dismissed L-1A Case: Retail Management

U.S. Citizenship 
and Immigration 
Services 
MATTER OF G-P- LLC 
APPEAL OF VERMONT SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: FEB.l3.2018 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, which claims to operate and manage gas stations and convenience stores, seeks to 
continue the Beneficiary's temporary employment as its general manager under the L-1 A 
nonimmigrant classification for intracompany transferees.
1 
S'ee Immigration and Nationality Act 
(the Act) section 101(a)(I5)(L). 8 U.S.C. §I 101(a)(I5)(L). The L-IA classification allows a 
corporation or other legal entity (including its atliliate 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 record 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 asserts that the evidence of record establishes that the Beneficiary will be 
employed in a managerial capacity and demonstrates that he "carries the main executive authority 
within the company." 
Upon de novo review, 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 capacity that is managerial, executive, or involves specialized 
knowledge.·· for one continuous year within three years preceding the beneficiary's application for 
admission into the United States. Section I 01 (a)(15)(L) of the Act. 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 atliliate thereof in a managerial or executive capacity. !d. 
1 
The Petitioner previously filed a "'new office·· petition on the Beneficiary"s behalf which was approved for the period 
February 2, 2016, until February I, 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. 
Matter o(G-P- LLC 
A petitioner seeking to extend an L-1 A petition that involved a new ot1ice 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). 
"Managerial capacity" means an assignment within an organization in which the employee primarily 
manages the organization, or a department subdivision, function. 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 
101(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. 
If staffing levels are used as a factor in determining whether an individual is acting in a managerial 
or executive capacity. U.S. Citizenship and Immigration Services (USCIS) takes into account the 
reasonable needs of the organization. in light of the overall purpose and stage of development of the 
organization. See section I 0 I (a)( 44 )(C) of the Act. 
II. U.S. EMPLOYMENT IN A MANAGERIAL OR EXECUTIVE CAPACITY 
In the denial decision. the Director emphasized that the Petitioner provided a very general 
description of the Beneficiary's duties which was insutlicient to explain the nature of the tasks he 
performs on a regular and ongoing basis. The Director also noted that there were inconsistencies 
between the Petitioner's organizational chart and its salary and wage records. Finally, the Director 
noted the Petitioner did not establish that the employees identified on its organizational chart as 
"managers" would truly be perfonning managerial or supervisory duties. or that the company has 
sufficient staff to support a managerial or executive position. 
On appeal, the Petitioner re-submits the Beneficiary's job description. its organizational chart and 
wage records, and job descriptions for all company employees in support of its assertion that the 
evidence on record is sufficient to establish the Beneficiary's employment in a managerial capacity. 
The Petitioner also states that the position qualifies, in the alternative, as an executive position. 
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Maller ofG-P- LLC 
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 perfonned 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, 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. 
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. 
A. Staffing and Organizational Structure 
The Petitioner states that the Beneficiary manages a "consortium" of companies that includes the 
Petitioner's claimed 50% owned subsidiaries: which operates a gas station and 
convenience store doing business as " and which operates a grocery store 
doing business as ' 
The record shows that was established in 2016 and the Petitioner provided two stock 
certificates indicating that it owns half of this company's issued shares. The Petitioner provided 
evidence that was established as a Florida corporation in June 2015. The Petitioner 
submitted the following documentation relevant to this company: 
• Agreement and closing statement indicating that the Beneficiary and as 
individuals, purchased all shares of from the previous individual owner on 
June 23, 2015, for $280,000; 
• 2015 federal tax return, which identified the Beneficiary and 
as its 50-50 owners ; 
• undated stock certificate no. 2, which indicates that the Petitioner owns 
5000 of the company's 10.000 shares; and 
• undated stock certificate no. 3, which indicates that owns 
the remaining 5000 shares. 
The Petitioner's 2015 tax 
return states that the company engages in the wholesale of machinery and 
equipment. It does not indicate that the Petitioner owned an interest in any other U.S. entity. 
Therefore, the record contains incomplete and inconsistent evidence regarding the ownership of 
and the timing of the Petitioner's claimed acquisition of the business. The undated 
stock certificates alone are insufficient to establish that this company is the Petitioner's subsidiary, 
particularly in light of evidence that the Beneficiary, and not the Petitioner , owns a 50 percent 
ownership interest. Further, the Petitioner did not provide copies of all of stock 
certificates, stock ledger, or evidence of the source of funds provided for its purchase. 
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Matter ofG-P- LLC 
Nevertheless, the Petitioner did provide evidence that it and share the payroll 
responsibility for the location, which includes a gas station, car wash, and a convenience 
store with a coffee shop. All employees on the Petitioner's payroll, other than the Beneficiary. are 
identified as staff. 
Turning to the Petitioner's organizational chart, the Petitioner indicates that employs 
a manager who oversees an operation manager and an administrative manager. The administrative 
manager has a subordinate administrative assistant, while lower-level employees reporting to the 
operation manager include an "attendant & cashier, " an attendant, a convenience store/coffee shop 
employee, and a cook assistant. The chart also showed vacancies for an attendant and a warehouse 
assistant. The Petitioner indicated that all employees work full-time. except for the attendant and 
cook assistant. who earn $150 per week. 
In the first quarter of 20 17 when the petition was tiled, the Petitioner paid full-time wages to the 
Beneficiary, the manager, and the convenience store/coffee shop employee, while 
paid full-time wages to the administrative manager and operation manager. However. the lower 
level employees received the following wages from the Petitioner: 2 
Full-time attendant and cashier - $0 
Part-time attendant - $1200 
Part-time cook assistant~ - $150 
Regarding the staffing of the Petitioner's organizational chart shows that this retail 
grocery business employs a full-time manager, a full-time "purchaser coordinator ," and a part-time 
maintenance 
employee, with a vacancy for a store attendant. Comparing this information to the 
company's Florida quarterly wage report for the first quarter of 2017, we note that paid 
only two employees - the manager (who earned less than half of his stated salary). and a part-time 
employee who was not named on the organizational chart. 
The Petitioner claims that the Beneficiary will be employed in a managerial capacity. in part, based 
on his responsibility for supervising subordinate managerial and supervisory personnel within both 
claimed subsidiary businesses. The statutory definition of ''managerial capacity'' allows for both 
"personnel managers" and "function managers.'' See section 101(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 ''tirst 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 are professional.'' 1 Section 10l(a)(44)(A)(iv) ofthe Act. 
Here, while the Petitioner submitted an organizational chart and job descriptions indicating that the 
Beneficiary has subordinate managers who oversee the day-to-day operations of the respective 
2 
The Petitioner paid two other individuals not named on the organizational chart. One individual 
$322, and the other individual ( earned $2640, commensurate with part-time employment. 
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earned 
Matter ofG-P- LLC 
businesses, other evidence in the record undermines its claim that the Beneficiary is primarily a 
personnel manager. The evidence must substantiate that the duties of a beneficiary and his or her 
subordinates correspond to their placement in an organization's structural hierarchy. Managerial job 
titles are not probative and will not establish that an organization is sufficiently complex to support 
an executive or manager position. 
Because of the nature of the two businesses. the limited staffing documented in the record, and the 
vacant operational positions, the record does not support a conclusion that the Beneficiary's 
subordinates are managers or supervisors. and the Petitioner has not claimed that they arc 
professional employees. Instead, as discussed further below. the Beneficiary's subordinates arc 
more likely than not required to perform the actual day-to-day tasks of operating the retail businesses 
they are claimed to manage. The Petitioner has not provided evidence of an organizational structure 
sufficient to elevate the Beneficiary to a supervisory position higher than a first-line supervisor of 
non-professional employees. Therefore, the Beneficiary's position does not qualify as that of a 
personnel manager. See section 101(a)(44)(A)(iv) ofthe Act. 
Section 101(a)(44)(C) of the Act requires that USCIS must take into account the reasonable needs of 
the organization in light of the overall purpose and stage of development of the organization if 
staffing levels are used as a factor in determining whether an individual is acting in a managerial or 
executive capacity. 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. Family Inc. v. USCIS. 469 
F.3d 1313 (9th Cir. 2006); Systronics Corp. v. INS. 153 F. Supp. 2d 7, 15 (D.D.C. 2001). 
One of the Petitioner's claimed subsidiary businesses includes a gas station with a convenience 
store, car wash, and (according to the Petitioner's organizational chart) a "coffee shop." The other 
business is a grocery store, which includes a cafe with a full kitchen, where customers can order 
drinks and freshly-prepared foods. While the Petitioner and its two subsidiaries paid a total of 12 
employees in the first quarter of 2017. the Petitioner did not document sufficient staff to perform the 
most routine, day-to-day duties of these types of retail businesses. As noted, the Petitioner 
documented only two employees working in the grocery store. including a manager earning half of 
his claimed salary and an unidentified part-time worker. In fact, it is unclear how the store would 
remain open and operational without employees to open and close the store. wait on retail customers, 
wait on cafe customers and prepare food. stock shelves. monitor store security. order inventory. and 
perform daily cash reconciliation and banking duties. The Petitioner has not established that the 
Beneficiary would be removed from significant involvement in the day-to-day operations of this 
business. 
Further, even though the Petitioner documented a total of I 0 employees paid for work in the gas 
station/convenience store business, two of them were "administrative'' employees who are not 
claimed to work in store operations, four of them worked minimal hours, and the only claimed full­
time cashier was not on the payroll when the petition was filed. Given that the Petitioner's chart also 
showed vacancies for additional lower-level workers. the record did not show that this business 
employed sufficient line stan: and the claimed operation manager and manager were more likely 
.
Maller (~(G-P- LLC 
than not required to perform duties normally attributed to attendants, cooks, or cashiers on a regular 
basis. 
Finally, there is a lack of clarity in the record as to whether the Petitioner itself has any business 
activities independent of the stores operated by its claimed subsidiaries. According to the 
Petitioner's 2015 tax return , the company was operating a wholesale equipment and machinery 
business when 
it commenced operations that year and achieved approximately $90,000 in sales. The 
Petitioner did not 
provide any evidence of its own business activities. If the company continues to 
be engaged in a \vholesale business, then it is unclear who, other than the Beneficiary . would be 
assigned duties associated with the day-to-day operations of this business. as all other staff on the 
Petitioner's payroll are assigned to the store operated by 
In sum, the Petitioner has not established that it has grown to the point where it has a reasonable 
need tor the Beneficiary to pertorm primarily managerial or executive duties or where it has 
sutlicient subordinate staff to relieve him from significant involvement in the day-to-day operations 
of the business. 
B. Duties 
Turning to the Beneficiary's duties we note that based on the 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.Jd 1313, 1316 (9th Cir. 2006 ); 
Champion World, 940 F.2d at 1533. 
Initially, the Petitioner 
provided a very brief description of the Beneficiary's duties on the Form 1-
129, noting that he will plan and direct the company's operations. formulate policies , manage the 
daily operations , plan the use of materials and human resources. manage staff, prepare work 
schedules and assign duties. direct and coordinate financial and budget activities. determine staffin g 
requirements, and maximize investments. This description was vague and offered little insight into 
what the Beneficiary would be doing on a day-to-day basis. 
In response to the Director's RFE, the Petitioner submitted a letter with a 16-page long description 
of the Beneficiary's duties. While quite lengthy, the description is disjointed. with several pages of 
general duties described in narrative format interspersed with: (1) a narrative account of the 
Beneficiary's responsibilities in the areas of "planning.'' "organizing,'' "directing.'' and 
"controlling''; (2) a two-page list of "specific duties and responsibilities''; (3) a separate numbered 
list of the Beneficiary ' s duties under the headings '·organizational management.'' "financial 
management ," and "workplace management"; and (4) a job duty chart which includes a bulleted list 
of the Beneficiary's tasks and the percentage of time he spends on each task. Most of the 
responsibilities attributed to the Beneficiary throughout this document are very general and could 
apply to any manager or executive within any type of business , as the Petitioner has simply 
Matter ofG-P- LLC 
paraphrased the statutory definitions of managerial and executive capacity by focusing on the 
Bendiciary's authority to oversee operations, formulate policy, hire and fire staff, and manage and 
direct the organization as a whole. Conclusory assertions regarding the Beneficiary" s employment 
capacity are not sufficient. Merely repeating the language of the statute or regulations does not 
satisfy the Petitioner's burden of proof. Fedin Bros. Co .. Ltd v. Sava, 724 F. Supp. II 03. II 08 
(E.D.N.Y. 1989), affd, 905 F. 2d 41 (2d. Cir. 1990); Avyr Assoc.\ .. Inc. v. Meissner, 1997 WL 
188942 at *5 (S.D.N.Y.). Although such responsibilities reflect the Beneficiary's senior position in 
the company, the Petitioner did not provide details needed to provide insight into what he would he 
doing on a day-to-day basis as the company's general manager. 
For the purpose of this analysis, we will focus on the joh duties chart, as it purports to assign 
percentages to the Beneficiary's individual tasks, as follows: 
• Carry out market studies to detect new business opportumt1es. Promote the 
merchandise offered by the company in a regional and national level (I 0%) 
• Produce estimates of the cost of merchandise and services in conjuncture [sic] 
with companies managers. (I 0%) 
• Define the course of action to negotiate the sales of our services to our clients. 
(10%) 
• Approve the cost of provisions for the different departments in his charge ... 
(15%) 
• Follow up on the job perfonnance of each department under his supervision. 
(15%) 
• Coordinate and planning of meetings with each department head ... ( 5%) 
• Analyze and approve cost adjustments of services before presenting it to the 
Board of Directors. (5%) 
• Evaluate the job performance of each employee and decide the percentage of 
salary raise. (5%) 
• Plan job training for its employees. (5%) 
• Approve the hiring of consulters and CPA's and the terms of these contractors as 
well as the revision of the report provided by them (5%) 
• Present in a monthly basis to the Board of Directors the results of his job 
performance ... (5%) 
• Approve the policies and procedures that are in his authority. As well as comply 
and make every employee comply to the company's job policies and procedures 
... (10%) 
Even though these duties account for I 00 percent of the Beneficiary's time. the submitted chart 
includes ten additional duties that the Beneficiary performs either daily. continuously, occasionally. 
weekly, or "as needed.'' For example, the Petitioner noted that the Beneficiary directs and 
coordinates tinancial activities (including continuous communication with banks) on a daily basis. 
that he continuously directs "all the management activities that mean interaction with clients." that 
he reviews the payroll on a weekly basis, and that he occasionally prepares and presents annual 
budgets, participates in board meetings. evaluates staff performance (bi-annual), and performs ·'other 
Matter o(G-P- LLC 
duties" assigned by the board. The inclusion of these additional tasks undermines the accuracy of 
the percentages assigned to the other duties provided in the chart. 
Further, the duties outlined in the chart include a number of tasks that cannot be classified as 
managerial or executive in nature. For example, activities such as carrying out market studies. 
promoting the company's merchandise. performing cost estimates for products and services, and 
approving "the cost of provisions," which the Petitioner indicates will require 35% of the 
Beneficiary's time. indicate that the Beneficiary is likely directly involved in performing market 
research. marketing and promotional functions. routine budgeting. and purchasing activities. The 
Beneficiary's involvement in routine financial matters is further supported by the Petitioner's claim 
that he performs banking duties on a daily basis. The Petitioner also indicates that the Beneficiary 
"defines the course of action to negotiate the sales of our services to our clients," but it is unclear 
what "services" the Petitioner is selling or what types of negotiations the Petitioner has with its retail 
customers. Finally. the Petitioner's indication that the Beneficiary will be evaluating each 
employee's job performance and planning job training for all employees supports a finding that he 
would be supervising all employees. including those at the lowest tier of the organizational chart. 
and not delegating these first-line supervisory tasks to subordinate managers or supervisors. 
The statutory definition of the term "executive capacity'' focuses on a person· s elevated position 
within a complex organizational hierarchy, including major components or functions of the 
organization, and that person's authority to direct the organization. Section 10l(a)(44)(B) of the 
Act. Under the statute, a beneficiary must have the ability to "direct the management" and "establish 
the goals and policies·· of that organization. Inherent to the definition. the organization must have a 
subordinate level of managerial employees for a beneficiary to direct and they must primarily focus 
on the broad goals and policies of the organization rather than the day-to-day operations of the 
enterprise. An individual will not be deemed an executive under the statute simply because they 
have an executive title or because they "direct" the enterprise as the owner or sole managerial 
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. 
Here. even though the Beneficiary holds the senior position within the company. the fact that the 
Beneficiary will manage a business does not necessarily establish eligibility for classification as an 
intracompany transferee in an executive capacity within the meaning of section 10l(a)(44)(B) of the 
Act. By statute. eligibility for an executive requires that the duties of a position be "primarily" 
executive in nature. Section 10l(A)(44)(B) of the Act. The Petitioner's description of the 
Beneficiary's duties does not indicate that he is primarily focused on the goals and policies of the 
company or other qualifying executive tasks. As discussed, based on the nature of the Petitioner's 
business and its reasonable staffing needs, the Petitioner has not shown that it has a level of 
employees who perform the day-to-day management of the business. or that the company (or its 
claimed subsidiaries) employs sufficient staffto relieve the Beneficiary from focusing on the day-to­
day operations of the enterprise. 
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Matter ofG-P- LLC 
Ill. CONCLUSION 
The appeal must be dismissed as the Petitioner did not establish that it will employ the Beneficiary 
in a managerial or executive under the extended petition. 
ORDER: The appeal is dismissed. 
Cite as Matter ofG-P- LLC. ID# 927795 (AAO Feb. 13, 2018) 
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