dismissed L-1A Case: Retail

U.S. Citizenship 
and Immigration 
Services 
MATTER OF H-JcA-P-, INC. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: MAY 29,2018 
APPEAL OF CALIFORNIA SERVICE CENTER DECISION 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, currently operating as a dollar store retailer, seeks to continue the Beneficiary's 
employment as its chief executive officer under the L-IA 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-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 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 claims that the Beneficiary will be employed in an executive capacity and 
that he is supported by a staff of approximately 50 U.S. and foreign employees, who relieve the 
Beneficiary from having to primarily engage in the performance of daily operational and 
administrative tasks. 
Upon de novo review, we find that the Petitioner has not overcome the basis for the denial. 
Therefore, we will dismiss the appeal. 
I. LEGAL FRAMEWORK 
To establish eligibility for the L-1 A nonimmigrant visa classification, a qualifying organization must 
have employed the beneficiary in a 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 
1 
The Petitioner previously filed a "new office" petition on the Beneficiary's behalf. That petition was approved for the 
period November I, 2016, until October 31, 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(1)(1)(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. 
Mal/er of H-1-A-P-, Inc. 
continue rendering his or her services to the same employer or a subsidiary or affiliate thereof in a 
managerial or executive capacity. !d. 
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. U.S. EMPLOYMENT IN AN EXECUTIVE CAPACITY 
The Petitioner claims that the Beneficiary will be employed in an executive capacity. As the 
Petitioner does not claim that the Beneficiary will be employed in a managerial capacity, we will 
only address the Petitioner's claim that the Beneficiary will be employed in an executive capacity. 
"Executive capacity" means an assignment within an organization in which the employee primarily 
directs the management of the organization or a major component or function of the organization; 
establishes the goals and policies of the organization, component, or function; exercises wide 
latitude in discretionary decision-making; and receives only general supervision or direction tram 
higher-level executives, the board of directors, or stockholders of the organization. Section 
101(a)(44)(B) of the Act. 
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. 
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). Beyond the required description of the job duties, we examine the company's 
organizational structure, the duties of the Beneficiary's subordinate employees, the presence of other 
employees to relieve the Beneficiary from performing· operational duties, the nature of the business, 
and any other factors that will contribute to understanding the 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 H-1-A-P-, Inc. 
A. Statiing 
If staffing levels are used as a factor in determining whether an individual is acting in a managerial 
capacity, we take into account the reasonable needs of the organization, in light of its overall purpose and 
stage of development. See section l01(a)(44)(C) of the Act. 
The petition was filed on October 25, 2017 claiming two employees. The Petitioner provided 
supporting evidence, including an organizational chart that depicted the Beneficiary at the top-most 
tier of the organization overseeing two employees - an "administration" position and a sales person 
- in the "Unilever Distribution Marketing" department. The chart also depicted an "Auto Sales" 
department showing that a staff is "to be determined." The Petitioner also provided payroll 
summaries showing its compensation of two employees during the first week of October 2017. 
In a request for evidence (RFE), the Director observed that the Petitioner's current staff of two 
employees varied greatly from the original hiring projections that were submitted in support of the 
prior L-1A petition. The Director questioned whether the Petitioner's current organizational 
hierarchy would be sufficient to elevate the Beneficiary's position beyond that of a first-line 
supervisor and instructed the Petitioner to provide, in part, an organizational chart, quarterly wage 
reports for the four quarters preceding the RFE, the company's payroll summary, and Forms W-2 
and W-3 showing wages paid to employees in the past year. 
In response, the Petitioner explained that it experienced unforeseen delays causing it to first open a 
dollar store operation instead of a car dealership, as originally planned. The Petitioner further 
explained that the current retail operation would evolve to become a wholesale distributor, in 
addition to retail, within eight months of opening the retail store. The Petitioner stated that it 
currently employs the Beneficiary as CEO, his spouse as "Manager/Supervisor/Administration," and 
one employee as "Sales Officer 2." It claimed that a small staff is in the company's best interests 
and asserted that the Beneficiary does not have to supervise a specific number of employees in order 
establish that he will be employed in an executive capacity. 
The Petitioner did not provide quarterly wage reports, as instructed in the RFE; instead, it provided 
an employee earnings summary with year-to-date earnings and hours worked along with a 2017 "W-
2 Preview" for each of its three employees. We note that failure to submit' requested evidence that 
precludes a material line of inquiry shall be grounds for denying the petition. 8 C.F.R. 
§ 103.2(b)(l4). The provided document shows that the Beneficiary's spouse worked 120 hours and 
the sales person worked II 0.5 hours in 2017. Assessing this information within the scheme of a 40-
hour work week, it appears these employees were not working on a full-time basis. It is also unclear 
whether either was working for the Petitioner at the time of filing. The Petitioner's payroll summary 
does not specify the time period during which either employee worked his or her hours. It is 
therefore unclear who, other than the Beneficiary, the Petitioner employed at the time of filing. 
In the denial decision, the Director made note of the relatively few hours worked by the 
Beneficiary's two subordinates and questioned how the Petitioner would support the Beneficiary in 
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Matter of H-1-A-P-. Inc. 
an executive position, given its limited support staff. The Director concluded that the lack of a 
support staff would preclude the Beneficiary from being able to devote his time primarily to tasks of 
a managerial or executive nature. 
On appeal, the Petitioner contends that the Beneficiary hired two staff members to support his 
position. However, the Petitioner has not provided relevant, probative, and credible evidence to 
support either this claim or the claim made in the petition, where the Petitioner indicated that it had 
two employees total at the time of tiling. As previously noted, the Petitioner provided a payroll 
summary that indicates the total time worked for each of three employees, but does not specify the 
time period during which the employees worked their respective hours. As such, we are unable to 
determine precisely whom the Petitioner employed, other than the Beneficiary, at the time of filing. 
To establish that a petitioner staffed the new operation in the previous year, a petitioner must submit 
a description of staffing, including the number of employees, their positions, and evidence of the 
wages paid to these employees. 8 C.F.R. § 214.2(1)(14)(ii)(D). Here, although the Petitioner 
contends that the Beneficiary's two-person staff is sufficient to take over its daily operations, it has 
not provided information about the Beneficiary's subordinate's job duties at the time of filing. This 
' information is critical for the purpose of allowing us to gain a meaningful understanding of how the 
Petitioner's organization is run and who was performing its operational and administrative tasks at 
the time of filing. If, as the Petitioner claims, the Beneficiary is relieved from having to pertorm 
primarily non-executive functions, the burden is on the Petitioner to establish who is performing 
these duties in his place. 
Further, 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 an intracompany manager or executive. See section 101(a)(44)(C) of the Act. 
The Petitioner refers to several unpublished decisions to dissuade us from overemphasizing its 
staffing size. However, the Petitioner has not established that the facts of this petition are analogous 
to those in the unpublished decisions, nor has it established that unpublished decisions are binding in 
the way of precedent case law. See 8 C.F.R. § 103.3(c). It is also appropriate to consider the size of 
the petitioning company in conjunction with other rele~ant factors, such as the absence of employees 
who would perform the non-executive operations of the company or a company that does not 
conduct business in a regular and continuous manner. Family Inc. v. USCIS, 469 F.3d 1313 (9th Cir. 
2006); Systronics Corp. v. INS. 153 F. Supp. 2d7, 15 (D.D.C. 2001). Furthermore, the Petitioner's 
reasonable needs will not supersede the requirement that the Beneficiary must be "primarily" 
employed in an executive capacity, rather than spending the majority of his time on operational 
duties. See sections 10I(a)(44)(B) of the Act. 
The Petitioner also claims that the Beneficiary relies, in part, on the support staff of the foreign 
entity. In Malter ofZ-A-, Inc., Adopted Decision 2016-02 (AAO Apr. 14, 2016), we held that U.S. 
Citizenship and Immigration Services (USCIS) must take into account overseas employees who 
"support the day-to-day operational needs of the Petitioner." However, in this matter there is no 
corroborating evidence that employees of the parent company support the Petitioner's business 
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Malter of H-1-A-P-, Inc. 
activity in the United States. We note that the Petitioner did not previously raise this claim, nor did 
its previously submitted organizational chart depict any employees, other than those based in the 
United States, as part of the Petitioner's organizational hierarchy at the time of filing. The Petitioner 
must support its assertions with relevant, probative, and credible evidence. See Maller o{Chawathe, 
25 I&N Dec. 369, 376 (AAO 2010). 
The statutory detinition 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 I 0 I (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." Jd. 
In the present matter, the Petitioner has not provided evidence to show that at the time of filing its 
organizational complexity included a managerial tier through whom the Beneticiary can be said to 
direct the management of the organization and focus on its goals and policies. Moreover, the 
Petitioner has not established that a support staff consisting of one employee would have been 
sufficient to relieve the Beneficiary from having to devote his time primarily to the organization's 
non-executive functions at the time this petition was filed. 
B. Duties 
Next, we will discuss the duties to be performed by the Beneficiary. We note that the actual duties 
themselves reveal the true nature of the employment. 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). 
In its initial cover letter, the Petitioner stated that the Beneficiary is a professional accountant and tax 
practitioner. It reviewed the actions the Beneficiary took over the course of the prior year, including 
opening a retail operation. The Petitioner stressed the need for the Beneficiary to remain in his 
position for the purpose of creating the auto sales "wing" of its U.S. operation. The Petitioner also 
included a vague job description, indicating that 65% of the Beneficiary's time would be allocated to 
"Essential Management Functions," which will include the following: 
• Developing the company's business plan and strategies for unknown "projects"; 
• Overseeing "all operations and business activities"; 
• Enforcing compliance with laws and "business ethics" and making "high quality" investment 
decisions; · 
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Matter of H-1-A-P-, Inc. 
• Providing strategy for "new business initiatives"; 
• Designing and using "good organizational, communication, and consensus-building skills"; 
• Forging business relationships and serve as "point of contact for high level networks"; 
• Contemplating problems as presented by subordinates and implementing solutions; and 
• Maintaining "a deep knowledge" of the markets and industry that are relevant to the 
Petitioner. 
The Petitioner did not clarify who it anticipated would be its business partners, nor did it discuss 
which laws and "business ethics" are relevant to its business or state how this would factor into the 
Beneficiary's daily activities. Likewise, the Petitioner did not explain what actions would be 
involved in designing organizational or "consensus-building" skills, describe the types of problems it 
anticipated in the course of its business, or state how the Beneficiary would provide solutions to 
those problems without actively engaging in the Petitioner's operational or administrative functions. 
The Petitioner also did not explain what is meant by "deep knowledge," nor did it specify how the 
Beneficiary would acquire this knowledge. 
The remainder of the job description was equally broad, stating that the Beneficiary would devote 
5% of his time to "Miscellaneous" management duties and 30% to "Additional Management 
Responsibilities," which· would include setting up an accounting structure and system, managing 
suppliers and vendors, overseeing budgets and purchases, managing sales and marketing, working 
with team members and analyzing employee performances, selecting products based on 
subordinates' research, and hiring and firing personnel. The Petitioner did not explain who would 
actually perform the underlying operational tasks associated with marketing or making arrangements 
with suppliers and vendors, nor did it specify which "team members" the Beneficiary would work 
with or whose performance he would assess, given that the Petitioner's staff was comprised of no 
more than two employees, including the Beneficiary, at the time of filing. 
In the RFE, the Petitioner was notified that the original job description was not sufficient and was 
asked to provide more specific information describing the Beneficiary's proposed position. 
In response, the Petitioner listed the same job duties and enumerated various actions he took prior to 
filing the petition in order to advance the business operation going forward. The Petitioner focused 
on the steps the Beneficiary took (e.g., securing a dealership license and learning the requirements 
for operating a dealership business) in order to start an auto sales operation in the near future. It also 
focused on the Beneficiary's discretionary authority, pointing to his decision to open a dollar store 
before starting operation of an auto dealership, as originally planned. With regard to duties under an 
extended petition, the Petitioner stated that the Beneficiary would: 
• Continue to develop business strategy by moving forward with the dealership registration and 
developing a "wholesale unit"; 
• Continue to interact with government agencies, such as the Minnesota Department of 
Agriculture to receive approval to sell certain categories of grocers and Department of Motor 
Vehicles to obtain a dealership license; 
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Malter of H-1-A-P-, Inc. 
• Continue to guide the business by "[b]eing part of the business blue print and developing 
parts of the business plan, including the wholesale and dealership components; 
• Interact with suppliers and vendors to ensure efficiency and savings; 
• Recruit and train new employees·"to fill various positions during the extended petition." 
The Petitioner also restated the statutory definition of "executive capacity," asserting that the 
definition ·does not require the Beneticiary to supervise a specific number or type of employees. 
In the denial decision, the Director concluded that the Petitioner provided a deticient job description 
that was overly vague and did not establish that the Beneficiary would perform primarily executive 
job duties. We agree with the Director's tinding. 
The fact that the Beneficiary will direct a business does not necessarily establish eligibility for 
classification as an intracompany transferee in an executive capacity within the meaning of section 
IOI(a)(44)(B) of the Act. By statute, eligibility for this classification requires that the duties of a 
position be "primarily" executive in nature. Section IOI(A)(44)(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, meeting these two 
statutory requirements is not sufficient to establish that the Beneficiary would perform primarily 
executive job duties. Specific information about the Beneficiary's actual duties is critical; otherwise 
meeting the definitions would simply be a matter of reiterating the regulations. Fedin Bros. Co .. Ltd. 
v. Sava, 724 F. Supp. II 03, II 08 (E.D.N.Y. 1989), ajf'd, 905 F.2d 41 (2d. Cir. 1990). Here, the 
Petitioner listed only a few specific job duties, such as interacting with vendors and suppliers and 
recruiting and training new employees. However, the Petitioner did not establish that these duties 
are executive in nature. 
The remainder of the job description consists of broad statements that do not establish that the 
proposed employment would be in an executive capacity. For instance, the Petitioner stated that the 
Beneficiary would continue to develop the business plan, which involves opening an auto dealership 
and adding a wholesale unit to its retail operation. 'However, the· Petitioner did not specify the 
actions the Beneficiary would undertake in order to meet these business objectives, nor did it 
establish that taking the necessary steps to set up a new business operation involves primarily 
executive-level tasks. Although it is generally understood that a developing business in its initial 
phase of operation may not require or have the ability to support an employee who primarily 
performs executive-level job duties, the regulations only allow the "new otrice" operation one year 
from the date of approval of the petition to support an executive position. See 8 C.F.R. 
§ 2 I 4.2(1)(3)(v)(C). Beyond that initial one-year time frame, an employee who "primarily" performs 
the tasks necessary to produce a product or to provide services is not considered to be "primarily" 
employed in an executive capacity. See, e.g., sections 10l(a)(44)(B) of the Act (requiring that one 
"primarily" perform the enumerated managerial or executive duties); Maller of Church Scientology 
In/ 'I, I 9 l&N Dec. 593, 604 (Comm'r I 988). 
.
Matter of H-1-A-P-, Inc. 
Here, the Petitioner stated that the Beneficiary would continue to carry out functions that are 
consistent with setting up a new operation, including obtaining the nece ssary licenses that are 
required to operate a wholesale food operation and auto dealership, respectively. Such duties would 
not be deemed as those of someone who is employed in an executive capacity. Despite the 
Petitioner's immediate organizational needs to have the Beneficiary continue to carry out operational 
tasks in order to get the business fully functional, the Petitioner does not appear to have progressed 
to a phase in its development where it has the capacity to relieve the Beneficiary from having to 
perform its operational and administrative tasks. Therefore, we cannot conclude that the Beneficiary 
would be employed in an executive capacity under an extended petition. 
Ill. FULL-TIME EMPLOYMENT ABROAD 
Further, while not addressed in the Director 's decision, we will briefly identify an additional ground 
of ineligibility to inform the Petitioner that this issue should be addressed in future proceedings. It is 
unclear whether the Beneficiary's employment ~broad with the Petition er's affiliate was on a full­
time basis. In order to meet the filing requirements for an individual petition, the · Petitioner is 
required to establish that the Beneficiary has at least one continuous year of full-time employment 
abroad with its foreign affiliate. See 8 C.F.R. § 214.2(1)(3)(iii). 
In the present matter, the Petitioner's supporting documents include the Beneficiary 's resume, which 
indicates that during his employment with the foreign affiliate, 
from January 2012 "to · date," the Beneficiary simultaneously assu med the position of 
"chairman/CEO " of the from March 1, 2012 "to date," i.e., 
presumably up through the time he commenced his U.S. emplo yment with the Petitioner. The fact 
that the Beneficiary assumed multiple positions during overlapping time periods leads us to question 
whether his employment with the foreign affiliate was on a full-time basis. 
IV. CORPORATE STATUS 
As a final matter, we are unable , through reference to a website maintained by the State of 
Minnesota, to determine that the Petitioner is in good standing and authorized to do business in 
Minnesota. Based on Minnesota state records, the Petitioner's corporate status was shown as 
"Inactive," due to administrative dissolution as of March 14, 2017. 2 The Petitioner's dissolution 
raises questions about whether it continues to exist as an importing employer, whether it maintains a 
qualifying relationship with the Beneficiary 's foreign employer , a nd whether it is authorized to 
conduct business in a regular and systematic manner. See section 2 14( c)( 1) of the Act; see also 8 
C.F .R. §§ 214.2(1)(1 )(ii)(G) and (1)(3). While not a basis for the dismissal of this appeal, the 
Petitioner will need to address this deticiency in any future filing where it purports to be the 
employin g entity. 
2 See https: 
(last visited May I 0, 20 18). 
8 
Mal/er of H-1-A-P-, Inc. 
V. CONCLUSION 
For the reasons discussed above, we find that the Petitioner has not established that the Beneticiary 
will be employed in the United States in an executive capacity under an extended petition. 
ORDER: The appeal is dismissed. 
Cite as Matter of H-1-A-P-. Inc., ID# I 253967 (AAO May 29, 201 8) 
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