
deli managers/cooks, and one inventory assistant reporting to the retail supervisor or inventory 
manager. The Petitioner also provided brief, general position descriptions for the positions listed on 
the organizational chart. 
The Petitioner does not explain the inconsistency in the position for the individual in the 
sales/operations manager or finance/accounting position. The Petitioner also does not describe any 
of the positions in relation to the operation of its gas station/convenience store except in the most 
general way. The Petitioner does not include probative evidence establishing that it employed any of 
these individuals when the petition was filed. The record included copies of the Petitioner's IRS 
Forms 941, Employer's Quarterly Federal Tax Return, for the 2015 year showing the Petitioner 
employed two to six employees in 2015. In response to the Director's RFE, the Petitioner submitted 
5 
.
Matter of S-S- L~C 
an unsigned copy ofiRS Form 941 for the second quarter of 2016, the quarter in which' the petition 
was filed, which indicates that the Petitioner employed seven 
individuals in the quarter. The 
Petitioner does not identify the seven employees by name or position. 1 The lack of evidence 
identifying the Petitioner's seven employees and the positions they occupied in the petitioning 
organization in the quarter in which the petition was filed precludes a determination that the 
Petitioner has sufficient staff to relieve the Beneficiary from performing the operational tasks of the 
organization. 
As required by section 101(a)(44)(C) ofthe Act, if staffing levels are used as a factor in determining 
whether an individual is acting in a managerial or executive capacity, we must take into account the 
reasonable needs of the organization, in light of the overall purpose and stage of development of the 
organization. At the time of filing, the Petitioner was a gas station/convenience store that had been 
operating for over a year. The Petitioner claimed that it employed eight individuals on the Form 
I-129, but provided an IRS Form 941 showing it employed seven individuals. 
The Petitioner's organizational chart identifies five employees, excluding the Beneficiary, holding 
the following titles: vice president/operations manager; assistant manager (2); inventory manager; 
and retail supervisor. The Petitioner does not include information on the hours its gas 
station/convenience store operates and how it is staffed throughout its hours of operation. 
Accordingly, the record does not include sufficient probative evidence establishing that the 
Petitioner employs subordinate staff to perform the actual day-to-day, non-managerial, 
non-executive operations of the company. It does not appear that the reasonable needs of the 
petitioning company might plausibly be met by the services of the Beneficiary as president/chief 
executive officer, five upper tier employees, and only two individuals to perform the operational and 
administrative duties of the Petitioner's gas station/convenience store. The Petitioner has not 
established that the Beneficiary will be primarily employed in a managerial or executive capacity. 
See sections 101(a)(44)(A) and (B) of the Act. 
III. MANAGERIAL OR EXECUTIVE CAPACITY ABROAD 
The Petitioner states that a Ugandan company established in 2001, owns a majority (51 
percent) interest in the U.S. limited liability company. The record includes documentation showing 
that the sole member of the petitioning limited liability company transferred 51 0 of the outstanding 
1 The Petitioner also submitted an IRS Form 941 for the third quarter of 2016, which shows the Petitioner employed 
13 individuals for the quarter as well as the Louisiana wage report for the same quarter. The Louisiana wage report lists 
16 names, identifies 12 of the positions as "cashier," and the other 4 positions as store manager, assistant store manager, 
retail manager, and sales associate. The individual identified as the vice president/general manager on the organizational 
chart is identified as the store manager, the individual previously inconsistently described as sale/operations manager or 
finance/accounting is identified a~ the assistant store manager, the individual on the organizational chart in the position 
of assistant manager is identified as retail manager, and the individual on the organizational chart in the position of 
inventory manager is identified as sales associate. Although the third quarter IRS Form 941 and Louisiana wage report 
are not relevant to establishing eligibility when the petition was filed on April II, 2016, these documents raise concern 
regarding the validity of the Petitioner's organizational chart and position descriptions for its claimed employees. 
6 
.
Matter of S-S- LLC 
1000 shares to on April 6, 2016.2 The Petitioner describes the foreign entity as 
specializing in retail and wholesale distribution of technology solutions and IT equipment. 
confirms that it employed the Beneficiary from September 2013 to September 2015 as its 
general manager. According to the Form I-129, and U.S. Citizenship and Immigration Services' 
records, the Beneficiary entered the United States on October 9, 2015, on a, B2 nonimmigrant visa. 
The definitions of executive and managerial capacity cited above also apply to the Beneficiary's 
foreign position. 
A. Duties 
The Petitioner asserts that the Beneficiary was employed in an executive capacitl for the foreign 
entity and claims that the Beneficiary as general manager "managed from 10 to 20 employees and 
supervised different facets of the operation such as production, finance, marketing, and the like." 
The Petitioner added that the Beneficiary's duties in this role included the following (paraphrased 
and bullet points added for clarity): 
• Developing, implementing, and consistently applying business-related policies to 
optimize the quality of the organization and employees (30%); 
• Negotiating client contracts and promoting sales of products and services (15% ); 
• Recruiting, hiring, promoting, disciplining, and discharging of sales department 
personnel (15%); 
• Developing and implementing marketing strategies using current market 
information, competitive and economic conditions, and innovative programs 
(10%); 
• Developing pricing strategies and responding to internal and external customer 
inquiry (10%); and 
• Meeting with appropriate officials to propose transactions, negotiating 
confidentiality and service agreements, coordinating the due-diligence process 
with in-house counsel and outside auditors, and directing the preparation and 
completion of sale contracts and other related documents (20%). 
In response to the Director's RFE, the Petitioner submitted a letter from the foreign entity which 
repeated the above duties. The foreign entity also referenced the Beneficiary's qualifications to hold 
the position of president/chief executive officer with the Petitioner and his experience and work with 
managers who supervise the day-to-day production and quality control, distributorship, and sales of 
the company. The Petitioner then listed additional duties. However, these duties do not appear to 
2 We observe that the Petitioner's unsigned IRS Forms 941 show the previous 100 percent owner as continuing to be the 
Petitioner's sole member. 
3 On appeal, the Petitioner asserts that the Beneficiary's foreign position was a managerial position and that his duties 
satisfied the statutory definition of managerial capacity . The Petitioner does not offer any explanation regarding the new 
identification of the Beneficiary as a managerial employee rather than an individual employed in an executive capacity . 
However , the record is not supported with probative evidence , nor is the position description sufficiently detailed , to 
conclude that the Beneficiary's foreign position was managerial or executive. 
7 
Matter of S-S- LLC 
relate to the foreign entity as the list includes the Beneficiary's "work with various governinent 
agencies and officials to ensure that the petroleum products were delivered and manufactured 
safely." The foreign entity, however, provides IT services and equipment and is not involved in 
delivering and manufacturing petroleum products. 
The Beneficiary's job description for the foreign entity is comprised of vague statements that stress 
the Beneficiary's leadership position within the foreign organization without delineating his specific 
daily, tasks or explaining how the proposed position would meet the four-prong definition of 
' executive capacity or the four-prong definition of managerial capacity. For example, the foreign 
entity claims that the Beneficiary will develop, implement, and consistently apply business-related 
policies to optimize the quality of the organization and employees. However, the foreign entity does 
not describe the actual tasks that will engage the Beneficiary in carrying out this broadly-stated duty. 
Similarly, duties that involve meeting with officials, coordinating with counsel and auditors, and 
directing the preparation of sales contracts and other documents, are not sufficiently detailed to 
ascertain the Beneficiary's position within the foreign entity. Without details of the Beneficiary's 
duties as they relate specifically to the foreign entity and its operations, we cannot identify the 
Beneficiary's role within the foreign organization. 
Additionally, it is not clear what tasks will engage the Beneficiary in negotiating contracts and 
promoting sales of products and services and developing and implementing marketing and pricing 
strategies, and whether those tasks fall within the parameters of executive capacity as defined by the 
statute or comprise duties that are operational in nature. These duties, as described, are 
non-qualifying operational duties. 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). Similarly, recruiting, hiring, promoting, 
disciplining and firing sales department personnel appears to the duties of a first-line supervisor over 
non-professional employees. The record does not include' sufficient evidence to conclude otherwise. 
B. Staffing 
The record includes a copy of the foreign entity's organizational chart depicting the Beneficiary as 
the general manager overseeing an account manager, a marketing manager, and a technical manager. 
The chart further shows two employees reporting to the account manager, one employee reporting to 
the marketing manager, and two employees reporting to the technical manager. The chart does not 
include a sales department. The chart identifies nine employees including the Beneficiary. The 
record does not identity "20 to 30 employees" for the Beneficiary to manage. Moreover, it is 
unclear why the Beneficiary is required to spend 15 percent of his time recruiting, hiring, promoting, 
disciplining, and discharging sales department personnel, when the organizational chart does not 
identify this department. 
8 
.
Matter of S-S- LLC 
The record also lacks position descriptions for the Beneficiary' 's claimed subordinates and probative 
evidence of their employment. The record does not establish that the foreign organization employed 
a sufficient number of employees to perform the administrative, operational, sales, and technical 
duties and thereby relieve the Beneficiary from primarily performing the necessary duties of the 
organizat.ion to keep it running. The record does not establish that the Beneficiary's employment for 
the foreign entity was in an executive or managerial capacity. 
C. Beneficiary 's One-Year of Employment with a Qualifying Organization 
As noted above, the Petitioner must establish that a qualifying organization employed the 
Beneficiary for one continuous year within three years preceding the Beneficiary's application for 
admission into the United States. The Director noted that the Beneficiary stated on his B2 visa 
application, signed April 28,2015, that he worked for from September 2004 to May 2010, 
and that his current employer in April 2015 was a company in India.4 Accordingly, the Director 
questioned the Petitioner's claim that the Beneficiary was employed at the foreign entity in Uganda 
from September 2013 to September 2015. 
On appe~l, the Petitioner asserts that the Beneficiary owns the family business in India, but he is not 
employed there. The Petitioner adds that the Beneficiary, pursuant to a telework agreement with 
performed his duties as a general manager indirectly and remotely from his domicile in India. 
The Petitioner submits a copy of the telework agreement on appeal. The managing director of the 
Ugandan foreign entity, in response to the Director's RFE when discussing the Beneficiary's 
qualifications, referenced that the Beneficiary had "developed many executive and supervisory skills 
here in India as General Manager." The record also includes copies of the Beneficiary's Ugandan 
tax records listing his employment income in Uganda and stating that he . ~as a resident of Uganda 
from July 2011 to June 30,2015. 
The record contains inconsistent and confusing information regarding the Beneficiary's domicile and 
his employment with the Ugandan qualifying organization. The record does not include sufficient 
consistent and clarifying evidence to overcome the Director's decision that the Petitioner had not 
established that a qualifying organization employed the Beneficiary for one continuous year within 
the applicable three-year time period. 
IV. CONCLUSION 
The appeal will be dismissed because the Petitioner has not established that the Beneficiary will 
perform in an executive or managerial capacity for the Petitioner and has not established that the 
Beneficiary performed duties' in an executive or managerial capacity for the foreign entity for one 
continuous year in the three years preceding his application for admission into the United States 
4 The record shows that the Beneficiary entered the United States on October 9, 20 15. 
9 
Matter of S-S- LLC 
ORDER: The appeal is dismissed. 
Cite asMatter ofS-S- LLC, ID# 494570 (AAO July 18, 2017) 
10