dismissed L-1A Case: Wholesale Distribution

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\ 
U.S. Citizenship 
and Immigration 
Services 
MATTER OF S-I- INC. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: MAR. I, 2019 
APPEAL OF CALIFORNIA SERVICECENTER DECISION 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a wholesale distributor of hair extensions and accessories, seeks to continue the 
Beneficiary's temporary employment as its chief executive officer (CEO) under the . L-1 A 
nonimmigrant classification for intracompany transferees. Immigration and Nationality Act (the 
Act) section 10l(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 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 asserts that the evidence of record establishes that the Beneficiary spends 
100% of her time performing executive and managerial duties, supervises a subordinate managerial 
employee, and has sufficient lower level staff who perform the day-to-day activities required to 
operate its business. 
Upon de nova review, we will dismiss the appeal. 1 
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 10l(a)(15)(L) of the Act. In addition , the beneficiary 
must seek to enter the United States temporarily to continue rendering his or her services to the same 
employer or a subsidiary or affiliate thereof in a managerial or executive capacity. Id. . . 
1 The record reflects that the Petitioner submitted a new, properly executed Form G-28 on appeal. Therefore, we will 
recognize ___ the attorney who submitted the Form G-28, as the attorney of record in this proceeding. 
Matter ofS-1- Inc. 
II. DEFINITIONS 
"Managerial capacity" means an assignment within an organization in which. the employee primarily 
manages the organization, or a depaiiment, subdivision, function, or component of the organization; 
supervises and controls_ the worl<. of other supervisory, professional, or managerial employees, or 
manages an essential function within the organization, or a department or subdivision of the 
organization; has auth9rity ove~ personnel actions or functions at a senior level within the 
organizational hierarchy or with respect to the function managed; and exercises discretion over the 
day-to-day operations of the activity or function for which the employee has ·authority. · Section 
101(a)(44)(A) of the Act. 
"Executive capacity" is defined as an assignment within an organization in which the employee 
primarily: directs the management of the organization or a major component or function of the 
. organization; establishes the goals and policies of the organization, component, or function; 
exercises wide latitude in discretionary decision-making; and receives only general supervision or 
direction from higher-level executives, the board of directors, or stockholders of the organization. 
Section 101(a)(44)(B) of the Act. 
The Petitioner must show that the Beneficiary will perform certain high-level responsibilities 
consistent with the statutory definitions of managerial or executive capacity. Champion World, Inc. 
v. INS, 940 F.2d 1533 (9th Cir. 1991) (unpublished table decision). In addition, 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. USCIS, 
469 F.3d 1313, 1316 (9th Cir. 2006); Champion World, 940 F.2d 1533. 
III. U.S. EMPLOYMENT IN A MANAGERIAL OR EXECUTIVE CAPACITY ' ' . 
The sole issue to be _addressed is whether the· Petitioner established that it would employ the 
Beneficiary in a managerial or executive capacity under the extended petition. 
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 must clearly describe the duties to be 
performed by the Beneficiary and indicate whether such duties are in a managerial or executive 
capacity. See s·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. 
2 
· Matter ofS-1- Inc. 
A. Duties 
At the time of filing, the Petitioner provided a description of the Beneficiary's responsibilities as 
CEO, noting that she "serves at ~he highest level of the organizational hierarchy," "heads the 
management and executive team," and is. "the primary driver of the organization's strategic 
direction." It further listed her duties as follows (bullets added): 
• Responsible · for the successful allocation and deployment of the company's 
resources . 
• Establishes, plans, develops and implements all organizational policies, structures 
and goals 
• Contracts all necessary managerial personnel to accomplish set goals, and directly 
supervises, controls and evaluates the \\'.Ork of all supervisory and managerial 
personnel 
• Establishes salaries and employee benefits 
. • Prepares, develops and reviews budgets 
• . Negotiates and executes contracts on behalf of the company 
• Seeks strategic alliances for the company 
• . Formulates and implements all administrative, financial, developmental, and 
operational policies and procedures of the company 
The Petitioner stated that the Beneficiary "spends 100% of her time performing these duties." 
In a request for evidence (RFE), _the Director informed the Petitioner that the submitted description 
was lacking adequate detail regarding what the Beneficiary would be doing on a day-to-day basis. 
The Director requested additional information regarding the Beneficiary's actual daily tasks and the 
amount of time to be spent on each specific duty. 
In response to the RFE, the· Petitioner submitted a new letter which includeif the same duties as 
stated above. It did not provide the requested information regarding the percentage of time the 
Beneficiary would allocate to specific tasks and once again stated that the listed duties·would require 
100% of the Beneficiary'$ time. The Petitioner also added the following (bullets added): 
• Meet~ with the [Marketing and Sales Manager] each week to discuss daily and 
weekly data reports, compare each week's figures and data to previous periods, 
discuss any problems encountered, ... and disc·uss the plan and develop strategy 
and goals for the following week. · 
• Reviews reports on marketing, sales, and orders to analyze operations to evaluate 
company· and staff performance in meeting objectives and to determine areas of 
improvement or policy change. . 
• Establishes executive and management plans to maximize efficiency and quality 
of service, customer satisfaction, profitable growth, and cost effective execution 
and management of resources and planning. 
• Authorizes requests for disbursements and payments to outside parties. 
,., 
Matter of S-1- Jnc. 
• Monitors and evaluates financial and market data in establishing and 
implementing actions based on findings; 
• Analyzes market, economic, geographic, demographic, and competitive variables 
in developing plans. 
• Plans, develops, and establishes executive, management, operations, sales and 
marketing policies and objectives by reviewing activity reports, financial 
statements, and market conditions. 1 
• Makes all decisions regarding financi~l operations of the company, including 
financial forecasts and investments. 
• Directs the treasury function of the business, including establishing financial 
strategies, banking, risk management, and· credit arrangements. 
• Exercises full and complete discretion in all· budgetary, administrative, 
operational, developmental, and financial decision-making for our company. 
These additions did _not provide additional insight into the nature of the Beneficiary's day-to-day 
duties within the context of the Petitioner's business. The description conveys the Beneficiary's 
authority over the company as a whole, but is too broad and repetitive to clarify how the Beneficiary 
would spend her time on a regular basis as the CEO of a hair extension wholesale distribution 
company. 
For example, the Petitioner states that the Beneficiary establishes plans, policies and goals, 
"formulates and implements ... all operational policies and procedures," "plans, develops and 
establishes ... policies and objectives," and "establishes executive and management plans," and 
appears to list these as separate and discrete duties. However, all of these non-specific planning and 
policy-related responsibilities paraphrase the statutory definition of "executive capacity," appear to 
overlap,.and lack explanation regarding the actual tasks that will occupy the Beneficiary's time. The 
Petitioner did not provide any concrete examples ofpolicies, strategies, or goals the Beneficiary 
. would develop and implement in support of its claim that she spends a significant arriount of time on 
higher-level planning and decision-making responsibilities associated with the company's overall 
operation. 
The Petitioner's description also indicates that the Beneficiary is responsible for reviewing data 
reports, financial figures .and "reports on marketing sales and orders," as well as monitoring and 
evaluating "financiai" data and market reports," and analyzing "market, economic, geographic, 
demographic, and competitive variables." These data review and analysis duties, like the policy­
making duties discussed above, are repetitiye and appear to overl_ap, which makes it difficult to 
determine whether they are separate duties or how much time the Beneficiary devotes to t}).ese 
functions. The Petitioner indicates that several of the Beneficiary's duties concern oversight of the 
company's financial matters and "directing the treasury function," but the Petitioner does not employ 
an administrative staff member or other lower level employee to perform routine day-to-day tasks 
such as banking, invoicing, and bookkeeping. 
4 
Matter of S-1- Inc. 
Finally, some of the Beneficiary's assigned duties, such as negohatmg contracts and "seeking 
strategic alliances" are not explained in sufficient detail to be classified as managerial or executive in 
nature, absent specific examples of the type of contracts she negotiates or alliances she would form. 
Reciting the Beneficiary's vague job responsibilities or broadly-cast business. objectives is not 
sufficient; the regulations require a detailed description of the Beneficiary's daily job duties. The 
Petitioner did not provided the requested detail or explanation of the Beneficiary's activities in the 
course of her daily . routine.. The actual d_uties 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), qff'd, 905 
F.2d 41.(2d. Cir. 1990). 
Overall, although we do not doubt that the Beneficiary makes 
0
decisions regarding the company's 
overall direction, the Petitioner has not sufficiently demonstrated how her role requires her to spend 
her time primarily on the broadly defined responsibilities attributed to her, nor has it provided a 
sufficient explanation of her day-to-day tasks. The fact that the Beneficiary will direct a business as 
its owner and senior employee does not necessarily establish eligibility for classification as an 
intracompany transferee in a managerial or executive capacity within the meaning of section 
10l(a)(44) of the Act. The Petitioner's general overview of her responsibilities is insufficient to 
establish that her actual duti~s would be primarily managerial or executive in nature. 
B. Staffing and Organizational Structure 
The Petitioner has consistently . claimed that it has four employees: the Beneficiary (CEO), a 
marketing and sales manager who reports to the Beneficiary, and two lower level employees who 
report to the marketing and sales manager - a marketing and sales assistant and an overseas sales 
representative. 2 · 
The statutory definition of "managerial capacity" allows for both "personnel · managers" and 
"function managers." See ~ection 10l(a)(44)(A) of the Act.3 Personnel managers are required to 
primarily supervise and control the work of other supervisory, professional, or managerial 
employees. Contrary to the common understanding ofthe·word "manager," 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."4 Id. If a 
2 The Petitioner provided a copy of its Florida quarterly wage report for the first quarter of 2018 and its payroll summary 
for the months of April and May 2018. · This evidence corroborates the Petitioner's employment of the individuals 
named on its organizational chart at the time of filing in May 2018. 
3 The Petitioner does not claim that the Beneficiary acts as a function manager. 
4 In evaluating whether a beneficiary manages professional employees, we must evaluate whether the subordinate 
positions require a baccalaureate degree as a minimum for entry into the tie Id of endeavor. Cf 8 C.F.R. § 204.5(k)(2) 
( defining "profession" to mean "any occupation for which a U.S. baccalaureate degree or its foreign equivalent is the 
1ninimum requirement for entry into the occupation"). Section IO I (a)(32) of the Act, states that "[t]he term profession 
shall include but not be limited to architects, engineers, lawyers, physicians, Surgeons, and teachers in elementary or 
secondary schools, colleges, academies, or seminaries." Here, the Petitioner states that all of the subordinate employees 
have bachelor's degrees but it did not articulate a claim that she supervises professionals or provide evidence of the 
5 
Matter of S-I- Inc. 
beneficiary directly supervises-other employees, the beneficiary must also have the authority to hire 
and fire those employees, or recommend those actions, and take other personnel actions. 8 C.F.R. § 
214.2(1)( 1 )(ii)(B)(3). 
As noted, the Petitioner indicates that its four-person company has a three-tiered structure with a 
CEO, a "middle manager," and two lower-level staft: The Petitioner states tha.t the Beneficiary's 
direct subordinate ·performs supervisory duties that include managing, training, and evaluating-the 
work of the lower-level staff and establishing their goals· and schedules: However, we cannot 
determine how much of the Beneficiary's time would be spent on management of her one 
supervisory subordinate because the Petitioner did not provide the requested breakdown of the 
Beneficiary's day-to~day tasks and the amount of tiine the Beneficiary would spend on specific 
duties. The submitted job description does not reflect that her primary role is that of a personnel 
manager as there are few mentions of supervisory functions among the broad duties listed. 
The Petitioner has consistently claimed that the Beneficiary will be employed in a "managerial and 
executive capacity." 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 
101(a)(44)(B) of the Act. Under the stafute, a benefic_iary must have the ability·to "direct the 
management" and "estabHsh the goals and policies" of that organization. Inherent to the definition, 
the beneficiary must primarily focus on the broad goals and policies of the organization rather than 
the day-to-day operations of the enterprise. An individual will not be deemed an executive under the 
statute simply because they have an executive title or because they "direct" the enterprise as 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 organizadon." Id. 
As noted, the Petitioner submitted a broad description of the Beneficiary's responsibilities~ portions 
of which resemble or paraphrase the statutory definition of executive capacity. While the Petitioner 
indicates that the Beneficiary spends 100% of her time on qualifying duties, we must evaluate this 
claim by taking into. account;the totality of the evidence, including the duties of the subordinate stat1: 
and the ability of those . staff to . relieve the Beneficiary from involv~ment in the day-to-day 
operations of the business_. 
As required by section 10l(a)(44)(C}ofthe 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 
conjunc~ion. 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. v. USCIS; 469 F.3d 1313 
employees' degrees. Rather, the Petitioner emphasizes that the Beneficiary's direct subordinate is a managerial or 
supervisory employee. 
6 
.
Matter of S-1- Inc. 
(9th Cir. 2006); 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. 
The job duties provided for the subordinate staft like the Beneficiary's duties, are stated in general 
terms and lack references to the actual nature of the business the Petitioner operates and the products 
it sells, which limits the probative value of the descriptions ·. For example , the Petitioner states that 
the marketing and sales assistant "presents and explains rates and service agreements to customers ," 
a task that appears to be incongruous with the company's business as a wholesaler of hair 
extensions. The marketing and sales manager ' s position also contains anomalous references to 
reviewing "customer specifications and related information to determine requirements," and training 
staff on the company's "services" and "tools." The Petitioner does not claim to operate a business 
that involves entering service agreements, providing services, or gathering customer ·specifications 
and requirements. These references raise questions as to whether the Petitioner has provided a 
complete and accurate account of the duties performed by its emplo yees. · 
The Petitioner indicates that the overseas sales representative and marketing and sales assistant 
perform many of the same duties, including contacting customers to solicit orders, attending trade 
shows, assisting in marketing development and product releases, and customer service. However , 
the Petitioner_ indicates that the overseas sales representative also performs all functions related to 
logistics, import-export , customs declarations , and shipping and delivery of products to customers , 
duties which appear to be atypical for a sales employee. It is unclear how the sales repre.sentative 
divides his or her time between these functions , or whether any shipping functions he performs are 
limited to overseas business . Further , we note that the Petitioner submitted a number of screenshots 
from its website (http :/. .com) , which we have also consulted. The website refers to the 
individual who holds the "overseas sales representative" position as the company's co-founder and 
suggests that he or she leads the company alongside the Beneficiary, which raises question regarding 
the accuracy of the job description submitted for this individual. 
As noted above, the Petitioner does not claim to have any administrative staff or a bookkeeper to 
handle the company's day-to-day administrative , banking and financial matters and the Beneficiary 
is the only perscin claim ed to be responsible for the financial function: The Petitioner also does not 
have any staff who a"re claimed to source and purchase its inventor y, despite the fact that the 
company reported over $720 ,000 in purchas es on its 2017 federal tax return , and its bank statements 
reflect regular withdrawals for purchases of hair produGtS from companies in the United States and 
China. Further, the submitted evidence (specifically , the Petitioner ' s websit~) refers to the 
company ' s "quality control staff' and a "shipping departm ent" which do not appear to exist within 
the organizational chart submitted with the petition. We will not assume that the· Beneficiary's 
subordinates, who are presented as sales and marketing staff, are responsible for all of these 
activities . Accordingly, the record does not establish that the Beneficiary would be relie·ved from 
significant involvement in day-to-da y administrative , financial , purchasing , and other non­
managerial and non-executive functions necessary for the operation of the business. 
.1 
Matter of S-1- Inc. 
We interpret the statute to prohibit discrimination against small or medium-size businesses. 
However, the statute requires all petitioners to establish that a given beneficiary's position 
"primarily" consists of managerial or executive duties, and that it has sufficient personnel to relieve 
a beneficiary from performing operational and .administrative tasks. 
Here, the Petitioner has not provided a clear breakdown of the Beneficiary's actual duties, and has 
not provided sufficient probative information regarding how all of the day-to-day duties of its hair 
extension wholesale distribution business are divided among the three-person subordinate staff, 
particularly since those staff members are claimed to be primarily focused sales and marketing. The 
Petitioner has not met its burden to show that it reasonably requires the Beneficiary to spend her 
. time primarily on the claimed managerial or executive duties. 
For the reasons discussed, the Petitioner has not established that it would employ the Beneficiary in 
a managerial or executive position under the extended petition. 
IV. CONCLUSION 
The appeal will be dismissed for the above stated reasons. In visa petition proceedings, it is the 
petitioner's burden to establish eligibility for the immigration benefit sought. Section 291 of the Act, 
8 U.S.C. § 1361. The Petitioner has not met that burden. 
ORDER: The appeal is dismissed. 
Cite as Matter of S-1- Inc., ID# 1943150 (AAO Mar. 1, 2019)