dismissed L-1A Case: Stone Distribution

U.S. Citizenship 
and Immigration 
Services 
MATTER OF C-F-D-, INC. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: MAY 9, 2019 
APPEAL OF CALIFORNIA SERVICE CENTER DECISION 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a marketer and distributor of artificial quartz stone and marble, seeks to continue the 
Beneficiary's temporary employment as its president under the L-lA nonimmigrant classification for 
intracompany transferees. See Immigration and Nationality Act (the Act) § 101(a)(l5)(L), 8 U.S.C. 
§ 1101(a)(l5)(L). The L-lA classification allows a corporation or other legal entity (including its 
affiliate or subsidiary) to transfer a qualifying foreign employee to the United States to work 
temporarily in a managerial or executive capacity. 
The Director of the California Service Center denied the petition, concluding that the record did not 
establish, as required, that the Petitioner will employ the Beneficiary in the United States in a 
managerial or executive capacity. 
On appeal, the Petitioner disputes the Director's findings, asserting that the Beneficiary will be 
employed in an executive capacity. 
Upon de novo review, we will dismiss the appeal. 
I. LEGAL FRAMEWORK 
To establish eligibility for the L-lA 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 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 or executive capacity. Id. 
II. U.S. EMPLOYMENT IN AN EXECUTIVE CAPACITY 
The primary issue to be addressed is whether the Petitioner established that the Beneficiary will be 
employed in an executive capacity. The Petitioner did not claim that the Beneficiaiy would be 
Matter of C-F-D-, Inc. 
employed in a managerial capacity; therefore, our analysis will address only the Petitioner's claim that 
the Beneficiary's proposed position would be in an executive capacity. 
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 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 
In a letter submitted in support of the petition, the Petitioner stated that the Beneficiary will occupy 
the executive position of president and will be responsible for the Petitioner's business operations and 
strategy. According to the Petitioner, the Beneficiary will have discretionary authority with respect to 
day-to-day operations and will report to the Chairman of the Board of Directors of the parent company 
in China. Her key oversight responsibilities will be as follows (including percentages of time): 
1. Establish the U.S. entity's long-term goals, growth strategies, plans and policies, in 
coordination with the Board of Directors of the parent company in China. (20%) 
• 
• 
• 
• 
Review reports including market and industry research, sales volume from 
prior years, customer and sales agents' feedback, and the parent company's 
production capacity and capabilities, in order to establish credible business 
goals. 
Ensure the Board has sufficient information necessary to perform their 
fiduciary duties and other governance responsibilities. 
Meet with the Board quarterly to determine if the U.S. entity is in 
accordance with its established goals and policies. 
Report to the Board on a regular basis regarding: the U.S. entity's business 
developments with cuITent and potential clients; establishing and 
maintaining long-term business relationships with U.S. companies; actual 
and projected earnings and profitability of the U.S. entity; identifying and 
generating new market demand or potential for quartz products in the U.S.; 
any cUITent and potential market demand shifts, and the impact of such 
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Matter of C-F-D-, Inc. 
shifts on the company's business endeavors; results of the entity's 
attendance at trade shows and industry exhibits. 
2. Provide strategic leadership for the U.S. entity, including developing and 
implementing strategies, setting the overall direction for the sales and marketing of 
the parent company's quartz products, and customer support of the parent's 
company's existing U.S. customers. (50%) 
• Direct and oversee all operations of the U.S. entity. 
• Set and adjust long-term and short-term business development and financial 
goals and objectives of the U.S. entity. 
• Responsible for approving the overall budget and establishing and 
monitoring the U.S. entity's overall profitability. Evaluate, develop, 
implement, and enforce policies and efforts towards achieving the U.S. 
entity's goals and improving its overall operation and effectiveness. 
• Direct the product sales strategies and contract negotiations for the parent 
company's products in the U.S. 
• Direct the effective and continuous business relationships with cun-ent U.S. 
customers, and direct the active search for new U.S. customers. 
• Direct the U.S. entity's staff regarding organizational structure, professional 
development, motivations, performance evaluation, disciplinaiy actions, 
compensation decisions, personnel policies and procedures. 
3. Develop a reliable cash-flow projection process and reporting mechanism, which 
includes minimum cash threshold to meet operating needs. (5%) 
• Review sales statistics and financial statements showing profit and loss to 
ensure the financial success of the U.S. entity. 
4. Manage and oversee entire workforce of the U.S. entity. (20%) 
• Determine staffing requirements and oversee personnel procedures. 
• Recruit, hire, and assign subordinate staff, including other Direct and 
oversee all operations of the U.S. entity. 
• Direct and supervise the work of subordinate professionals and manager­
level employees to ensure fulfillment of the goals of the U.S. entity. 
• Carry out meetings with key subordinate staff to review and discuss sales 
strategies and goals, approaches to contract negotiation and business 
development, and marketing and expansion strategies and goals. 
• Evaluate employee performance and make final employment-related 
decisions regarding hiring, training, compensation, benefits, and 
termination. 
5. Advise and make final decisions on any contracts negotiated and entered by the 
U.S. entity. (5%) 
• Oversee purchasing and sales contracts to ensure implementation of final 
decisions with respect to price, quantity, quality, delivery time, and fund 
flow of the mechanical equipment products. 
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Matter of C-F-D-, Inc. 
In a request for evidence (RFE), the Director stated that the Petitioner had not sufficiently described 
the Beneficiary's duties. The Director asked the Petitioner to explain how the Beneficiary's position 
meets the requirements of executive capacity. In response, the Petitioner provided a statement from 
the president that included a description of the Beneficiary's duties similar to that initially submitted. 
The Director denied the petition, finding that the Beneficiary's duties are not primarily executive, and 
that the Beneficiary does not oversee lower-level managers within the company. 1 
On appeal, the Petitioner asserted that the Beneficiary was previously employed in the U.S. and will 
continue to be employed in the position of president, which is the top position at the U.S. entity. The 
Petitioner stated that in this role, the Beneficiary will manage the entire U.S. operation and have 
oversight of its business strategy. 
The two job descriptions are similar to one another and each lack sufficient detail. For example, the 
job descriptions stated: "Direct and oversee all operations of the U.S. entity" and "Set and adjust long­
term and short-term business development and financial goals and objectives of the U.S. entity." The 
descriptions are so general that they could describe virtually any executive of senior management 
position with any company. They provide only vague information that focuses on the Beneficiary's 
discretionary authority, but says little about the actual tasks she will perform. Specifics are clearly an 
important indication of whether a beneficiary's duties are primarily executive 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). Reciting a 
beneficiaiy's vague job responsibilities or broadly-cast business objectives is not sufficient; the 
regulations require a detailed description of the beneficiary's daily job duties. The actual duties 
themselves will reveal the true nature of the employment. Id. Here, the Petitioner has not provided 
the necessary details; neither version of the job description provides much information about the actual 
tasks that the Beneficiary will perform for the company. 
In addition, the job descriptions resemble a general template. They stated, for instance, that the 
Beneficiaiy will "[m]anage and oversee entire workforce of the U.S. entity." It also contains a number 
of references to "subordinate employees." None of the two job descriptions provide substantive, 
verifiable details that can be reliably correlated to activities documented in the record. 
The job descriptions also stated "Ensure the Board has sufficient information necessary to perform 
their fiduciary duties and other governance responsibilities," "Meet with the Board quarterly to 
determine if the U.S. entity is in accordance with its established goals and policies," and "Report to 
the Board on a regular basis regarding .... " The record does not identify the Petitioner's or its parent's 
board of directors. 2 It is unclear how the Beneficiary will receive guidance and direction from 
unidentified board members. 
1 We will further address staffing issues below. 
2 In response to USCIS' RFE, the Petitioner provided a "To whom it may concern" letter dated June 11, 2018, which was 
endorsed by HB.L., Director of the parent company. The letter of suppmi identified HB.L. as a Director of the parent 
company. This letter is secondary evidence, consistent with the Beneficiary's job descriptions, but it is not first-hand 
evidence of directorship comparable, for instance, to articles of incorporation, board meeting minutes, by-laws, share 
certificates, or the foreign equivalent. 
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Matter of C-F-D-, Inc. 
The Petitioner has not established that the Beneficiary's duties are primarily executive in nature. 
B. Staffing and Organizational Structure 
The statut01y 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 
will not be deemed an executive under the statute simply because they have an executive title or 
because they "direct" the enterprise as an 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. 
The Petitioner claimed seven U.S. employees at the time of filing. The organizational chart identified 
the following structure: 
• President [ the Beneficiary] 
o Accounting/ Administration Contractor [I Financial Consulting 
Company] 
o Administrative Assistant [Open] 
o Sales Manager [PE.] 
■ Marketing Sales Contractor D Plus] 
■ Technical Sales Representative [MC.] 
o Operations Manager [ S. Q.] 
• Operations Associate [ G.R.] 
■ Operations Associate [CH] 
• Operations Associate [D.P.] 
• Operations Associate [G.X] 
• Warehouse Waste Management [Contractor] 
■ Logistics [Contractor] 
The organizational chart indicates that the Beneficiary would have direct authority over two U.S. 
subordinates with managerial titles - a sales manager and an operations manager. These titles 
themselves, however, do not inherently establish that the proffered position qualifies as executive. 
The initial evidence also included a copy of: ( 1) a summary of job positions and duties, educational 
and experience levels, and sala1y addendum for the Beneficia1y's subordinates; and (2) the Petitioner's 
employees bi-weekly and monthly pay stubs for the periods January 1, 2018 to January 15, 2018, and 
Janua1y 1, 2018 to January 31, 2018, respectively. The addendum for the Beneficiary's subordinates 
identified the following: 
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Matter of C-F-D-, Inc. 
• P.E., Sales Manager, Two years college and 15+ years of experience (equivalent to a 
Master's degree), with a salazy of $33,600 + commission per year; 
• MC, Technical Sales Representative, Bachelor's degree, plus 10+ years of sales 
experience, with a salaiy of $36,000 + commission per year; 
• I IPlus, Contractor, no education or experience provided, with a salazy $50 per slab + 
comm1ss10n; 
• S. Q., Operations Manager, Bachelor's degree, plus 1 0+ years of warehouse operation 
management experience, with a salazy of$40,000 per year; 
• G.R., Operations Associate, 6+ years of experience, with a salazy of $33,600 per year; 
• CH, Operations Associate, 8+ years of freight and sale experience, with a salary of 
$30,160 per year; 
• D.P., Operations Associate, 12+ years of experience in warehouse of shipping and 
forwarding, forklifting, delivery, and customer service, with a salary of $30, 160 per year; 
• G.X, Operations Associate, 3+ years of experience in warehouse of shipping and 
forwarding, forklifting, and delivery, with a salazy of $18,000 per year; 
• Warehouse Waste Management, Contractor, no education, experience or salazy provided; 
• Logistics, Contractor, no education, experience or salary provided; and 
• Q.F, I !Financial Consulting Company, Contractor, Ph.D. in Economics and 25+ 
years of experience, with a salary of $100 per hour. 
In the RFE, the Director requested more information about the Beneficiary's subordinates. In 
response, the Petitioner provided: (1) an organizational chart similar to that initially submitted; (2) an 
addendum for the Beneficiary's subordinates similar to that initially submitted; (3) a copy of the 
Beneficiary's subordinates' academic degrees and resumes; (4) a copy of the service agreements and 
invoices indicating that the Petitioner secured service providers for payroll processing, QuickBooks 
account reconciliation, shipping, tax filing, and waste disposal; and ( 5) the Petitioner's State of Illinois 
Form UI-3, Employer's Contribution and Wage Report, for first-quarter 2018. The organizational 
chart identified the following structure: 
• President [ the Beneficiary] 
o Accounting/ Administration Contractor __ ...... Financial Consulting 
Company] 
o Administrative Assistant [Z.Z.] 
o Sales Manager [ P.E.] 
■ Marketing/Sales Contractor ~ Plus] 
■ Technical Sales Representative [MC] 
o Operations Manager [ S. Q.] 
■ Operations Associate [ G.R.] 
• Operations Associate [CH] 
■ Operations Associate [D.P.] 
• Operations Associate [G.X] 
■ Warehouse Waste Management [Contractor] 
• Logistics [Contractor] 
The addendum for the Beneficiary's subordinates identified the following: 
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Matter of C-F-D-, Inc. 
• P.E., Sales Manager, Associate's degree and 15+ years of sales experience (equivalent to 
a Master's degree; 
• MC., Technical Sales Representative, Bachelor's degree, plus 10+ years of sales 
experience; 
• c=JPlus, Contractor, no education or experience provided; 
• S.Q., Operations Manager, Bachelor's degree, plus 10+ years of warehouse operation 
management experience; 
• G.R., Operations Associate, 6+ years of experience; 
• A. W, Operations Associate, 5+ years of experience; 
• D.P., Operations Associate, High School diploma and 12+ years of experience in 
warehouse of shipping and forwarding, forklifting, delivery, and customer service; 
• G.X, Operations Associate, High School diploma and 3+ years of experience in 
warehouse of shipping and forwarding, forklifting, and delivery; 
• Warehouse Waste Management, Contractor, no education or experience provided; 
• Logistics, Contractor, no education or experience provided; and 
• Q.F,I !Financial Consulting Company, Contractor, Ph.D. in Economics and 25+ 
years of experience. 
In denying the petition, the Director acknowledged the Petitioner's submission of an organizational 
chart, but found that the Petitioner did not provide an explanation of how the Beneficiary's 
subordinates' relieve her from performing non-qualifying duties. The Director concluded that the 
Petitioner did not show that it currently employs individuals that would relieve the Beneficiary from 
non-qualifying duties. 
On appeal, the Petitioner asserted that the Beneficiary would oversee two managerial or supervisory 
level workers directly and each would in turn oversee his or her own teams. Specifically, the 
Beneficiary would oversee a sales manager, an operations manager and an accounting and 
administrative contracting personnel. The Petitioner stated that each of the two subordinate managers 
oversees a team of individuals or contractors. 
An examination of the petitioner's staffing depicted in the record is not supported by evidence. For 
instance, the Petitioner claimed seven U.S. employees on Form 1-129, however, the Petitioner's 
organizational chart identified 13 employees. 
The Petitioner's organizational chart depicted a corporate structure in which the Beneficiary as 
president is in a position over an accounting/administrative contractor, an administrative assistant, a 
sales manager, and an operations manager. The accounting/administrative contractor, administrative 
assistant, sales manager, and operations manager are on the same level on the organizational chart. 
The accounting/administrative contractor and administrative assistant do not supervise any 
subordinate employees and the administrative assistant position is open. The sales manager is in a 
position over a marketing/sales contractor and a technical sales representative, who in turn do not 
supervise any subordinate employees. The operations manager is in a position over four operations 
associates, a warehouse waste management contractor, and a logistics contractor, who in turn do not 
supervise any subordinate employees. The marketing/sales contractor, technical sales representative, 
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Matter of C-F-D-, Inc. 
four operations associates, warehouse waste management contractor, and logistics contractor are on 
the same level on the organizational chart. The organizational chart submitted in response to the 
Director's RFE depicted the same structure. 
The record casts doubt on the veracity of the Petitioner's corporate structure. For instance, the 
Petitioner's initial organizational chart indicated that the position of administrative assistant was open as 
of the date of filing, however, the Petitioner's amended organizational chart indicated that the same 
position was occupied by Z.Z. Further, both organizational charts depicted a corporate structure in which 
the Beneficiary as president is in a position over various contractors, who in tum provide payroll 
processing, shipping, tax filing, and waste disposal services, to name a few, for the Petitioner. The 
Petitioner's service agreement indicated that it entered a 36-month commercial contract with I I I I Inc. for bi-weekly (one time per even week) non-hazardous waste materials 
removal at a rate of $56.63, which includes a base rate of $40.00, a fuel and environmental charge 
and regulatory cost recovery rate of$11.63, and an administrative rate of$5.00. The service agreement 
identified the Petitioner as a customer. The Petitioner's depiction of service providers in its corporate 
structure is misplaced as these services are comparable, for instance to routine business expenses: 
bookkeeping, Internet, janitorial, lease agreement, payroll processing, telephone, utilities, and water 
and sewage, to name a few. 
Additionally, the record does not support the Petitioner's use of contractors. For instance, IRS Form 
1099, Miscellaneous Income, instructions for Box 7, Nonemployee Compensation states: "Enter 
nonemployee compensation of $600 or more. Include fees, commissions, prizes and awards for services 
performed as a nonemployee, other forms of compensation for services performed for your trade or 
business by an individual who is not your employee, and fish purchases for cash. Include oil and gas 
payments for a working interest, whether or not services are performed. . . ." See 
https://www.irs.gov/pub/irs-pdf/i1099msc.pdf (last visited May 8, 2019). The record does not contain 
documentation: IRS Form 1099 or otherwise, corroborating the Petitioner's use of contractors. 
The Petitioner's organizational chaiis indicated that the position of sales manager is superior to the 
position of technical sales representative; however, these employees' pay stubs for the bi-weekly pay 
period January 1, 2018, to January 15, 2018, indicated that the sales manager received a salary of 
$1,400.00 for this pay period, while the subordinate position of technical sales representative received 
a salary of $1,500.00 for this pay period, which is higher than his superior. 
The Petitioner's organizational charts identified C.H. as its operations associate, while this employee's 
pay stub for the bi-weekly pay period March 16, 2018, to March 31, 2018, identified year-to-date 
amount of $3,047.63 for hourly and overtime earnings. However, the Petitioner's State of Illinois 
Form UI-3 for first-quarter 2018, the quarter in which the petition was filed, does not reference this 
individual as an employee. 
The Petitioner's addendum for the Beneficiary's subordinates indicated that the positions of sales 
manager and technical sales representative receive a base pay of $33,600 and $36,000, respectively, 
per year, plus commissions. However, these employees' pay stubs for the bi-weekly pay period 
January 1, 2018, to January 15, 2018, do not identify sales commissions for this pay period. 
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Matter of C-F-D-, Inc. 
Based on the deficiencies discussed above, the Petitioner has not established that the Beneficiary will 
be employed in an executive capacity under the extended petition. 
III. CONCLUSION 
The appeal will be dismissed for the above stated reasons. 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. The Petitioner has not met that burden. 
ORDER: The appeal is dismissed. 
Cite as Matter ofC-F-D-, Inc., ID# 2106975 (AAO May 9, 2019) 
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