dismissed L-1A Case: Sculpture Sales

U.S. Citizenship 
and Immigration 
Services 
InRe : 12715111 
Appeal of California Service Center Decision 
Form 1-129, Petition for L-lA Manager or Executive 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: FEB. 25, 2021 
The Petitioner, a company engaged in the sales of African/Shona sculpture, and installation and 
landscaping, seeks to continue the Beneficiary's temporary employment as its chief executive officer 
(CEO) under the L-lA classification for nonimmigrant intracompany transferees .1 Immigration and 
Nationality Act (the Act) section 101(a)(15)(L), 8 U.S.C. § 110l(a)(15)(L). The L-IA classification 
allows a corporation or other legal entity (including its affiliate or subsidiary) to transfer a qualifying 
foreign employee to the United States to work temporarily in a managerial or executive capacity. 
The Director of the California Service Center denied the petition, concluding that the record did not 
establish, as required, that the new office developed to an extent that it was able to support a managerial 
and executive position. 
In these proceedings, it is the Petitioner's burden to establish eligibility for the requested benefit. See 
Section 291 of the Act, 8 U.S.C. § 1361. Upon de nova review, we will dismiss the appeal because 
the Petitioner did not establish the Beneficiary's position in the U.S. is in a managerial or executive 
capacity. 
I. LEGAL FRAMEWORK 
To establish eligibility for the L-IA nonimmigrant visa classification, a qualifying organization must 
have employed the beneficiary in a managerial or executive capacity for one continuous year within 
three years preceding the beneficiary's application for admission into the United States. 8 C.F.R. 
§ 214.2(1)(3)(v)(B). In addition, the beneficiary must seek to enter the United States temporarily to 
continue rendering his or her services to the same employer or a subsidiary or affiliate thereof in a 
managerial or executive capacity. Id. 
1 The Petitioner previously filed a "new office" petition on the Beneficiaiy 's behalf which was approved for the period 
January 23, 2019 until January 22, 2020. 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 manageri al position . 
A petitioner seeking to extend an L-lA 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 sole issue to be addressed is whether the Petitioner established that it would employ the 
Beneficiary in an executive capacity under the extended petition. The Petitioner has not claimed that 
the Beneficiary's position is managerial in nature. 
"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 101 (a)( 44 )(B) of the 
Act. 
When examining the executive capacity of a given beneficiary, we will look to the petitioner's 
description of the job duties. 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 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. Duties 
To be eligible for L-lA nonimmigrant visa classification as an executive, the Petitioner must show 
that the Beneficiary will perform the high-level responsibilities set forth in the statutory definition at 
section 10l(a)(44)(B)(i)-(iv) of the Act. If the record does not establish that the offered position meets 
all four of these elements, we cannot conclude that it is a qualifying executive position. 
If the Petitioner establishes that the offered position meets all elements set forth in the statutory 
definition, 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. See Family 
Inc. v. USCIS, 469 F.3d 1313, 1316 (9th Cir. 2006). In determining whether a given beneficiary's 
duties will be primarily executive, we consider the petitioner's description of the job duties, the 
company's organizational structure, the duties of a beneficiary's subordinate employees, the presence 
of other employees to relieve the beneficiary from performing operational duties, the nature of the 
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business, and any other factors that will contribute to understanding a beneficiary's actual duties and 
role in a business. 
The Petitioner has provided few details and little supporting evidence to support that the Beneficiary 
would likely be primarily engaged in executive-level tasks. Whether a beneficiary is an executive 
employee turns on whether the petitioner has sustained its burden of proving that their duties are 
"primarily" executive. See sections 101 (a)( 44 )(B) of the Act. Here, the Petitioner does not sufficiently 
document what proportion of the Beneficiary's duties would be executive functions and what 
proportion would be non-qualifying. The Petitioner lists the Beneficiary's duties as including several 
administrative or operational tasks. For this reason, we cannot determine whether the Beneficiary 
would primarily perform the duties of an executive under an approved petition. See IKEA US, Inc. v. 
US. Dept. of Justice, 48 F. Supp. 2d 22, 24 (D.D.C. 1999). 
At the time of filing, the Petitioner claimed to have 3 employees and $230,000 in gross earnings. The 
Petitioner explained that it imports "quality and collectible pieces of art from Zimbabwe to the United 
States of America, encompassing oil paintings, pencil sketches, water-colors and photographic and 
giclee prints and in particular Shona Sculpture." 
In response to the request for evidence, the Beneficiary explained that he performs in an executive 
capacity and stated that he spends 30 percent of his time on strategic operations and planning actions 
and is responsible for "approval of all strategic organizational documents, conceive and implement 
the firm's strategy and mission, develop business partnerships, prepare and implement company-wise 
policies, and hire ( or terminate) various executive consultants and management consultants." The 
Beneficiary's duties include several general duties that can be performed for any company, and the 
Petitioner does not explain the business strategies and methodologies the Petitioner will develop, or 
the objectives and goals of the company, or the impact of the business partnerships. 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). 
In addition, several of the duties appear to be non-qualifying operational duties such as the 10 percent 
of time the Beneficiary will spend on strategic marketing actions. For example, the Beneficiary 
decided to "transition from a web portal presence to an e-commerce website with social media 
presence and point of sale capability." He will also spend 20 percent of his time on strategic logistics 
and operations actions such as "improve the quantity, style and stone for purchase and shipment from 
our Zimbabwe affiliate" and "review the annual projections, costs and materials, conversion variances, 
and costs of personnel, shipment and other expenses, and develop pricing policies for our products." 
The Beneficiary will also "prepare the master budget for the company," make "some short-term 
decisions about purchases and expenditures;" and "review the shipping and warehouse policies." The 
Beneficiary also stated that he is responsible for strategic human resources action as the "sole authority 
to approve [the Petitioner's] human resource policies;" and will "field highly trained professional 
staff' and "oversee the training of my senior marketing staff." Many of these duties involve the day 
to day operations of running a business such as research, marketing, client relations, customer service, 
and employee development and training. In addition, the Petitioner does not sufficiently explain the 
role of the staff to determine if they will relieve the Beneficiary from performing the operational duties. 
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Without more information, it appears that the Beneficiary will perform several operational duties and 
will not perform duties that are primarily executive in nature. 
The Petitioner also submitted a list of "2020 executive duties" that are general in nature and include 
several non-qualifying administrative and operational duties. For example, the Beneficiary will 
"identify and approve promotional and marketing channels;" "review sales analyses to identify, 
prioritize and approve the most successful sales outlets;" "develop distribution policy to ensure timely 
shipments to customer;" "identify and resolve corporate systemic issues;" "randomly inspect 
employee product handling to ensure high product quality standards are maintained;" "conduct annual 
employee performance reviews with primary staff;" "hire and mentor primary staff;" "create sculpture 
Garden Landscaping Sales Segment;" and "key person responsibility." The Petitioner did not explain 
with sufficient detail how the Beneficiary will perform these tasks. Further, the tasks require 
budgeting, client relations, human resources, and shipping tasks that appear to be operational and not 
executive in nature. Without further information regarding the specific tasks, it is difficult to conclude 
that the Beneficiary is acting primarily in an executive capacity. 
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." Section 10l(a)(44)(B) of the Act. The Petitioner stated that the Beneficiary will 
be the "key person" for the Petitioner. However, this vague phrase does not explain the actual 
underlying tasks that the Beneficiary would carry out on a daily basis. Aside from establishing that 
the Beneficiary has discretion over operational and policy matters, it is unclear precisely what the 
Beneficiary would be doing. 
Although the Beneficiary holds a senior position within the organization, the fact that he will manage 
or direct a business does not necessarily establish eligibility for classification as an intracompany 
transferee in an executive capacity within the meaning of section 101 (a)( 44 )(B) of the Act. By statute, 
eligibility for this classification requires that the duties of a position be "primarily" executive in nature. 
Id. 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; however, the position 
descriptions alone are insufficient to establish that his actual duties would be primarily executive in 
nature. 
B. Staffing and Organizational Structure 
If staffing levels are used as a factor in determining whether an individual is acting in an executive 
capacity, we take into account the reasonable needs of the organization, in light of the overall purpose 
and stage of development of the organization. See section 101 (a)( 44 )( C) of the Act. 
As noted, the Petitioner claims the Beneficiary would act in an executive capacity in the United States. 
The statutory definition of the term "executive capacity" focuses on a person's elevated position within 
a complex organizational hierarchy, including major components or functions of the organization, and 
that person's authority to direct the organization. Section 101(a)(44)(B) of the Act. Under the statute, 
a beneficiary must have the ability to "direct the management" and "establish the goals and policies" 
of that organization. Inherent to the definition, the beneficiary must primarily focus on the broad goals 
and policies of the organization rather than the day-to-day operations of the enterprise. An individual 
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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." 
Id. 
At the time of filing the instant petition, the Petitioner submitted an organizational chart of the U.S. 
entity that indicated the Beneficiary would supervise a personal assistant, a chief financial 
officer/human resources, e-commerce, exhibition and events coordinator, administrator, and six part­
time operations support staff The organizational chart also lists legal advisors, business advisors, an 
accounting firm and "external contractors." The organization chart also listed two positions that are 
vacant which are marketing director and operations manager. In response to the RFE, the Petitioner 
provided an updated organizational chart that indicated the U.S. entity employed two consultants, two 
permanent employees and two part-time employees. The permanent employees are the Beneficiary, 
the CFO/HR Director, and the marketing director who is "in progress" and "doing a trial period." The 
two part-time employees are an exhibition director/CEO's administrative assistant and the 
administrator. 
Regarding the two business advisors listed in the organizational chart, the Petitioner submitted two 
documents entitled, "Business Advisor's Agreement," between the Petitioner and two different 
advisors. Both agreements list general duties to be provided by the advisor such as "examine the 
current activities of business of the organization; monitor local businesses and establish methods for 
future development; provide appropriate advice related to the techniques which will help in the 
improvement of the organization, making it more generative and eminent." The agreements stated 
that the Petitioner will pay an initial retainer of $2000 and "the parties agree that further compensation 
will be paid when [the Petitioner] becomes profitable, at which time compensation will be paid at a 
rate of $200 per hour." Thus, it is not clear if these consultants are currently providing services to the 
Petitioner and it has not presented evidence to clearly identify the services they provide. The Petitioner 
has also not explained how the services of the contracted employees relieve the Beneficiary from 
performing non-qualifying duties related to running the business. A petitioner's unsupported 
statements are of very limited weight and normally will be insufficient to carry its burden of proof: 
particularly when supporting documentary evidence would reasonably be available. The Petitioner 
must support its assertions with relevant, probative, and credible evidence. See Matter of Chawathe, 
25 I&N Dec. 369,376 (AAO 2010). 
The Petitioner also submitted an unsigned offer of employment for the administrator position that 
listed the duties as "handling external or internal communication or management systems; organizing, 
arranging and coordinating meeting; create and update records and database with personnel, financial 
and other data; keep track of inventory; maintain the bank account; payments to relevant parties; and 
other duties that the CFO may require." The offer also stated that the compensation "will be $200 per 
month." In addition, the Petitioner submitted a few invoices from the exhibition director/CEO's 
administrative assistant but did not clearly indicate the works performed and the amount of time she 
is working for the Petitioner. The Petitioner stated these positions were part-time but did not indicate 
how many hours per month these employees are providing services for the Petitioner. 
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Furthermore, upon review of the Petitioner's income statement as of December 31, 2019, it stated that 
$24,138 was paid in salaries and wages for that year, and consulting fees were paid. Thus, it is not 
clear how the Petitioner has two foll-time employees, two part-time employees, and consultants when 
only $24,138 was spent in salaries and wages for the year. The Petitioner does not provide sufficient 
evidence to explain these inconsistencies. 
On appeal, the Petitioner asserts that the Director did not consider the reasonable needs of the 
organization. Pursuant to section 101(a)(44)(C) of the Act, 8 U.S.C. § 1101(a)(44)(C), 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. 
In the present matter, however, the regulations provide strict evidentiary requirements for the 
extension of a "new office" petition and require USCIS to examine the organizational structure and 
staffing levels of the Petitioner. See 8 C.F.R. § 214.2(1)(14)(ii)(D). The regulation at 8 C.F.R. 
§ 214.2(1)(3)(v)(C) allows the "new office" operation one year within the date of approval of the 
petition to support an executive or managerial position. There is no provision in USCIS regulations 
that allows for an extension of this one-year period. If the business does not have sufficient staffing 
after one year to relieve the Beneficiary from primarily performing operational and administrative 
tasks, the Petitioner is ineligible by regulation for an extension. In the instant matter, the Petitioner 
has not reached the point that it can employ the Beneficiary in a predominantly executive position. 
Taking into account the inconsistent evidence regarding the Petitioner's employees, and the general 
and brief job descriptions for each position, it is not clear how the employees will relieve the 
Beneficiary from performing administrative and operational duties rather than primarily performing 
executive duties. 
For the foregoing reasons, the Petitioner has not established that the Beneficiary would act in an 
executive capacity in the United States. 
III. CONCLUSION 
In visa petition proceedings, it is the petitioner's burden to establish eligibility for the immigration 
benefit sought. Section 291 of the Act, 8 U.S.C. § 1361. Here, the Petitioner has not met that burden. 
ORDER: The appeal is dismissed. 
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