dismissed L-1A Case: Wholesale

U.S. Citizenship 
and Immigration 
Services 
MATTER OF J-1- CO. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: JAN. 7, 2019 
APPEAL OF CALIFORNIA SERVICE CENTER DECISION 
PETITION: FORM 1-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a wholesale company, seeks to continue the Beneficiary's temporary employment as its 
president under the L-1 A nonimmigrant classification for intracompany transferees. 1 Immigration 
and Nationality Act (the Act) section 101(a)(l5)(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 that the record did not 
establish, as required, that the Beneficiary would be employed in a managerial or executive capacity 
under the extended petition. 
On appeal, the Petitioner submits additional evidence, asserts that the Director did not consider the 
previously submitted evidence in its totality, and contends that it met its burden to establish that the 
Beneficiary will be employed in an executive capacity. 
Upon de nova review, we will dismiss the appeal. 
I. LEGAL FRAMEWORK 
To establish eligibility for the L-1 A 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)(l5)(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. 
1 The Petitioner previously filed a "new office" petition on the Beneficiary's behalf which was approved for the period 
June 14, 2017, until June 13, 2018. 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. 
Matter of J-1- Co. 
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). This evidence must demonstrate that the beneficiary will be employed in 
a managerial or executive capacity, as defined at sections 10l(a)(44)(A) and (B) of the Act, under 
the extended petition. 
II. U.S. EMPLOYMENT IN AN EXECUTIVE CAPACITY 
The sole 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 Beneficiary would be 
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 10l(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 
Based on the 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. See Family Inc. v. USCIS, 469 F.3d 1313, 1316 (9th Cir. 2006); 
Champion World, 940 F.2d at 1533. 
The Petitioner provided the following description of the Beneficiary's duties at the time of filing: 
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Matter of J-1- Co. 
(1) Providing leadership and direction for the subsidiary, exploring new business 
opportunities in the U.S. and international market by networking at conferences 
and conducting meetings with other company presidents (30%); 
(2) Reviewing marketing strategy and goals with department managers regarding 
core business and products, and their implementation by the subsidiary (20%); 
(3) Reviewing the general operations of the subsidiary with department managers to 
ensure that operations are running efficiently and smoothly (20%); 
(4) Negotiating and signing trade contracts (15%); 
(5) Evaluating department managers' performance in the subsidiary, executing 
personnel actions such as hiring, firing, promotion, and demotion of department 
managers (10% ); 
(6) Reporting directly to the parent company (5%). 
In a request for evidence (RFE), the Director advised the Petitioner that this description lacked 
sufficient detail to establish that the Beneficiary's duties would be primarily managerial or executive 
in nature. The Director asked that the Petitioner provide a more detailed statement of the 
Beneficiary's actual day-to-day duties and the amount of time to be spent on each specific task. 
In response, the Petitioner provided a list of duties that closely resembled the initial job description. 
The Petitioner eliminated the assigned percentages and added a seventh job duty. Specifically, the 
Petitioner added that the Beneficiary's duties include "lead company team, registered, displayed 
design-Tradeshow ____ _______ show in trade show), do 
product promotion." 
In addition, the Petitioner stated that the Beneficiary would continue to perform the same duties if 
the petition is extended, and noted that her duties would further include: 
1. Work with parent company and U.S. subsidiary's department's manager to plan 
and implement a short-, mid- and long-term strategy for the development of the 
U.S. company. 
2. Oversee the complete operation of the company ensuring it operates and goals 
[sic] are met based on the direction established in the strategic plans. 
3. Making decisions about capital allocations, resource management, investments, 
new business opportunities. Meet with potential customers face to face and 
promote our company, products, and services. 
4. Make final decision on department manager's performance in the subsidiary , 
administrat e personnel actions such as hiring, firing, promotion , and demotion of 
department employees . 
The Director found that the RFE response did not add sufficient detail to the initial description and 
was therefore insufficient to establish the nature of the Beneficiary's actual duties, such that they 
could be classified as primarily executive in nature. We agree with the Director' s assessment of the 
position description. The Petitioner has submitted overly broad descriptions of the Beneficiary's 
duties which do little more than establish her level of authority over the company. While the 
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Matter of J-1- Co. 
information provided supports the Petitioner's claim that the Beneficiary occupies the senior position 
in the U.S. company, it did not provide additional insight into what she would primarily do on a day­
to-day basis under an extended petition. 
For example, the Petitioner's stated that the Beneficiary provides "leadership and direction," 
explores new business opportunities, reviews "the general operations," and oversees "the complete 
operation of the company," but provided few details or examples in support of its claim that these 
responsibilities would primarily occupy her time. These statements do not provide the required level 
of detail regarding what she actually does as a part of her daily routine. While we do not doubt the 
Beneficiary's authority to make decisions impacting the company or her responsibility for company 
oversight, the record lacks a detailed account of her specific tasks. 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. The actual 
duties themselves reveal the true nature of the employment. 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). 
Further, we note that the Beneficiary's duties include networking at conferences, face to face 
meetings with potential customers, promoting the company's products and services, negotiating 
"trade contracts," and performing "product promotion." The Petitioner did not provide sufficient 
explanation of these duties and without additional information, we cannot discern whether these are 
duties performed at the executive level, or more routine marketing, sales and promotional activities. 
Again, the new information provided in response to the RFE did not include the amount of time to 
be spent on specific tasks, and did not sufficiently describe the nature of the Beneficiary's duties in 
the course of her daily routine. To the extent that it did include specific tasks, it suggested that she 
would be directly involved in sales and marketing activities. Overall, the Petitioner's description of 
the Beneficiary's job duties does not establish what proportion of the duties is executive in nature, 
and what proportion is non-executive. See Republic ofTranskei v. INS, 923 F.2d 175, 177 (D.C. Cir. 
1991). 
The fact that the Beneficiary will direct a business as its senior employee 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. Whether the Beneficiary is an executive employee 
turns on whether the Petitioner has sustained its burden of proving that their duties are "primarily" 
executive. Even though 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, 
a broad overview of her responsibilities is insufficient to establish that her actual duties would be 
primarily in an executive capacity. 
B. Business Activities, Staffing and Organizational Structure 
If staffing levels are used as a factor in determining whether an individual is acting in a managerial 
or 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. 
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Matter of J-1- Co. 
The Petitioner stated on the Form 1-129, Petition for a Nonimmigrant Worker, that it operates a 
"wholesale" business with five employees. The Petitioner noted that its Chinese parent company 
develops produces, imports, and exports video servers and provides related technical consultation 
and other customer services. It stated that the foreign parent established the U.S. subsidiary "in 
order to build itself into an international trading and video server production company." 
The Petitioner stated in its supporting letter that it is engaged in "trading, and providing expert 
technical consultation, customer service and shor[t]-term training [to] high end enterprises' 
personnel." It further noted that it was doing business as and 
and used these names for its "wholesale electric parts and auto businesses." 
As evidence of its business activities, the Petitioner submitted copies of two "Technology Service 
Contracts" with the same Hong Kong-based client. Under the terms of these contracts, the Petitioner 
was to provide the client with (1) installation and debugging of hardware products and (2) debugging 
of system software. The Petitioner provided evidence that it invoiced the overseas client for 
"consulting fees." All other invoices in the record are for the sale of used luxury automobiles to 
California-based companies and show that the Petitioner sold these products under the name 
The Petitioner has not provided evidence that it is engaged in wholesale 
activities, international trade of video servers, or provision of training to client personnel. 
The Petitioner provided an organizational chart which depicts the Beneficiary's subordinates as a 
marketing and sales department manager, an administrator, and an operation department manager. 
The chart also shows a marketing and sales assistant who reports to the marketing and sales 
manager. Finally, it includes vacancies for a bookkeeper position and an operation assistant. 
While the Petitioner provided position descriptions and evidence of wages paid to the subordinate 
staff, the submitted descriptions do not appear to be consistent with the nature of the business. As 
noted, the Petitioner's income generated to date, according to the submitted invoices, has been 
derived from the sales of individual used automobiles to a handful of clients in southern California 
and the delivery of technical hardware and software services to a client in Hong Kong. The job 
descriptions provided for the company employees do not mention any responsibilities for the 
sourcing, purchasing, or sale of automobiles or the provision of technical services overseas. 
Turning to the duties performed by the Beneficiary's direct subordinates, the Petitioner states that 
the marketing and sales manager assists the Beneficiary in leading and directing the company, 
reviews its marketing operations , assists with the exploration of new business opportunities, assists 
with review of marketing strategies and goals, seeks advantageous investment projects, and 
participates in marketing activities and trade shows. The job duties are poorly defined, overlap with 
the Beneficiary's own responsibilities in many respects, and do not provide sufficient insight into 
what specific company functions have been delegated to this employee. 
The job duties attributed to the "administrator" lack credibility in light of the nature and structure of 
the company. The Petitioner states that this employee "accomplishes staff results by communicating 
job expectations, " monitors and appraises job results, and coaches, counsels and disciplines 
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Matter of J-1- Co. 
employees. However, this position has no current or proposed subordinates based on the submitted 
organizational chart. The Petitioner broadly states that the administrator will "initiate, coordinate 
and enforce systems, policies, and procedures" as well as "establish policies, procedures and work 
schedules" but did not indicate what "systems" are in place or why the company's policy-making 
duties would be delegated to an administrative employee with no subordinate staff. Finally, the 
Petitioner stated that this position will identify the supply needs for "reception, switchboard, 
mailroom, and kitchen," none of which appear to exist within the Petitioner's organization. 
Finally, the Petitioner provided a position description for the operation department manager which 
seems to overlap with the duties assigned to the administrator. The Petitioner stated that this 
position will improve the operational systems, processes and policies, as well as play a "significant 
role" in long-term planning, and manage payroll and employee benefits. Overall, the Petitioner 
claims that four of its five employees are focused on aspects of the company's strategies, goals, 
policies, systems, and processes, with little mention of who performs the company's actual day-to­
day administrative and operational tasks. For example, the Petitioner does not claim to have anyone 
engaged in sourcing and purchasing the automobiles that the company sells domestically or 
arranging for their delivery to customers, nor does it have staff who are claimed to deliver technical 
services to international clients. It also does not indicate who currently performs the duties that will 
eventually be assigned to a bookkeeper or operations assistant. 
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 l01(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, 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." Id. 
Here, although the Petitioner states that it has sufficient lower-level staff to allow the Beneficiary to 
primarily focus on the broad policies and goals of the organization, and to remove her from 
significant involvement in the day-to-day operations of the company, the record does not support 
that claim. Because the submitted position descriptions for the Beneficiary and her subordinates are 
overly broad, and in some instances lacking credibility, and because the Petitioner has not provided a 
clear description of the full nature and scope of the company's activities, we cannot determine how 
or to what extent the actual day-to-day, non-executive activities of the business are delegated to the 
subordinate staff. As noted, there are a number of operational and administrative tasks that have not 
been assigned to any specific employee and we cannot determine whether or to what extent the 
Beneficiary would be relieved from performing such tasks. 
Matter of J-1- Co. 
On appeal, the Petitioner contends that the Director erred by basing the denial on the small number 
of staff. As required by section 101(a)(44)(C) of the Act, if staffing levels are used as a factor in 
determining whether an individual is acting in a managerial or executive capacity, we must take into 
account the reasonable needs of the organization, in light of the overall purpose and stage of 
development of the organization. However, it is appropriate to consider the size of the petitioning 
company in conjunction with other relevant factors, such as the absence of employees who would 
perform the non-managerial or non-executive operations of the company. Family Inc., 469 F.3d at 
1313; Systronics Corp. v. INS, 153 F. Supp. 2d 7, 15 (D.D.C. 2001). The size of a company may be 
especially relevant when we note discrepancies in the record. See Systronics, 153 F. Supp. 2d at 15. 
We acknowledge that the Petitioner was still in a preliminary stage of development and recorded its 
first revenues 2017. We have interpreted the statute to prohibit discrimination against small or 
medium-size businesses. However, we have also consistently interpreted that Act to require any 
given petition, regardless of size, to establish that a beneficiary's position "primarily" consists of 
executive duties, and that it has sufficient personnel to relieve a beneficiary from performing 
operational and administrative tasks. The reasonable needs of a petitioner will not supersede the 
requirement that a beneficiary be "primarily" employed in a managerial or executive capacity as 
required by the statute. Brazil Quality Stones v. Cherto.ff, 531 F.3d 1063, 1070 n. l O (9th Cir. 2008). 
Regardless, our determination here is not based on the size of the company, but rather on the lack of 
detailed, probative information regarding the nature of the company's activities and the specific 
duties to be performed by the Beneficiary and her subordinates under an extended petition. 
For the reasons discussed above, the Petitioner has not established that the Beneficiary would be 
employed in an executive capacity. 
III. ONE YEAR OF EMPLOYMENT ABROAD 
Although not addressed in the Director's decision, we find that the Petitioner has not established that 
the Beneficiary had at least continuous year of full-time employment abroad in a managerial or 
executive capacity in the three years preceding the filing of the initial L-1 A petition on her behalf. 
See 8 C.F.R. § 214.2(l)(l)(iii)-(iv). 
On the Form 1-129 L Classification Supplement, the Petitioner stated that the Beneficiary worked for 
its Chinese parent company as vice president from May 2016 until June 2017. However, the 
Beneficiary visited the United States on several occasions during this time period and those periods 
of time spent in the United States do not count towards her one year of employment abroad. See 8 
C.F.R. § 214.2(l)(l)(ii)(A). As one of the Beneficiary's stays in B-1 nonimmigrant status was over 
four months in length (August 2016 until January 2017), the Petitioner did not establish that she was 
employed abroad for one full year between May 2016 and June 2017. 
We acknowledge that the Petitioner stated in its supporting letter that the Beneficiary previously 
worked with its foreign entity from the time she graduated with her undergraduate degree in 2008, 
but it is unclear why the Petitioner did not list any prior employment on the Form 1-129. The 
Petitioner did not provide any details regarding this claimed prior employment or claim that it was in 
Matter of J-I- Co. 
a managerial or executive capacity. In addition, a "Certificate of Employment" prepared by the 
foreign entity mentions only the Beneficiary's employment as vice president beginning in May 2016. 
If the Beneficiary did in fact work for the Petitioner's foreign parent company prior to assuming the 
position of vice president in May 2016, then additional documentation would be needed to 
substantiate that claim and the managerial or executive nature of the position. Based on the current 
record, the Petitioner did not establish that the Beneficiary has the required one year of qualifying 
employment abroad prior to her transfer to the United States. For this additional reason, the petition 
cannot be approved. 
IV. CONCLUSION 
The appeal will be dismissed because the Petitioner did not establish that it will employ the 
Beneficiary in an executive capacity or that the Beneficiary had at least one continuous year of full 
time employment with a qualifying entity abroad in the three years preceding the filing of the initial 
L-1 petition. 
ORDER: The appeal is dismissed. 
Cite as Matter of J-1- Co., ID# 2032193 (AAO Jan. 7, 2019)