dismissed L-1A Case: Wholesale And Retail

U.S. Citizenship 
and Immigration 
Services 
MATTER OF A- CORP. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: APR.17,2018 
APPEAL OF CALIFORNIA SERVICE CENTER DECISION 
PETITION: FORM 1-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a wholesaler and retailer of custom shutters and cabinets, seeks to continue the 
Beneficiary's temporary employment as its "vice president/chief financial officer" under the L-1 A 
nonimmigrant classification for intracompany transferees.
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See Immigration and Nationality Act 
(the Act) section 101(a)(15)(L), 8 U.S.C. § 1101(a)(l5)(L). The L-IA classification allows a 
corporation or other legal entity (including its affiliate or subsidiary) to transfer a qualifying foreign 
employee to the United States to work temporarily in a managerial or executive capacity. 
The Director of the California Service Center denied the petition concluding that the Petitioner 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 contends that the Director disregarded previously submitted evidence and 
made factual and legal errors in denying the petition. 
Upon de novo review, we find that the Petitioner did not overcome the Director's decision. 
Therefore, we will dismiss the appeal. 
.1. LEGAL FRAMEWORK 
To establish eligibility for the L-1 A 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(l)(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. I d. 
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The Petitioner previously filed a "new office" petition on the Beneficiary's behalf which was approved for the period 
August I, 2016, until July 3\, 2017. 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)(\)(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. 
Mauer of A- Corp. 
A petitioner seeking to extend an L-IA petition that involved a new oftice must submit a statement 
of the beneficiary's duties during the previous year and under the extended petition; a statement 
describing the staf11ng 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 
In this matter, the Petitioner claims that the Beneficiary's proposed position will be in an executive 
capacity. The Petitioner did not claim that the Beneficiary would be employed in a managerial 
capacity. Therefore, our analysis will focus on the Petitioner's claim that the Beneficiary will be 
employed in an executive capacity under an extended petition. 
"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 
IOI(a)(44)(B) of the Act. 
Based on the statutory definition of executive capacity, the Petitioner must tirst 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). The Petitioner also 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. USCJS, 469 F.3d 1313, 
1316 (9th Cir. 2006); Champion World, 940 F.2d 1533. 
When examining the managerial or executive capacity of a given beneficiary, we will look to 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 Beneticiary. See 8 C.F.R. § 214.2(1)(3)(ii). Beyond the 
required description of the job duties, U.S. Citizenship and Immigration Services (USCIS) examines 
the company's organizational structure, the duties of a beneticiary's subordinate employees, the 
presence of other employees to relieve a beneticiary 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 Beneticiary's job duties along with evidence of 
the nature of the Petitioner's business and its staffing levels. 
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lv!auer of A- Corp. 
A. Duties 
In support of the petition, the Petitioner provided a cover letter stating that it has relied on "localized 
advertising," personal contacts, social media, and its newly launched website and mobile application to 
market its products and services. The Petitioner stated that under an extended petition the Beneficiary 
will: manage the company's finances and marketing by working with managerial employees to secure 
loans from vendors to maintain cash tlow and by ensuring the foreign entity's continued financial 
support of the U.S. operation; continue to oversee the company's marketing by relying on managerial 
employees to develop a marketing strategy; exercise discretionary authority over personnel matters, such 
as hiring and tiring managerial employees and recommending other personnel actions; and make 
decisions about daily operations by delegating daily functions to managerial employees. 
In a request for evidence (RFE), the Director determined that the submitted job description was 
insufficient and questioned the Beneficiary's role with respect to the Petitioner's warehousing 
operation in light of a photograph that appeared to show the Beneficiary performing operational 
tasks. 
In response, the Petitioner restated the Beneficiary's prior job description and provided a description 
of the job duties the Beneflciary performed during the Petitioner's Erst year of operation and would 
continue to perform under an extended petition. Those job duties include directing financial 
activities and coordinating such activities with the parent company, formulating financial and 
marketing strategies, and hiring, flring, and evaluating employees. The Petitioner also addressed the 
Director's concerns regarding the photograph of the Beneficiary in the warehouse, stating that the 
photograph depicts the Beneficiary demonstrating the use of new machinery that was ordered to 
carry out the Petitioner's daily functions. 
In the denial decision, the Director determined that the Petitioner provided a deficient job description 
that did not adequately describe the Beneflciary's daily job duties or state how the Beneficiary 
would distribute his time among his assigned tasks. The Director also acknowledged the Petitioner's 
explanation regarding the Beneficiary's warehouse functions and noted that training employees is 
not an executive-level tasks. 
On appeal, the Petitioner asserts that the Beneficiary "directs the management of the whole U.S. 
entity on tinance" and contends that it is not required to provide a job description that necessarily 
breaks down the Beneficiary's job duties "on a daily basis." The Petitioner's interpretation of the 
express regulatory language is correct. We further note that the Director cannot make an adverse 
tinding regarding the Petitioner's failure to submit specific evidence if such evidence is not 
expressly required by statute or regulation and was not requested by the Director. In any event, the 
Director has the discretionary authority to request evidence that is not expressly required by 
regulation, 2 including a job duty breakdown delineating a beneficiary's specific daily job duties. 
Here, however. the Director did not expressly request the Petitioner to provide a job description in 
'See 8 C.F.R. § 103.2(b)(8)(iii). 
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Matter ofA- Corp. 
that speci tlc format and therefore no adverse finding should stem from the lack of such evidence. 
Nevertheless, in order to establish eligibility for the L-lA nonimmigrant visa classification, every 
petiti,mer must meet certain fundamental criteria, including providing "a detailed job description of 
the services to be performed" by the beneficiary. See 8 C.F.R. § 214.2(1)(3)(ii). 
In the present matter, the Petitioner provided a deficient job description that does not meet the above 
regulatory requirement because it does not include a detailed description of the services that the 
Beneficiary will perform under an extended petition. For instance, the job description indicates that 
the Beneficiary will direct the Petitioner's financial activities and "coordinate" those activities with 
its parent entity to ensure the foreign entity's continued financial commitment to the U.S. operation. 
The Petitioner did not, however, specify any actual services the Beneficiary will perform to explain 
how he will direct and coordinate the company's finances. The Petitioner was similarly vague in 
stating that the Beneficiary will supervise a "subordinate manager for p1arketing" and "rely on 
subordinate managers to produce the realistic marketing strategy" and "promote the company's 
goals." The Petitioner did not identify any specific job duties that would explain how the 
Beneficiary plans to supervise employees in creating and carrying out a marketing plan, nor is it 
clear that the Petitioner has employees that are specifically assigned marketing job duties. 
Further, although the Petitioner claims that it will rely on its newly launched website and mobile 
application to market its products and services, it is unclear who created the website and mobile 
application and who will monitor and service these marketing tools going forward. The Petitioner 
also claimed that formulating the financial and marketing strategies will require the Beneficiary to 
"address[] the major business issues and operating problems"; it did not, however, identify any 
"major business issues" or "operating problems" or establish that addressing these issues and 
problems is beyond the types of operational concerns that can be delegated to non-executive 
subordinate employees. Stating that the Beneficiary will have discretionary authority in hiring, 
firing, and evaluating employees is not sufficient to convey an understanding of the underlying 
services the Beneficiary will perfom1, as these functions would only be performed intermittently as 
needed and would not be a routine part of the Beneficiary's proposed assignment. 
On appeaL the Petitioner provides a supplemental job duty breakdown, which states that the 
Beneficiary will allocate his time in the following manner: 
• 25% overseeing the company's finances and marketing by performing duties that include 
developing "financial management systems," making financial decisions regarding 
policies and objectives, developing financial procedures, making business forecasts, and 
managing the company's budget; 
• 25% fonnulating a financial and marketing strategy, formulating responses to industry 
changes, preparing financial statements and reporting on company finances, assisting 
with contract negotiations and assessing prospective contracts, and overseeing cash and 
investments; 
• 15% hiring, tiring, and evaluating employees,· creating • performance incentives and 
delegating assignments, making financial recommendations and evaluating potential 
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Matter of A- Corp. 
investments and cost e11ectiveness of prospective services, drafting budgets, and 
reporting to the board of directors regarding financial and budgeting matters; 
• 15% coordinating financial activities with the parent entity, ensuring the parent entity's 
continued financial commitment to the U.S. operation, developing and implementing 
accounting, billing, and auditing procedures, and overseeing fiscal reporting, purchasing 
and payroll, production of monthly reports, and accounts payable and receivable; 
• I 0% fund raising, managing costs and revenues, analyzing cash flow, costs controls, and 
investment proposals, coordinating finanCial audits, working with the CEO "to ensure 
progranunatic success and compliance with "contractual and programmatic 
requirements," and ensuring that "adequate controls" are in place to enable purchases to 
pass independent and government audits; and 
• I 0% overseeing budgets and financial management, supervising investments and fund 
raising, preparing financial analysis fur contract negotiations and product investment 
decisions, training staff to raise awareness of "financial management matters," 
developing internal contracts to protect company assets, researching cost effective 
benefits plans, creating and implementing wage incentives, and overseeing business 
insurance and health plans. 
Although this job description is lengthier than those previously provided and includes a percentage 
time allocation, it groups multiple duties together and therefure does establish how much time the 
Beneficiary would spend performing each individual task. Further, we lind that the new job 
description does not add to our understanding of the Beneficiary's daily tasks, nor does it establish 
that the Beneficiary would allocate his time primarily to executive job duties. Despite maintaining 
the claim that the Beneficiary will oversee the company's finances, the Petitioner did not clarify any 
telling characteristics of the "financial management systems" that the Beneficiary will purportedly 
develop or specify any policies or objectives he has formulated and put in place. The Petitioner also 
provided no infurmation about the types of financial and marketing strategies the Beneficiary will 
formulate, nor did it establish that preparing financial statements and assisting with contract 
negotiations are executive activities. Likewise, the Petitioner did not establish that drafting budgets, 
engaging in fund raising activities, or preparing financial analyses are executive job duties. As the 
Petitioner grouped multiple tasks together when assigning time allocations, it is unclear how much 
time the Beneficiary would spend carrying out these non-executive functions. 
In general, the fact that the Beneficiary will direct the management of a business does not 
necessarily establish eligibility fur classification as an intracompany transferee in an executive 
capacity. By statute, eligibility for this classification requires that the duties of a position be 
"primarily" executive or n1anagerial in nature. Sections !Ol(A)(44)(A) and (B) of the Act. As such, 
a detailed job description is critical in determining the nature of the employment; reciting the 
Beneficiary's vague job responsibilities or broadly-cast business objectives is not sutlicient and 
would not meet the regulations, which require a detailed description of the Beneficiary's daily job 
duties. We further note that exercising discretion over the Petitioner's day-to-day operations and 
possessing the requisite level of authority with respect to discretionary decision-making does not 
mean that the Beneficiary would devote his time primarily to executive-level·tasks, as claimed. In 
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Malter ofA- Co11J. 
order to make this determination, the Petitioner must identify the specific tasks the Beneficiary will 
perform or the services he will provide. The actual duties themselves will 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). 
The job descriptions that the Petitioner has provided do not sufficiently delineate the Beneficiary's 
actual job duties and thus they do not establish that he would be employed in an executive capacity. 
B. Staffing 
If starting levels are used as a factor in determining whether an individual is acting in an executive 
capacity, USCIS takes into account the reasonable needs of the organization, in light of the overall 
purpose and stage of development of the organization. See section IOI(a)(44)(C) of the Act. 
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. Inherent to the definition, the organization must have a 
subordinate level of managerial employees tor a beneficiary to direct 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 trom higher level executives, the board of directors, or 
stockholders of the organization." /d. 
In the present matter, the Petitioner provided an organizational chart showing a chief executive 
officer at the top of the hierarchy with the Beneficiary immediately subordinate to that position. The 
chart shows three U.S. positions- a sales manager, an office manager, and a production manager­
and a China-based head of the "international division" as the Beneficiary's direct subordinates. The 
chart also shows a third tier of employees consisting of two sales people subordinate to. the sales 
manager, one warehouse employee subordinate to the office manager, two production technicians 
subordinate to the production manager, and two China-based trading department employees 
subordinate to the head of the "international division." The Petitioner provided brief job 
descriptions tor the Beneficiary's direct and indirect subordinates ·in the United States. It did not, 
however, provide a job description lor its CEO or the claimed China-based employees. 
In the RFE, the Director questioned the Petitioner's representation of China-based employees as part 
of its U.S. stafnng structure, pointing out that all three employees are part of the parent company's 
organizational chart, which does not depict those employees as the Beneficiary's subordinates. 
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Mauer of A- Corp. 
The Petiti oner's response includes a new organizationa l chart, which dep icts the same basic staffing 
structu re as in the original chart , but omits the foreig n-based employees . The chart also shows that 
whom the Petiti oner previously identified as one of its two product ion technicians, now 
occ upies the position of sa les manager, thereb y decreasing the number of production technicia ns 
from two to one. The Petitione r did not explain these sta ffin g changes or discuss how they might 
affect its daily opera tions and the time the ~eneficiary would devote to the Petitioner's non­
executive ope rational function s. 
We further note that while the Petitioner did not provide a job description for its CEO, whom it 
depicted at the top of its organi zational hierarch y, nor did it explain how the CEO and Beneficiary 
direct the management of a nine-person organization and its compo nents. Without this infor mation, 
we cann ot assess the Bene ficiary's position or gauge his level o f discretionary authority within the 
scope of an organ ization where appro ximately 20% of the staff is claimed to be emp loyed in an 
executi ve capacity. We also find that the job descriptions that the Petitioner provid ed for its sup port 
personnel are over ly vague and do not adequately estab lish which dutie s the subordinate staff would 
perform. For instance , despit e the heavy focus on t i nanci al manage ment in the Beneficiar y's own 
job description , none of the supporting employees have been tasked with routi ne finance funct ions. 
It is therefore unclear whC?, if not the Beneficiary, would carry out the underl ying daily tasks 
associated with financial management. Without sufficie nt information abo ut the tasks performed by 
the Benefic iary's support staff we are unable to determine the extent to which they would etTectively 
relieve the Bcndiciary from having to engage dai ly in the perform ance of opera tiona l job dut ies. 
The Petitlo ner correctly observes that we must take into account the reaso nable needs of the 
orga nization and that a company' s s ize alone may not be the only factor in denying a visa petition 
for cla ssification as a multin at ional manager or exec utive. See section I OI(a)(44)(C) of the Act. 
However, it is appropriate for USCIS to consid er the size of the petiti oning company in conjunc tion 
with oth er relevant factor s, such as the abse'nce of employees who would perform the non­
manager ial or non-exe cutiv e operations of the company or a company that does not conduct business 
in a regular and con tinu ous manner. Family Inc. v. USCIS, 469 F.3d 1313 (9th Cir. 2006); 
Systronics Corp. v. INS, 153 F. Supp. 2d 7, 15 (D.D.C. 2001). The size of a compa ny may be 
especially relevant when USC IS notes discrcpa~c i es in the record . See Systr onics, 153 F. Supp. 2d 
at 15. As discus sed above, the record does not estab lish that the Petitioner had a sutTicien t staff to 
relieve the Beneficiary from having to allocat e his time to prim arily non-execu tive job duties. 
Finally, the Petitio ner cont ends that the Direct or did not consider the congre ssiona l inte nt in creating 
the L-1 visa catego ry and also points to the current U.S. polic y to "Buy American Hire American." 
We note , however , that an immigration benefit can not be g ranted to a petitioner that has not 
establi shed that it meet s the eligibilit y requirement s for the benefit being so ught. As discussed 
earlier , the Petitio ner did not adeq uately describe the Benefic iary ' s proposed job duties or 
demonstrat e that at the time of filing it had the organ izational comp lexity to support the Beneficiar y 
in an executive capacity. 
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Mauer of A- Corp. 
Ill. CONCLUSION 
For the reasons discussed above, we tind that the Petitioner has not established that the Beneficiary 
will be employed in an executive capacity under an extended petition. 
ORDER: The appeal is dismissed. 
Cite as Matter of A- Corp., ID# 1130757 (AAO Apr. 17, 2018) 
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