dismissed L-1A Case: Wholesale Business

U.S. Citizenship 
and Immigration 
Services 
MATTER OF W-L-Z-S- CORP. 
APPEAL OF VERMONT SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: APR. 7, 2017 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a wholesale shoe business, seeks to extend the Beneficiary's temporary employment as 
its president under the L-1 A nonimmigrant classification for intracompany transferees. See 
Immigration and Nationality Act (the Act) section 10l(a)(15)(L), 8 U.S.C. ~ 110l(a)(15)(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 Vermont Service Center denied the petition, concluding that the record did not 
establish, as required, that the Beneficiary will be employed in a managerial or executive capacity 
under the extended petition. 
On appeal, the Petitioner asserts that the Beneficiary qualifies as an executive and as a manager, as 
the record demonstrates that she holds the top executive position and will continue to perform high­
level managerial duties. 
Upon de novo review, we will dismiss the appeal. 
I. LEGAL FRAMEWORK 
To establish eligibility for the L-1 nonimmigrant visa classification, a qualifying organization must 
have employed the Beneficiary in a managerial or executive capacity, or in a specialized knowledge 
capacity, for one continuous year within three years preceding the Beneficiary's application for 
admission into the United States. In addition, the Beneficiary must seek to enter the United States 
temporarily to continue rendering his or her services to the same employer or a subsidiary or affiliate 
thereof in a managerial, executive, or specialized knowledge capacity. Section 10l(a)(l5)(L) of the 
Act. 
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 
Matter of W-L-Z-S- Corp. 
evidence that it maintains a qualifying relationship with the beneficiary's foreign employer. 
8 C.F.R. § 214.2(1)(14)(ii). 
II. EMPLOYMENT IN A MANAGERIAL OR EXECUTIVE CAPACITY 
The Director found that the Petitioner did not establish that it will employ the Beneficiary in a 
managerial or executive capacity under the extended petition. Specifically, the Director found that 
the Petitioner did not meet its burden to provide a detailed description of the Beneficiary's proposed 
duties under the extended petition or provide sufficient information regarding the Beneficiary's 
subordinate employees' duties to demonstrate that they would relieve her from significant 
involvement in the company's day-to-day operations. 
On appeal, the Petitioner asserts that the evidence previously submitted is sufficient to establish that 
the Beneficiary performs primarily managerial or executive duties. It maintains that the company 
now has seven employees, has been in business for two years, pays all required taxes. and will need 
to close the business if the extension is not granted. 
The term "managerial capacity" is defined as "an assignment within an organization in which the 
employee primarily": 
(i) manages the organization, or a department, subdivision, function, or component 
of the organization; 
(ii) supervises and controls the work of other supervisory, professional, or 
managerial employees, or manages an essential function within the 
organization, or a department or subdivision of the organization; 
(iii) if another employee or other employees are directly supervised, has the 
authority to hire and tire or recommend those as well as other personnel actions 
(such as promotion and leave authorization), or if no other employee is directly 
supervised, functions at a senior level within the organizational hierarchy or 
with respect to the function managed; and 
(iv) exercises discretion over the day-to-day operations of the activity or function for 
which the employee has authority. 
Section 10l(a)(44)(A) of the Act, 8 U.S.C. § 110l(a)(44)(A). Further, "[a] first-line supervisor is 
not considered to be acting in a managerial capacity merely by virtue ofthe supervisor's supervisory 
duties unless the employees supervised are professional." !d. 
The term "executive capacity" is defined as "an assignment within an organization in which the 
employee primarily": 
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Matter of W-L-Z-S- Corp. 
(i) directs the management of the organization or a major component or function of 
the organization; 
(ii) establishes the goals and policies of the organization, component, or function; 
(iii) exercises wide latitude in discretionary decision-making; and 
(iv) receives only general supervision or direction from higher-level executives, the 
board of directors, or stockholders of the organization. 
Section 1 01 (a)( 44 )(B) 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. See section 101(a)(44)(C) ofthe Act. 
A. Duties 
When examining the managerial or executive capacity of the Beneficiary, we will look first 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 Beneficiary and indicate whether such duties are in a 
managerial or executive capacity. See 8 C.F.R. § 214.2(1)(3)(ii). 
Based on the definitions of managerial and 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 managerial or 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. 
On the Form I-129, the Petitioner stated that it is a "shoe business" with five employees. It 
described the Beneficiary's proposed duties under the extended petition as follows: 
1) [I]ncrease management's effectiveness by recruiting, selecting, orienting, training, 
coaching, counseling, and disciplining managers; communicating values, 
strategies, and objectives; assigning accountabilities; planning, monitoring, and 
appraising job results; developing incentives; developing a climate for offering 
information and opinions; providing educational opportunities. 
2) Develops strategic plan by studying technological and financial opportunities; 
presenting assumptions; recommending objectives. 
3) [A]ccomplishes subsidiary objectives ~y establishing plans, budgets, and etc[.] 
In a supporting letter, the Petitioner added that the Beneficiary "is to set all corporate policies, and is 
the head for the developing strategies for purchasing and marketing." 
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Matter of W-L-Z-S- Corp. 
The Director issued a request for evidence (RFE) advising the Petitioner that the submitted position 
description does not contain sufficient detail to establish the Beneficiary's employment in a 
managerial or executive capacity. The Director requested a description the Beneficiary's duties 
during the previous year and a detailed statement of the specific duties she will perform under the 
extended petition, including percentages of time to be spent on each task. 
In response, the Petitioner stated that during the previous year, the Beneficiary "was in charge of 
day-to-day operations," set guidelines and policies, supervised subordinate managers, directed 
marketing and sales professionals to promote company products, coordinated with the parent 
company in planning production and import-export projects, formulated budgets, and set sales 
targets for the company. It described her duties under the extended petition as follows: 
Beneficiary will continue to be the President of our company, in charge of our day-to­
day operations, she will be vested with the discretionary authority in hiring and firing 
of subordinate managers and professionals, beneficiary will continue to be the top 
executive, formulating company policies in marketing and sales, beneficiary will 
spend about 90% of her time in executive and managerial functions. Our company 
has no other managerial staffs [sic] who have thorough knowledge of our products 
and product lines except for the beneficiary. 
Beneficiary will use company sales records, marketing and sales statistics collected 
during nonnal business activities to determine future marketing and sales policies. 
How the beneficiary will direct management-· 
Beneficiary will supervise subordinate mangers, who is our Vice President in 
charge of marketing and sales operations, who is the Marketing Manager, 
who is the Sales Manager. In particular, beneficiary will set marketing 
and sales guidelines for those managers to be carried out by other employees and 
professionals. 
How beneficiary will establish goals -
Beneficiary will perform research on product trends and market demands based [sic], 
set goals and policies based on her past experience as well as company's marketing 
and sales records and statistics. 
How the beneficiary will exercise wide latitude in discretionary decision-making -
Beneficiary will ha[ve] absolute power in hiring, promotion and firing of the 
subordinate managers and the vice president, she will be vested with authority in 
major decision making like formation and revision of company product lines and new 
styles, planning for production and approving marketing and sales territories and 
pricing, finalizing company budgets and expenditures. 
Whether beneficiary will receive supervision -
Beneficiary will receive supervision only from the board of directors. 
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Matter of W-L-Z-S- Corp. 
We agree with the Director's determination that the submitted position descriptions lack detail and 
do not demonstrate that the Beneficiary will primarily perform managerial or executive duties under 
the extended petition. Some of the duties paraphrase the statutory definitions of managerial and 
executive capacity. Concllisory assertions regarding the Beneficiary's employment capacity are not 
sufficient. Merely repeating the language of the statute or regulations does not satisfy the 
Petitioner's burden of proof Fedin Bros. Co .. Ltd. v. Sava, 724 F. Supp. 1103, 1108 (E.D.N.Y. 
1989), a.ff'd, 905 F. 2d 41 (2d. Cir. 1990); Avyr Assocs .. Inc. v. Meissner, 1997 WL 188942 at *5 
(S.D.N.Y.). 
In addition, several of the duties, without additional explanation, suggest that the Beneficiary would 
be involved in non-executive tasks. For example, the Petitioner stated that the Beneficiary is 
responsible for researching product and market trends, and has been involved in coordinating with 
the parent company on "planning productions and import and export projects." All staff hired to 
date appear to be involved in sales and marketing and it is unclear who, other than the Beneficiary is 
responsible for coordinating the production and import of the company's products into the United 
States. In addition, as discussed further below, the Petitioner did not provide a consistent description 
of its staffing or provide sufficient job descriptions for subordinate employees to allow us to 
determine-how non-managerial duties are allocated among the subordinate staff. 
' 
The statutory definition of the term "executive capacity" focuses on a person's elevated position 
within an 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 organization must have a subordinate 
level of managerial employees for 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. One 
does not quality as an executive under the statute simply because one "directs" the enterprise as the 
sole managerial employee. 
Here, the Petitioner focuses on the Beneficiary's authority over subordinate managers and her 
responsibility for setting goals and policies, but without information regarding the specific tasks she 
will perform and the percentage of time she would spend on specific tasks, we cannot determine that 
executive-level duties would be her primary duties. While the Beneficiary may have the appropriate 
level of authority over the company as its senior employee, the submitted job descriptions are too 
general to demonstrate that the Beneficiary is primarily focused on the policies and goals of the 
company rather than on its day-to-day administrative and operational activities. 
B. Staffing 
Beyond the required description of the job duties, we examine the claimed managerial or executive 
capacity of a beneficiary, including 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. 
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Matter of W-L-Z-S- Corp. 
The Petitioner claimed to have five employees at the time of filing the petition on August 31,2015. 
The Petitioner submitted an organizational chart with 15 positions and indicated that 6 positions 
were tilled (including the Beneficiary's). The chart shows that the filled positions were vice 
president who reports to the beneficiary); sales manager 1 who reports to 
and three sales persons (who report to The vacant positions include three sales 
positions and a warehousing manager (with assistant), who would report to and an 
accounting manager and marketing department manager who would report to the Beneficiary. 
Finally, the chart includes a vacant bookkeeper position, and an open sales representative position in 
the marketing department. 
The Petitioner submitted a revised chart in response to the RFE in March 2016. This chart is similar 
to the initial chart, but lists as the marketing department manager, as sales 
manager, and three different employees in the sales person positions. The evidence does not show 
that worked for the petitioner in 2015. The Petitioner must establish that all eligibility 
requirements for the immigration benefit have been satisfied from the time of the filing and 
continuing through adjudication. 8 C.F.R. § 103.2(b)(l). We will not consider employees hired or 
positions filled subsequent to the filing date. 
The record includes 2014 and 2015 IRS Form W-2s, payroll records and federal and state quarterly 
tax reports for all four quarters of 2015. The Petitioner consistently paid salaries to the Beneficiary 
and The record does not contain any evidence of payments to the purported vice 
president and the Petitioner has not provided an .explanation for this omission or other evidence 
establishing that he is a regular employee or contractor of the company. ' 
The Petitioner stated it pays its sales persons on commission and they receive IRS Form 1 099s at the 
end of the tax year. However, the persons identified as sales persons in the initial organizational 
chart received Form W-2s and are included in the Petitioner's payroll records and tax filings fqr the 
first quarter of 2015, with each individual earning $5,500. Further, the Petitioner did not provide 
copies of any Form 1 099s. 
The Petitioner no longer employed the three individuals named as sales persons in the original chart 
in the third quarter of 2015 when it filed the petition. However, the Petitioner paid $5,500 to nine 
different individuals during the first three quarters of 2015 (three in each quarter) and the record 
shows each one worked for the company for exactly 3 months. While it is possible that some of 
these employees held positons other than "sales person," the Petitioner did not indicate that it had 
tilled any other vacant positions over time. In the fourth quarter of 2015, the Petitioner paid only the 
Beneficiary, and one other person (who also received $5,500 for the quarter). 
Therefore, the record substantiates the Petitioner's employment of the Beneficiary, the sales 
manager, and three other employees, who appear to be sales persons, at the time of filing. 
1 We note that the Petitioner has also referred to an employee named ' ' We assume for purposes of this ---decision that and are the same person. 
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Matter ofW-L-Z-S- Corp. 
The Petitioner has referred to the Beneficiary's position as both executive and managerial, and 
emphasized that she would supervise subordinate managers and professionals. The statutory 
definition of "managerial capacity" allows for both "personnel managers" and "function managers.'' 
See section 10l(a)(44)(A)(i) and (ii) of the Act. The Petitioner does not claim that the Beneficiary is 
a function manager. Personnel managers are required to primarily supervise and control the work of 
other supervisory, professional, or managerial employees. The statute plainly states that a "first line 
supervisor is not considered to be acting in a managerial capacity merely by virtue of the 
supervisor's supervisory duties unless the employees supervised are professional." 2 Section 
101(a)(44)(A) of the Act. If a petitioner claims that a beneficiary directly supervises other 
employees, those subordinate employees must be supervisory, professional, or managerial, and the 
beneficiary must have the authority to hire and tire those employees, or recommend those actions, 
and take other personnel actions. Sections 101 (a)( 44 )(A)(ii)-(iii) of the Act. 
Although requested by the Director, the Petitioner did not provide information regarding the job 
duties and educational requirements for the employees subordinate to the Beneficiary, and, as noted 
above, did not document its employment of the claimed vice president. We cannot determine based 
on job titles alone that the sales manager holds a managerial, supervisory. or professional position, or 
that the sales persons are professionals. The Petitioner has not shown that the Beneticiary's­
subordinate employees are supervisory, professional, or managerial, as required by section 
101(a)(44)(A)(ii) of the Act. The Petitioner must support its assertions with relevant, probative, and 
credible evidence. See Matter ofChawathe, 25 I&N Dec. 369, 376 (AAO 2010). 
Even if we deemed the sales manager to be a supervisor based on his placement on the 
organizational chart, the Petitioner would not meet its burden to establish that the Beneficiary's 
duties are primarily managerial or executive or that it has sufficient staff to relieve her from 
significant involvement in the day-to-day operations of the company. 
A company's size alone may not be the determining factor in denying an L-1 A visa petition without 
taking into account the reasonable needs of the organization. See section 10l(a)(44)(C) ofthe Act. 
However, it is appropriate for U.S. Citizenship and Immigration Services (USCIS) 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 or a 
"shell company" that does not conduct business in a regular and continuous manner. Family, 469 
F.3d 1313; Systronics Corp. v. INS. 153 F. Supp. 2d 7, 15 (D.D.C. 2001 ). 
As the Petitioner requested an extension of a new office petition, the regulations reqmre ·an 
examination of the organizational structure and staffing levels of the Petitioner. See 8 C.F.R. 
2 To detennine whether the Beneficiary manages professional employees, we must evaluate whether the subordinate 
positions require a baccalaureate degree as a minimum for entry into the field of endeavor. Cf 8 C.F.R. § 204.5(k)(2) 
(defining "profession" to mean "any occupation for which a United States baccalaureate degree or its foreign equivalent 
is the minimum requirement for entry into the occupation"). Section 10 I (a)(32) of the Act states that ''[t]he term 
pr()[ession shall include but not be limited to architects, engineers, lawyers, physicians, surgeons, and teachers in 
elementary or secondary schools, colleges, academies, or seminaries." 
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Matter of W-L-Z-S- Corp. 
§ 214.2(1)(14)(ii)(D). The regulation at 8 C.F.R. § 214.2(1)(3)(v)(C) allows a "new office" operation 
no more than one year within the date of approval of the petition to support an executive or 
managerial position. There is no provision in USCIS regulations that allows for an extension ofthis 
period. .If a new office does not have the necessary staffing to sufficiently relieve the beneficiary 
from performing operational and administrative tasks, the petitioner is ineligible by regulation for an 
extension. 
The Petitioner claims to operate a "shoe business" and the record suggests that it was established to 
import and distribute shoes manufactured by its parent company in China. The company's 
organizational chart showed more vacancies than tilled positions, and all four subordinate employees 
documented at the time of tiling were working in sales roies. Specifically, the chart showed 
vacancies for marketing, accounting, bookkeeping, and warehouse positions and did not explain who 
was performing these functions at the time of tiling. The Beneficiary's job description referred to 
her involvement in production planning with the parent entity and import and export matters, but the 
Petitioner did not appear to have subordinates who assist her with these tasks, nor does it appear to 
have anyone responsible for distribution functions within the United States. The Petitioner did not 
provide evidence that it rents a warehouse, but its tax return shows that it reported $120,000 in rental 
expenses in the fiscal year ended on August 31, 2015 (the Petitioner's annual office rent according to 
its lease agreement is $30,000). It remains unclear whether the Petitioner had a warehouse facility at 
the time of filing and, if so, who was responsible for its activities. For these reasons, we cannot 
conclude that four subordinate sales staff would sufficiently relieve the Beneficiary involvement in 
other administrative and operational aspects of the Petitioner's import and wholesale business. 
The Petitioner states that the company expects to continue its growth would potentially have to close 
if the Beneficiary's status is not extended. Even though the enterprise is in a preliminary stage of 
organizational development, the Petitioner is not relieved from meeting the statutory requirement 
that it establish that the Beneficiary's duties were primarily managerial or executive at the time the 
extension is sought. If the business does not have the necessary staffing to sufficiently relieve the 
Beneficiary from performing operational and administrative tasks, the Petitioner is ineligible by 
regulation for an extension. 
On appeal, the Petitioner contends that the Beneficiary's position has all the necessary elements of a 
managerial or executive position, but does not elaborate. As explained above, these broad 
statements are not sufficient to meet the Petitioner's burden. We agree with the Director's 
determination that the evidence is insutlicient to establish that the Beneficiary will be employed in a 
managerial or executive capacity. 
III. DOING BUSINESS 
As the Petitioner did not demonstrate eligibility for this petition and our determination on the issue 
discussed above is dispositive of the appeal, we need not fully address other issues we have 
observed. With that said, we wish to inform the Petitioner of one additional issue that should be 
addressed in any future proceeding. Specifically, there are some unexplained discrepancies in the 
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Matter of W-L-Z-S- Corp. 
Petitioner's financial and business documentation which raise questions as to whether it was doing 
business during the previous year. See 8 C.F.R. § 214.2(1)(14)(ii)(B). 
The Petitioner submitted a copy of its federal tax return showing over $600,000 in sales for the year 
ended August 31, 2015, but it did not provide evidence documenting any individual business 
transactions, such as customs documentation or sales invoices, for its shoe business. In response to 
the RFE, the Petitioner submitted an exhibit labeled "business records." This exhibit included 
commercial invoices and customs documents relating to another New York company 
called '' ' and show that it imported paper napkins, cups and plates from Australia and 
China. None of the documents mention the Petitioner or appear related to its claimed wholesale 
shoe business, and the Petitioner did not explain any relationship it might have with 
In addition, the Petitioner's bank statements for 2015 do not show sut1iciently high deposits to 
reflect gross sales of $600,000. For these reasons, the tax return alone is insuf1icient to demonstrate 
that the Petitioner was doing 
business for the previous year. 
IV. CONCLUSION 
The appeal must be dismissed as the Petitioner did not establish that it will employ the Beneficiary 
in a managerial or executive capacity under the extended petition. 
ORDER: The appeal is dismissed. 
Cite as Matter o.fW-L-Z-S- Corp., ID# 321941 (AAO Apr. 7, 2017) 
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