dismissed L-1A Case: Scrap Metal Recycling

.
U.S. Citizenship 
and Immigration 
Services 
MATTER OF J-M-, INC. 
APPEAL OF VERMONT SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: FEB. 15.2018 
PETITION: FORM I-129. PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a scrap metal recycling wholesaler , seeks to temporarily employ the Beneticiary
1 
as 
the chief financial officer of its new office 2 under the L-1 A nonimmigrant classification for 
intracompany transferees. See Immigration and Nationality Act (the Act) section 10l(a)(I5)(L). 
8 U.S.C. § ll01(a)(l5)(L). The L-lA classification allows a corporation or other legal entity 
(including its afliliate 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: ( 1) the Beneficiary was employed abroad in a managerial or 
executive capacity; and (2) the new oftice would support the Beneficiary in a managerial or executive 
position within one year after approval of the petition. 
On appeal, the Petitioner disputes the deniaL pointing to a previously submitted percentage 
breakdown as evidence of his executive job duties abroad. The Petitioner also argues that the 
Director erroneously concluded that the Beneficiary would not be 
employed in an executive capacity 
within one year of the petition's approval. 
Upon de novo review, we will dismiss the appeal. 
I. LEGAL FRAMEWORK 
To establish eligibility for the L-1 A nonimmigrant visa classification tor a new office. a qualifying 
organization must have employed the beneficiary in a managerial or executive capacity for one 
1 
It is noted for the record that the Beneficiary's name as provided by the Petitioner in (I) the petition. (2) the Petitioner's 
Articles of Incorporation. and (3) ·'Consent of the Directors in Lieu of Organizational Meeting," refer to the 
Beneficiary's first name as · · However. the ''Given Name" field in the Reneficiary·s passport is blank. The 
Beneficiary's BI /B2 nonimmigrant visa issued on January 5. 2011, states · · in the ·'Given Name" field. It is 
unclear whether the Beneficiary· s first name is · or whether he does not have a given first name. We also note that 
the Petitioner provided an alias for the Beneficiary," "on the petition. 
2 
The term "new office" refers to an organization which has been doing business in the United States for less than one 
year. 8 C.F.R. § 214.2(l)(l)(ii)(F). The regulation at 8 C.F.R. § 214.2(1)(3)(v)(C) allows a "new office" operation no 
more than one year within the date of approval of the petition to support an executive or managerial position. 
Matter of J-M-, Inc. 
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. Section I 0 I (a)( 15 )( L) of the 
Act. 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). 
Further. if the Fom1 I-129. Petition for a Nonimmigrant Worker, indicates that the Beneficiary is 
coming to the United States in L-1 A status to open or to be employed in a new ot1ice. the Petitioner 
must submit evidence to demonstrate that the new office will be able to support a managerial or 
executive position within one year. This evidence includes information regarding the new oflice's 
physical premises. the proposed nature and scope of the entity, its organizational structure. its 
financial goals, and the size ofthe U.S. investment. 5\ee KCnerally. 8 C.F.R. ~ 214.2(1)(3)(v). 
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 IOI(a)(44)(B) of the 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) must take into account 
the reasonable needs of the organization. in light of the overall purpose and stage of development of 
the organization. 5\ee section IOI(a)(44)(C) ofthc Act. 
II. EMPLOYMENT ABROAD 
The first issue we will address in this decision is the Beneficiary's employment abroad. which 
involves multiple elements. First. the Petitioner must establish that the Beneficiary was employed 
abroad by a qualifying entity. that such employment lasted for one continuous year. and that it took 
place within the three years that preceded the tiling of the instant petition. Once the Petitioner 
establishes that these criteria have been met. it must demonstrate that the Beneficiary" s position was 
in a managerial or executive capacity. In this instance. the Director determined that the Beneficiary 
was not employed in an executive capacity. but did not discuss any of the other foreign employment 
requirements. 
2 
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Maller of'J-M-. Inc. 
A. Employment in an Executive Capacity 
The Petitioner claims that the Beneficiary was employed abroad in an executive capacity. 3 The 
Director concluded that the Petitioner did not provide sufficient evidence to support this claim. 
Therefore, the first issue to be addressed in this decision is whether the Petitioner established that the 
Beneficiary was employed abroad in an executive capacity. 
I. Duties 
When examining the executive capacity of the Beneficiary's foreign employment, we will look first 
to the description of the Beneficiary's job duties. The description should clearly describe the duties 
the Beneficiary performed and indicate whether such duties were in a managerial or executive 
capacity. See 8 C.F.R. § 214.2(1)(3)(ii). 
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). Second. the Petitioner must prove that the 
Beneficiary will be primarily engaged in executive duties. as opposed to ordinary operational 
activities alongside the Petitioner's other employees. ,','ee Fami(v Inc. v. USCIS . 469 F.3d I 313, 
1316 (9th Cir. 2006); Champion World, 940 F.2d 1533. 
In the L Classification Supplement. the Petitioner stated that the Beneficiary assumed the position of 
"General Financial Director/Manager" at the foreign entity. The Petitioner claimed that the 
Beneficiary's foreign position involved: representing the company before "key bank financiers" to 
negotiate financial agreements; managing "all financial activities. systems, and reporting": and 
setting the company's financial goals. determining how to achieve them. and directing the '·team" 
that will implement them. 
In a request tor evidence (RFE). the Director informed the Petitioner that the above job description 
was not sut1icient and asked tor a letter from the foreign entity listing the Beneficiary's typical 
executive job duties and the percentage of time he allocated to each duty daily. The Director stated 
that the job description should demonstrate that the Beneficiary meets the four elements that 
comprise the definition of''executive capacity:· 
In response, the Petitioner provided a letter from a partner of the foreign entity. who 
provided a percentage breakdown listing the Beneficiary's duties and responsibilities as ·'the senior­
most director of the financial department." indicated that 30% of the 13eneticiary" s 
time was allocated to activities 
that he carried out intermittently on a monthly or yearly basis. 
including holding monthly investor meetings to ''[m]aintain investor confidence," reviewing and 
approving monthly and yearly financial statements within the scope of the current market and tax 
·
1 
The Petitioner did not claim that the Beneficiary was employed abroad or that he would be employed in the United 
States in a managerial capacity. Therefore, our analysis will address only whether the record contains sufticient 
evidence to establish that the Beneficiary's employment abroad was in an executive capacity. 
3 
Malter ol.!-M-. Inc. 
considerations. and traveling "at least 2 weeks out of each year·· to represent the company before 
trade unions and business associations. He also stated that 20% of the Beneficiary's time was spent 
attending meetings daily to negotiate financing terms with banks and other financial institutions: 
20% was spent negotiating terms with suppliers and vendors: an aggregate of 20% was spent 
reviewing data to make recommendations for new projects and business ventures and exercising 
"ultimate discretion" regarding the purchase of financial reporting software and the implementation 
of management reporting programs: and the remaining l 0% was spent establishing and 
implementing company policies to"[ m ]aintain market credibility." 
In the denial decision. the Director determined that while the Beneficiary possesses the discretionary 
authority that is typical of an executive. his job description was overly broad and lacked a sufficient 
explanation of the specific duties he performed on a daily basis. 
We agree with the Director's conclusion and also lind that the job description does not provide a 
meaningful understanding of the specific daily tasks the Beneficiary performed during his 
employment abroad. As indicated above. 30% of the Beneficiary time was allocated to tasks that he 
performed intermittently on an as-needed basis. Such duties do not represent the Beneficiary's 
actual tasks in the course of the Petitioner's daily routine and therefore do not explain how the 
Beneficiary allocated his time on a daily basis. Further. the record does not establish that there is a 
need. within the scope of a metal recycling business. to hold daily two-hour meetings with lending 
institutions to negotiate credit and lending terms. If USC IS finds reason to believe that an assertion 
stated in the petition is not true, USC IS may reject that assertion. See. e.g. Section 204(b) of the 
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). 
The job description also indicates that purchasing tinancial reporting software and embarking on 
new projects and business ventures are routine occurrences within the foreign entity. The record 
does not, however. indicate that either activity occurs routinely on a daily or even weekly basis 
within the scope of the foreign entity's business: therefore. it is not likely that making business 
decisions regarding the purchase of financial reporting software or reviewing feasibility studies in 
consideration of new business ventures are tasks that the Beneficiary needed to perform routinely on 
a daily or weekly basis, as the job description suggests. Likewise. while establishing policies and 
ways to implement them may be consistent with an executive-level position. the record does not 
indicate that policy-making activities would be part of the Beneficiary's daily routine. 
On appeal. the Petitioner contends that accepting the job description as evidence of the Beneficiary's 
level of discretionary authority necessarily means that the Director conceded that job description 
constituted sufficient evidence to establish that the Beneficiary primarily allocated his time to 
executive-level job duties. We disagree and find that the job description is insufficient for the 
reasons discussed above. Contrary to the Petitioner's contention. the degree of discretionary 
authority is only one of several factors we consider to determine whether a beneficiary's position is 
in an executive capacity; a position may involve a heightened degree of discretionary authority. yet 
require a beneficiary to allocate the primary portion of his or her time to non-executive job duties. 
4 
Maller o{.!-M-, Inc. 
As such, the actual duties, not the level of discretionary authority alone, are true indicators as to the 
nature of the employment. See Fcdin Bros. Co .. Ltd. v. Sava. 724 F. Supp. 1103. 1108 (E.D.N.Y. 
1989), a{('d, 905 F.2d 41 (2d. Cir. 1990). 
The Petitioner also asserts that it is unable to specify the Beneficiary"s daily job duties. claiming that 
the duties change depending on the needs of the company. We note. however, that this claim does 
not excuse the Petitioner from having to meet its burden of proof: a determination of whether the 
Beneficiary's employment was in an executive capacity requires a description of the Beneficiary's 
job duties. The Petitioner must support its assertions with relevant, probative. and credible 
evidence. Sec Maller of Chawathc, 25 I&N Dec. 369, 376 (AAO 201 0). A vague job description 
does not constitute sufficient evidence to support the claim that the Beneficiary's employment was in 
an executive capacity. 
In the present matter, the RFE expressly instructed the Petitioner to provide a detailed job 
description that includes specific information about the Beneficiary's activities in the course o/his 
daily routine. As indicated in our analysis. the Petitioner did not comply with that instruction and 
instead provided an ambiguous job description with time allocations that do not comport with the 
nature of the foreign entity" s business. While the job description indicates that the Beneficiary had a 
level of discretionary authority over the foreign entity's financial matters and business concerns, this 
factor alone is not sufficient to establish that the job duties he performed were primarily of an 
executive nature. Despite claiming that it met its burden in establish that the Beneficiary allocated 
his time primarily to executive-level duties, the Petitioner has not adequately supported this claim 
and instead, provided a job description that lacks the necessary degree of detail to convey a 
meaningful understanding of the actual tasks the Beneficiary performed daily within the scope of the 
foreign entity's metal recycling business. As such, we cannot conclude that the Beneficiary 
allocated his time primarily to job duties of an executive nature. 
2. Staffing 
Beyond the required description of the job duties. USClS reviews the totality of the evidence when 
examining the claimed executive capacity of a beneficiary. including the employer'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 the denial decision, the Director determined that the record lacks sufticient evidence to establish 
that the foreign entity's operational needs and organizational complexity were sufficient to relieve 
the Beneficiary trom having to allocate his time primarily to non-executive job duties. 
The statutory definition of the term "executive capacity" focuses on a person· s elevated pos1t1on 
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 
5 
Matter of.J-M-, Inc. 
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. 
In the present matter. the Petitioner's RFE response includes the foreign entity's organizational 
chart, which indicates that the Beneficiary is the general manger of finance and that he is subordinate 
to one of the company's four partners. The chart also shO\vs that the Beneficiary directly oversees 
the work of a cashier and an accounts manager and that the accounts manager oversees an accounts 
assistant. Despite claiming that the cashier is a professional position that requires a degree in 
accounting or bookkeeping. the Petitioner did not provide evidence to support this claim. nor did it 
specify whether the "degree .. referenced was a four-year baccalaureate degree. 4 The record also 
lacks sutlicient evidence to establish that the accounts manager is actually a managerial or 
supervisory position. Despite the accounts manager's placement in the foreign entity's hierarchy. 
the position description includes no supervisory or managerial job duties. and thus it does not appear 
that the accounts manager is a managerial employee. 
As noted earlier. the Petitioner must support its assertions with relevant probative, and credible 
evidence. See Chawathe. 25 l&N Dec.at 376. In this instance. we cannot conclude that the three­
person support staff within the Beneficiary's department comprises the requisite manageriallcvel of 
subordinates for the Beneficiary to direct or that the organizational complexity within this 
department is suf1icient to elevate the Beneficiary's position to that of an executive. As such. we do 
not find that the foreign entity's staffing is sufficient to either necessitate or support the Beneficiary 
in an executive-level position. 
3. Continuous Employment Abroad Within the Requisite Time Period 
The Director's discussion of the Beneficiary's foreign employment in this matter focused 
exclusively on the executive nature of the position he is claimed to have held. However. as 
previously noted, determining whether the Beneficiary's position abroad was of an executive nature 
is not dispositive of the Beneficiary· s foreign employment requirements. As stated earlier. not only 
must the Petitioner establish that the Beneficiary was employed abroad in an executive capacity. but 
it must also provide evidence to show that the Beneficiary's employment abroad: (I) was with a 
qualifying entity: (2) took place during the three years prior to tiling the petition: and (3) lasted 
continuously for one year within the requisite three-year period. 
4 
In evaluating whether a beneficiary manages professional employees. we must evaluate whether the subordinate 
positions require a baccalaureate degree as a minimum for entry into the field of endeavor. C(: 8 C.F.R. ~ 204.5(k)(2) 
(defining ·'profession" to mean "any occupation for which a U.S. baccalaureate degree or its foreign equivalent is the 
minimum requirement for entry into the occupation"). Section IOI(a)(32) of the Act. states that "[t]he term profession 
shall include but not be limited to architects. engineers. lawyers. physicians. surgeons. and teachers in elementary or 
secondary schools. colleges, academies, or seminaries ... 
.
Maller(~( J-M-, Inc. 
The above requirements were listed in the RFE and the Director observed that the reco rd. as 
constituted at that time. did not support the Petitioner's claim that the Benefici ary had been 
employed by the foreign parent entity since 2002. The Petitioner was allowed an opportunity to 
provide additional evidence , including personnel and payroll records and a statement ''from the 
[B]eneticiary's supervisor( sf" regarding his employment with the foreign entity . 
We note that while the Petitioner provided two letters verifyi ng and describing the Beneticiar y's 
emplo yment abroad, eac h letter was signed by one of the t()reign entit y' s t(mr I is ted partners. neith er 
of which was the partner depicted as the Beneficiary's direct supe rvisor on the 
foreign entity's organizational chart . Thus , neither emplo yment letter was in compliance with the 
spec ific instructions in the RFE . The Petitioner also provided ··salary slip[s]" for February through 
August 2016 and for December 2016 . However. these document s are insufficient evidence of the 
Beneficiary's foreign employment beca use (I) they account for only eight month s of the required 
12-month period and (2) the employee name listed on these pay slips was not that 
of the Beneficiary. We further note that the pay slips include employee-related tield s. such as the 
number of days worked and the amount of leave and the number of absences accumulated during the 
specified pay period ; however , all fields. with the exception of the employee name , net salary. and 
employee identification number , were len blank . 
In addition, we note that in the course of reviewing the evidence and contemplating the Petitioner · s 
eligibility, we found docum ents outside the record that the Petitioner will need to address in any 
future tiling . Specifically. in a nonimmigrant visa application that the Beneficiar y completed and 
submitted to the Department of State in November 201 0. the Beneficiary identi tied 
and as his '"present" employers at that time. Further. whe n asked to 
describe his job duties in the 20 I 0 visa application, the Beneficiary stated that he hand lcs 
operations, includin g its human resources and marketing and that he ""also look[ s] after the 
group finances," claiming that "all companies are family concern s.'' The Beneficiar y expre ss ly 
stated that he did not solely work for there by indicating that his claimed 
employment with that entity may not have been full-time. While we cannot rely on inform ation that 
the Beneficiary provided in a nonimmigrant visa application. \vhich is outside the instant record. the 
Petitioner will have to addres s this info rmation and overcome any inconsistencies that may result 
therefrom in any future filing where the Beneticiary 's employment abroa d is an eligibilit y factor. 
Regardless, the record in thi s instance contains deficient paystubs and employment veritica tion 
letters that are not in compliance with the Director's specific RFE instructions. Therefore, we find 
that the Petitioner has not provided sufticient evidence to show that the Beneficiary was a full-time 
employee of and that he was continuously employed by that entit y during the 
required time period and for the prescribed duration of one yea r. 
Matter of.J-Af-. Inc. 
Ill. U.S. EMPLOYMENT IN AN EXECUTIVE CAPACITY 
Because the above issue concerning the Beneficiary's employment abroad is dispositive of this 
appeal, we will briefly address the remaining issue pertaining to the Beneficiary's proposed 
employment. 
The Director determined that the Petitioner did not establish that it would be able to support the 
Beneficiary in an executive position within one year of the petition's approval. Based on our review 
of the Petitioner's supporting evidence. including its business plan as well as its proposed 
organizational hierarchy and hiring plan. we find that the Petitioner has not adequately demonstrated 
that it would grow sutliciently in its organizational complexity such that it would have the ability to 
relieve the Beneficiary from having to primarily perform non-executive job duties and elevate him to 
an executive position where he would primarily direct the management of the organization and 
establish its goals and policies. Therefore. we agree with the Director's finding and need not further 
address this issue in the instant decision. 
IV. CONCLUSION 
The Petitioner has not established that the Beneficiary's employment abroad meets the statutory 
criteria, nor has the Petitioner provided sufficient evidence to show that it will employ the 
Beneficiary in an executive capacity within one year of the petition· s approval. 
ORDER: The appeal is dismissed. 
Cite as Maller of'.J-M-. Inc, ID# 639589 (AAO Feb. 15. 2018)