dismissed L-1A Case: Transportation Vehicles

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: DEC. 12, 2024 In Re: 35560244 
Appeal of California Service Center Decision 
Form 1-129, Petition for a Nonimmigrant Worker (L-lA Manager or Executive) 
The Petitioner, a distributor of transportation vehicles and related parts, seeks to extend the Beneficiary's 
temporary employment as its director of operations under the L-lA nonimmigrant classification for 
intracompany transferees. 1 See Immigration and Nationality Act (the Act) section 101(a)(15)(L), 8 
U.S.C. § 1101(a)(15)(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 the Petitioner did not 
establish that the Beneficiary would be employed in a managerial or executive capacity under an 
extended petition. The matter is now before us on appeal. 8 C.F.R. § 103.3. 
The Petitioner bears the burden of proof to demonstrate eligibility by a preponderance of the evidence. 
Matter of Chawathe, 25 l&N Dec. 369, 375-76 (AAO 2010). We review the questions in this matter 
de novo. Matter of Christa's, Inc., 26 I&N Dec. 537,537 n.2 (AAO 2015). Upon de novo review, 
we will dismiss the appeal. 
I. LAW 
To establish eligibility for the L-lA 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 Beneficiary's behalf which was approved for a one-year 
period ending on June 11, 2024. A "new office" is an organization that has been doing business in the United States 
through a parent, branch, affiliate, or subsidiary for less than one year. 8 C.F.R. § 214.2(1)( 1 )(ii)(F). The regulation at 8 
C.F.R. § 214.2(1)(3)(v)(C) allows a "new office" operation one year within the date of approval of the petition to support 
an executive or managerial position. 
A petitioner seeking to extend an L-1 A 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 we will analyze is whether the Petitioner established that it would employ the 
Beneficiary in an executive capacity in the United States. The Petitioner does not claim that the 
Beneficiary would be employed in a managerial capacity. Therefore, we restrict our analysis to 
whether 
the Beneficiary would be employed in an executive capacity. 
"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 10l(a)(44)(B) of the 
Act. 
When examining the executive capacity of a given beneficiary, we will review the petitioner's 
description of the job duties. The petitioner's description of the job duties must clearly describe the 
duties to be performed by the beneficiary and indicate whether such duties are in an executive capacity. 
See 8 C.F.R. § 214.2(1)(3)(ii). 
A. Duties 
To be eligible for L-lA nonimmigrant visa classification as an executive, a 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 a petitioner establishes that the offered position meets all elements set forth in the statutory 
definition, it must prove that the beneficiary will be primarily engaged in executive duties, as opposed 
to ordinary operational activities alongside its 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 business, and any other 
factors that will contribute to understanding a beneficiary's actual duties and role in a business. 
The Petitioner indicated that the Beneficiary was transferred to the United States to establish its 
operations as a manufacturer and distributor of buses and shuttles and to act as a bridge between its 
parent company in Brazil and the parent company's manufacturing facility in Mexico. The Petitioner 
indicated that as director of operations the Beneficiary was "instrumental in establishing critical 
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partnerships and laying the groundwork for [its] success in the competitive U.S. market" and 
"implementing strategic initiatives." The Petitioner stated that the Beneficiary would "continue to 
direct the management ... from marketing strategy to finance marketing," "oversee and refine the 
company's operational strategies," and manage supplier relations, including "overseeing purchase 
orders, payments, inventory, as well as orchestrating imports and exports." The Petitioner submitted 
the following duty description for the Beneficiary under an extended petition: 
Directing all [Petitioner] US business activities to ensure timely product delivery by 
managing staff workload: It includes managing staff workload, coordinating tasks, and 
addressing obstacles that may hinder timely delivery. 30% of his time. 
Managing department managers to ensure deliverables meet proposed schedules and 
time lines: It includes providing guidance, support and resources as needed to facilitate 
successful project completion. 15% of his time. 
Directing business development, managing proposal schedules and deadlines, and 
reviewing proposal outlines: This involves overseeing the proposal process from start 
to finish. It includes managing proposal personnel, ensuring that proposal schedules 
and deadlines are being met, and reviewing proposal outlines to ensure accuracy and 
completeness. 20% of his time. 
Directing [the Petitioner's] US goals, policies, and procedures, and overseeing their 
execution. This task involves setting and communicating the company's goals, 
policies, and procedures, and ensuring that they are effectively implemented and 
followed throughout the organization. 10% of his time. 
Evaluating [ the Petitioner's] US performance, policies and programs based on financial 
and sales reports: This task involves analyzing financial statements and sales reports 
to assess the performance of the company, its policies, and its programs. It includes 
areas for improvement and making recommendations for enhancement. 15% of his 
time. 
Analyzing [the Petitioner's] US business processes through SWOT analysis and 
recommending improvements: It includes making recommendations for process 
enhancements to increase efficiency and effectiveness. 10% of his time. 
The Petitioner submitted a duty description and supporting documentation indicating that the 
Beneficiary was primarily involved in performing non-qualifying operational duties as of the date the 
petition was filed. For instance, the Beneficiary's duty description reflects that he would spend 30% 
of his time ensuring the timely delivery of goods and overcoming obstacles hindering deliveries, 15% 
of his time ensuring that deliverables meet proposed schedules, and 20% on managing proposals and 
making sure proposal deadlines are being met. In sum, the duty description appears to reflect that the 
Beneficiary would be primarily devoted to performing duties related to the Petitioner's provision of 
goods and services. 
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This conclusion is further supported by submitted documentation showing the Beneficiary performing 
non-qualifying operational tasks just prior to and after the date the petition was filed in June 2024. 
For example, the Petitioner provided a document reflecting different Beneficiary action items in 
October 2024 indicating that he was responsible for securing state manufacturing licenses, 
implementing design and cost changes on a particular vehicle model, securing warranty coverage, 
dealing with department of transportation violations related to its vehicles, and addressing quality 
concerns. Likewise, the Petitioner submitted emails from August 2024 showing the Beneficiary 
arranging the delivery of vehicles and other emails from July 2024 discussing a change to linoleum 
flooring in a particular vehicle model. The Petitioner also provided additional emails dated in June 
2024 reflecting the Beneficiary coordinating potential luggage space on a vehicle model and others 
from May 2024 showing him attending a sales meeting in Indiana, discussing electronic components 
on a vehicle model, and arranging the issuance of purchase orders. In addition, the Petitioner 
submitted emails from April 2024 reflecting the Beneficiary handling a leak defect in a vehicle and 
scheduling orders and deliveries. Therefore, in total, the supporting documentation on the record, 
dated after and near to the date the petition was filed, suggests the Beneficiary's direct involvement in 
nearly all the operational matters of the business. 
Whether the 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 were 
executive-level functions when the petition was filed and what proportion were non-qualifying 
operational tasks. The Petitioner submitted duties for the Beneficiary and supporting evidence 
indicating his direct involvement in numerous administrative or operational tasks, but it did not 
sufficiently quantify the time he spent on these duties as compared to qualifying executive-level duties. 
For this reason, we cannot determine whether the Beneficiary was primarily performing the duties of 
an executive as of the date the petition was filed. See IKEA US, Inc. v. US. Dept. ofJustice, 48 F. 
Supp. 2d 22, 24 (D.D.C. 1999). 
In contrast, the Petitioner did not sufficiently articulate or document what executive-level tasks he was 
performing when the petition was filed. The submitted evidence reflects that the Petitioner was not 
sufficiently operational to allow the Beneficiary to perform several of the asserted executive-level 
tasks included in his duty description, such as managing department managers, directing goals, 
policies, and procedures, or implementing process enhancements to increase efficiency and 
effectiveness. The Petitioner also did not sufficiently detail and document the departments he was 
overseeing or the goals, policies, and procedures he had set. The Petitioner further provided minimal 
supporting evidence to substantiate that he was primarily delegating operational tasks to subordinates 
when the petition was filed, as his duty description suggests. 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 ofreiterating 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). 
Even though 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 10l(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 
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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. Operations and Staffing 
Pursuant to section 101 (a)(44)(C) of the Act, if staffing levels are used as a factor in determining 
whether an individual is acting in an 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 Form I-129, Petition for a Nonimmigrant Worker, the Petitioner indicated it had three employees 
as of the date the petition was filed and a most recent IRS Form 941, Employer's Quarterly Federal 
Tax Return from the first quarter of 2024 reflected it had two employees. The Petitioner submitted an 
organizational chart showing that it employed a business development manager and a mechanic 
subordinate to the Beneficiary. The Petitioner also provided a projected organizational chart for its 
second year of operations showing that it planned on hiring a sales representative, another mechanic, 
and an after sales engineer. 
On appeal, the Petitioner contends the Director erred by focusing on its staffing, suggesting that this 
is not required when asserting eligibility in an executive capacity. We disagree. The regulations 
provide strict evidentiary requirements for the extension of a "new office" petition and require us 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) only allows the "new office" 
operation one year within the date of approval of the petition to support an executive position. There 
is no provision in USCIS regulations that allows for an extension of this one-year period. If a business 
does not have the necessary staffing after one year to sufficiently relieve the beneficiary from 
performing operational and administrative tasks, the petitioner is ineligible by regulation for an 
extension. 
As discussed, the Petitioner asserts that the Beneficiary would have qualified as an executive under an 
approved extension. The statutory definition of the term "executive capacity" focuses on a person's 
elevated position. Under the statute, a beneficiary must have the ability to "direct the management" 
and "establish the goals and policies" of an organization or major component or function 
thereof. Section 101(a)(44)(B) of the Act. To show that a beneficiary will "direct the management" 
of an organization or a major component or function of that organization, a petitioner must show how 
the organization, major component, or function is managed and demonstrate that the beneficiary 
primarily focuses on its broad goals and policies, rather than the day-to-day operations of such. An 
individual will not be deemed an executive under the statute simply because they have an executive 
title or because they "direct" the organization, major component, or function 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. 
The submitted evidence and statements of the Petitioner reflect that it had limited operations as of the 
time the petition was filed leaving substantial uncertainty as to whether it was supporting the 
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Beneficiary in an executive capacity at this time. As discussed, the Petitioner provided an 
organizational chart indicating that the Beneficiary had only two subordinates when the petition was 
filed, neither of whom worked in a management capacity. As we discussed at length, the Petitioner 
submitted substantial supporting documentation reflecting the Beneficiary's involvement in nearly all 
the operational aspects of the business, such as securing state manufacturing licenses, implementing 
design and cost changes, securing warranty coverage, dealing with department of transportation 
violations, addressing quality concerns, arranging the delivery of vehicles, coordinating designs on 
vehicles, attending sales meetings, amongst other non-qualifying tasks. There is little evidence to 
support a conclusion that the Beneficiary was primarily delegating these non-qualifying tasks to his 
two subordinates when the petition was filed in June 2024. 
The Petitioner had yet to hire subordinates to perform these duties reflected in the supporting evidence, 
such as the sales representatives and sales engineers it planned to hire during its second year of 
operations, and there is little supporting evidence to substantiate that the newly hired business 
development manager was primarily relieving the Beneficiary of operational tasks when the petition 
was filed. There is also little evidence reflecting the Beneficiary's direction of his subordinates or his 
oversight of subordinate managers and departments, as discussed in his duty description. Further, the 
Petitioner submitted few specifics and little documentation to support the Beneficiary's primary 
performance of qualifying executive-level duties, such as his implementation of goals, policies, and 
procedures. Therefore, the Petitioner did not sufficiently establish that the Beneficiary was directing 
the management of the Petitioner and primarily focused on its broad goals and policies when the 
petition was filed, rather than the day-to-day operations. 
In addition, supporting emails on the record leave further question as to the Beneficiary's claimed 
executive-level role. For instance, an email from June 2024 lists the Beneficiary's title as 
"Commercial Operations Consultant for the External Market- USA Division" and does not show his 
claimed title of director of operations. Likewise, the Beneficiary's 2023 performance review, issued 
in June 2024, discusses "limited staff resources" and his "sales targets," indicating that he was acting 
in more of a sales role in the United States when the petition was filed. The Beneficiary also stated in 
the performance review that he was "ready to take on a coordination position," "aiming for a 
management position," and that "in the future" he would be ready for an "executive management 
position." This evidence along with the documentation reflecting his wide performance of operational 
tasks when, and after, the petition was filed indicates he was not likely acting in an executive-level 
position when extension was filed. The Petitioner must resolve inconsistencies and ambiguities in the 
record with independent, objective evidence pointing to where the truth lies. Matter ofHo, 19 I&N 
Dec. 582, 591-92 (BIA 1988). 
For the foregoing reasons, the Petitioner has not sufficiently established that the Beneficiary would be 
employed in an executive capacity under an extended petition. 
ORDER: The appeal is dismissed. 
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