dismissed L-1A Case: Software Development

U.S. Citizenship 
and Immigration 
Services 
MATTER OF N- LLC 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: JAN. 26,2017 
APPEAL OF CALIFORNIA SERVICE CENTER DECISION 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a software development company, seeks to temporarily employ the Beneficiary as the 
chief executive officer under the L-1 A nonimmigrant classification for intracompany transferees. 
See Immigration and Nationality Act (the Act) section 101(a)(15)(L), 8 U.S.C. § 110l(a)(15)(L). 
The L-1 A 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, California Service Center, denied the pet1t10n. The Director concluded that the 
Petitioner did not submit sufficient evidence to establish that the Beneficiary would be employed in 
the United States in a managerial or executive capacity. 
The matter is now before us on appeal. In support of the appeal, the Petitioner submits a brief 
disputing the basis for denial. 
Upon de novo review, we will dismiss the appeal. 
I. LEGAL FRAMEWORK 
To establish eligibility for the L-1 nonimmigrant visa classification, a qualifying organization must 
have employed the Beneficiary in a managerial or executive capacity, or in a specialized knowledge 
capacity, for 1 continuous year within 3 years preceding the Beneficiary's application for admission 
into the United States. Section 101(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 affiliate thereof in a managerial, executive, or specialized knowledge capacity. !d. 
The regulation at 8 C.F.R. § 214.2(1)(3) states that an individual petition tiled on Form I-129, 
Petition for a Nonimmigrant Worker, shall be accompanied by: 
(i) Evidence that the petitioner and the organization which employed or will 
employ the alien are qualifying organizations as defined in paragraph 
(1)(1)(ii)(G),ofthis section. 
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Matter of N- LLC 
(ii) 
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(iii) 
(iv) 
Evidence that the alien will be employed in an executive, managerial, or 
specialized knowledge capacity, including a detailed description of the 
services to be performed. 
Evidence that the alien has at least one continuous year of full-time 
employment abroad with a qualifying organization within the three years 
preceding the filing of the petition. 
Evidence that the alien's prior year of employment abroad was in a position 
that was managerial, executive or involved specialized knowledge and that the 
alien's prior education, training, and employment qualifies him/her to perform 
the intended services in the United States; however, the work in the United 
States need not be the same work which the alien performed abroad. 
II. U.S. EMPLOYMENT IN A MANAGERIAL OR EXECUTIVE CAPACITY 
The Director denied the petition based on a finding that the Petitioner did not establish that the 
Beneficiary will be employed in a managerial or executive capacity. The Petitioner does not claim 
that the Beneficiary will be employed in a managerial capacity. Therefore, we restrict our analysis 
to whether the Beneficiary will be employed in an executive capacity. 
' Section 101(a)(44)(B) of the Act, 8 U.S.C. § 1101(a)(44)(B), defines the term "executive capacity" 
as "an assignment within an organization in which the employee primarily": 
(i) 
(ii) 
(iii) 
(iv) 
directs the management of the organization or a major component or function 
of the organization; 
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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. 
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. See section 1 01(a)( 44)(C) of the Act. 
The Petitioner filed the Form 1-129 on April 18, 2016 claiming that it was established in 2013 and 
that it currently has no employees. In a supplemental statement the Petitioner explained that it was 
originally established for the purpose of providing consulting services in software development and 
IT project management. The Petitioner further stated that it "was used mainly as a transaction 
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(b)(6)
Matter of N- LLC 
company to handle client support, cons~lting contracts, and documents while active operations and 
activities were performed by the parent company in Mexico." The Petitioner claimed that it 
now plans to expand its operation to include installation, hardware integration, and cloud services 
and that such service will involve the use of engineers, software architects, developers, and 
integrators, some of whom are located in Mexico. The Petitioner stated that it plans to hire three 
employees within the first year of the Beneficiary's arrival "with a gradual expansion of employees 
in the following years." The Petitioner did not state which positions it plans to fill or the services to 
· be provided by the new hires. The Petitioner stated that the Beneficiary's responsibilities would 
include "establishing and maintaining the company's clientele," overseeing the business's growth 
and development, determining goals and objectives, and making discretionary decisions regarding 
the Petitioner's funding and operations, the latter of which would include consideration of-the 
Petitioner's technical capabilities, purchase of equipment, and use of company resources. 
After reviewing the record, the Director issued a request for evidence (RFE) informing the Petitioner 
that it did not provide sufficient evidence to establish that the Petitioner's organizational structure at 
the time of filing was sufficient to employ the Beneficiary in an executive capacity. The Director 
offered the Petitioner 
an opportunity to resolve this evidentiary deficiency by submitting, in part, an 
organizational chart depicting its employees and /the company's staffing levels as well as a statement 
describing the Beneficiary's proposed executive job duties, the percentage of time he would allocate 
to each job duty, and an explanation of hbw the Beneficiary would meet each prong of the four­
prong definition of executive capacity. The Director also asked the Petitioner to provide a summary 
of job duties to be performed by subordinate employees. 
In response, the Petitioner provided a statement claiming that ·it does not currently have 
"conventional employees" and instead operates through "a virtual platform " whereby its daily 
administrative and operational job duties are carried out by outsourced professionals to ensure the 
Petitioner's growth and cost-effective operation. The Petitioner stated that it outsources the 
following: (1) an accounting firm that carries out bookkeeping, invoicing, and tax services; (2) a 
corporate law firm, which bills the Petitioner hourly for legal services, such as contract underwriting, 
copyrights, and patents; (3) the parent company's engineers and sales people, who provide software 
development and cloud infrastructure services; and (4) independently contracted software 
developers. The Petitioner claimed that by virtue of overseeing "a group of managers that are 
employed either by the parent company or outsourced specialty firms" the Beneficiary is employed 
. . • I 
man executive capac1ty. 
In a separate statement , the Petitioner restated portions of the original job description, focusing on 
the Beneficiary's authority to make decisions on the following issues: improving the Petitioner's 
technical capabilities, purchasing equipment, using company resources, .and guiding the company's 
direction, profitability, marketing, and personnel. The Petitioner further stated that the Beneficiary 
will allocate 40% of his time to "development of the company," implementing policies and 
procedures, establishing long- and short-term goals, and ensuring the most efficient and effective 
mearis for meeting those goals; 35% of his time to managing the Petitioner ' s finances by overseeing 
purchases, contract negotiations, and maintaining vendor and c1;1stomer relationships; and 25% of his 
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Matter of N- LLC 
time to overseeing the review and research of data pertaining to the Petitioner's growth plan and 
outsourced contracted labor who carry out operational tasks. The Petitioner did not specify which 
tasks would be involved in "development of the company" or discuss what specific policies, 
procedures, and goals the Beneficiary would set. The Petitioner also did not explain who would 
actually engage in purchasing equipment, negotiating contracts, and conducting data research, 
despite claiming that the Beneficiary's role would be limited to overseeing these activities; nor did 
the Petitioner establish that maintaining vendor and customer relationships are executive-level tasks. 
In addition, the Petitioner stated the following: 
. . . . Additionally, [the Beneficiary] will be responsible for reviewing company 
compliance including tax and other legal requirements to ensure the company's 
contract terms, standards, and obligations are fulfilled and completed. To carry out 
and implement his duties, he will have regular meetings and review sessions during 
which he will set mid-range plans for the company, define performance indicators 
with measurable objectives, review both operational and financial progress, define 
capacity in the event demand grows, and assess the annual sales forecast budget. To 
review performance, [the Beneficiary] will frequently compare his Revenue and 
Profit forecasts and budget plan to the actual sales, expenses and capital investment to 
make sure the company is on track to meet its goals. . . . Accounting software is used 
to compare previous financial performance against current results and future 
expectations for both profit and budget. 
A typical day for [the Beneficiary] as Chief Executive might include several meetings 
with potential clients, vendors, and partners. Risk management and performance 
evaluation will also be an active daily process for [the Beneficiary]. 
Although the Petitioner claimed that the Beneficiary would oversee the Petitioner's tax compliance 
and adherence to contractual agreements, it did not provide evidence to establish that it has staff to 
comply with tax requirements and contractual obligations. The Petitioner also did not specify who 
would participate in the "regular meetings and review sessions" with the Beneficiary; nor did the 
Petitioner clarify what data would be used as the basis for the Beneficiary's risk management and 
performance evaluation or, who would generate such data .. 
The Petitioner also provided an organizational chart showing that its hierarchy would be comprised 
of an outsourced accounting firm, the foreign entity's engineering and sales staff, professional 
freelance developers, and a corporate legal firm. In support of information provided in the chart, the 
Petitioner provided resumes of the foreign entity's general manager of software development and its 
' cloud infrastructure manager, respectively. We note that neither resume indicated that either 
employee was performing work for the Petitioner, nor did the Petitioner provided other evidence to 
show that it allocated funds to pay the foreign entity's employees for services it claims they have 
been providing for the benefit of the Petitioner's clientele. The Petitioner also did not provide any 
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Matter of N- LLC 
documentation to support the claims made with regard to outsourcing services for software 
development, accounting, and legal work. 
The Director determined that neither the Beneficiary's job description nor its organizational chart 
established that the Beneficiary would be employed in an executive capacity. Rather, the Director 
found that a number of the duties that were attributed to the Beneficiary's proposed position were 
not those typical of an executive, and further noted that the lack of employees available to staff the 
Petitioner indicates that the Petitioner's organizational structure is not sufficient to elevate the 
Beneficiary's position to that of an executive. 
Upon review of the petition and the evidence of record, including materials submitted in support of 
the appeal, we conclude that the Petitioner has not established that the Beneficiary would be 
employed in an executive capacity. 
When examining the executive capacity of the Beneficiary, we will look first to the description of 
the job duties. See 8 C.P.R. § 214.2(l)(3)(iv). The duties themselves will reveal the true nature of a' 
,beneficiary's employment. Fedin Bros. Co ... Ltd. v. Sava, 724 F. Supp. 1103, 1108 (E.D.N.Y. 1989), 
affd, 905 F.2d 41 (2d. Cir. 1990). Therefore, we look for a job description that clearly describes the 
Beneficiary's proposed job duties. 
\ 
The definition of executive capacity has two parts. First, the Petitioner must show that the 
Beneficiary performed 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 would primarily be engaged in executive duties, as opposed to ordinary operational 
activities alongside the company's other employees. See Family Inc. v. USCJS, 469 F.3d 1313, 1316 
' (9th Cir. 2006); Champion World, 940 F.2d 1533. 
/ 
In the present matter, the Petitioner did not provide a specific list of the Beneficiary's proposed 
executive job duties as requested in the RFE. As discussed· above, the Petitioner provided vague 
statements about the Beneficiary's proposed position without specifying actual daily tasks or 
assigning time allocations to individual activities such that would lead to a meaningful 
understanding as to the portion of the Beneficiary's time that would be allocated to executive-level 
tasks. As previously stated, a detailed job description that delineates specific tasks is critical, as the 
duties themselves reveal the true nature ofthe employment. Fedin Bros., 724 F. Supp. at 1108. 
Further, while the Petitioner states that the Beneficiary will assume the top-most position with the 
organizational hierarchy and make discretionary decisions on the Petitioner; s behalf, neither his 
placement within the organization, nor his decision-m51king authority would be sufficient to establish 
that the nature of the Beneficiary's underlying job duties would be primarily that of an executive. 
The Petitioner's emphasis on the Beneficiary's use of discretionary authority is meaningless unless 
placed in a context of executive job duties that the Beneficiary would typically carry out on a daily 
basis. Further, we note that the organizational chart the Petitioner provided in response to the RFE 
does not specifically depict the Beneficiary nor any ·other employees; rather, the chart seemingly 
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(b)(6)
Matter of N- LLC 
divides the organization into four departments - accounting firm, , professional developers, 
and corporate legal firm - without naming any individuals who would be assigned to carry out the 
operational and administrative tasks of the organization. Also, despite claiming that it would 
outsource its daily operational and administrative tasks to employees of the foreign eqtity, freelance 
developers, an accounting firm, and a law firm, the only evidence the Petitioner provided to support 
its assertion included the resumes of the foreign entity's general manager of software development 
and its cloud infrastructure manager. However , the resumes alone do not establish that either 
employee provided and would provide IT services for the benefit of the Petitioner ' s clients. The 
Petitioner also provided no evidence to show that it has retained the services of any freelance 
developers or that it paid an outside law firm and accounting firm to carry out other daily operational 
and administrative tasks. 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. See Matter of So.ffici, 22 I&N Dec. 158, 165 (Comm'r 
1998) (citing Matter of Treasure Craft of Cal., 14 I&N Dec. 190 (Reg'] Comm'r 1972)); see also 
Matter ofChawathe , 25 I&N Dec. 369, 376 (AAO 2010). The Petitioner must support its assertions 
with relevant
, probative , and credible evidence . See Matter ofChawathe , 25 I&N Dec. at 376. 
In addition, while the Petitioner indicated that it plans to hire three employees within the 
Beneficiary's first year of employment in the United States, the Petitioner's eligibility must be based 
on the facts and circumstances that existed at the time of filing. Based on the information provided 
in the petition itself, the Petitioner did not claim any employees when it filed the petition. A visa 
petition may not be approved based on speculation of future eligibility or after a petitioner or 
beneficiary becomes eligible under a new set of facts. See,, e.g, Matter of Michelin Tire Corp., 17 
I&N Dec. 248 (Reg'l Comm ' r 1978); Matter ofKatigbak, 14 I&N Dec. 45, 49 (Comm'r 1971). 
Moreover, 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, 8 U.S.C. § 1101(a)(44)(B). 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 a 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 will not be deemed an exectJtive 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. 
On appeal, the Petitioner submits a brief in which it contends that the Director erroneously focused 
on lack of professional subordinates, thereby requiring the Petitioner to have in-house employees as 
a prerequisite to meeting the definition of executive capacity. The Petitioner asserts that 
independent contractors and outsourced professionals are sufficient to enable the Beneficiary to meet 
the statutory definition. We do not contest the Petitioner's assertion. We do, however, find that the 
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Matter of N- LLC 
Petitioner did not provide evidence to corroborate its claims regarding the retention of independent 
contractors and outsourced employees. Rather, a review of the record shows that neither the 
petition, which indicates that the Petitioner had no employees at the time of filing, nor the evidence 
of record demonstrates that the Beneficiary "presides over a group of managers that are employed 
either by the parent company or outsourced specialty firms," as claimed in the RFE response. As 
previously stated, the Petitioner's provision of job descriptions of individuals it claims to have 
outsourced is not sufficient to establish that, in fact, the Petitioner retained and would continue to 
retain the claimed individuals, who would ultimately relieve the Beneficiary from having to allocate 
his time primarily to the provision of operational and administrative tasks. See Matter of Soffici, 22 
I&N Dec. at 165. Therefore, despite the Petitioner's repeated references to outsourced personnel 
and its claims on appeal, the Petitioner has not established that at the time of filing the petition it was 
adequately staffed with a management tier that would elevate the Beneficiary to an executive level in 
which he would "direct[] the management ofthe.organization." Section 101(a)(44)(B)(i) ofthe Act. 
While the Petitioner is also correct in pointing out that there is no statutory provision that expressly 
imposes a requirement as to the number of in-house employees a petitioner must have to meet the 
definition of executive capacity, the Petitioner maintains the burden of demonstrating that its 
particular organizational hierarchy is sufficient to support the Beneficiary in an executive-level 
position. It is unreasonable to contend that the Petitioner would be able to elevate the Beneficiary to 
that high level without a management tier of employees or contractors to carry out the underlying 
nonexecutive duties of the organization. This is particularly true in the present matter, where the 
Petitioner merely claimed, but did not provide sufficient evidence to establish, that it retained the 
services of outside contractors to manage the organization and carry out its operational and 
administrative functions. If USCIS finds reason to believe that an assertion stated in the petition is 
not true, USCIS may reject that assertion. See, e.g, Section 204(b) ofthe 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). Applying 
this reasoning to the record in the present matter, we cannot conclude that the Petitioner had the 
ability to (1) relieve the Beneficiary from having to primarily perform non executive tasks necessary 
to provide the operational services of the organization and (2) elevate the Beneficiary to an executive 
level without objective evidence to show that it retained the necessary labor force as claimed. An 
employee who "primarily" performs the tasks necessary to produce a product or to provide services 
is not considered to be "primarily" employed in a managerial or executive capacity. See also, 
sections 101(a)(44)(A) and (B) of the Act (requiring that one "primarily" perform the enumerated 
managerial or executive duties); Matter of Church Scientology Int'l., 19 I&N Dec. 593, 604 
(Comm 'r 1988). 
In light of the above, we do not agree with the Petitioner's contention that the Director went "above 
and beyond the scope of the law" and instead find that the Petitioner did not supplement the record 
with sufficient evidence to demonstrate how, with no employees at the time of filing, the Petitioner 
would have the ability to support the Beneficiary in an executive capacity. ·we find that the 
Petitioner provided a deficient job description for the Beneficiary's proposed position and did not 
provide sufficient evidence to establish that the Beneficiary's role within the organization would be 
Matter of N- LLC 
that of an executive whose primary concern would be to direct the management of the organization 
and focus on the organization's broad goals and policies rather than its day-to-day operations. 
III. CONCLUSION 
The petition will be denied and the appeal dismissed for the above stated reason. In visa petition 
proceedings, the burden of proving eligibility for the benefit sought remains entirely with the 
petitioner. Section 291 of the Act, 8 U.S.C. § 1361. Here, that burden has not been met. 
ORDER: The appeal is dismissed. 
Cite as Matter o.fN- LLC, ID# 146921 (AAO Jan. 26, 2017) 
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