dismissed L-1A Case: Wine Importation

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MATTER OF 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: APR. 24, 2017 
APPEAL OF CALIFORNIA SERVICE CENTER DECISION 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER .. 
The Petitioner, a wine importer, seeks to temporarily employ the Beneficiary as its chief operating 
officer (COO) and one of its regional sales managers under the L-1 A nonimmigrant classification for 
intracompany transferees. See Immigration and Nationality Act (the Act) section 10l(a)(l5)(L), 
8 U.S.C. § 110l(a)(l5)(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 Petitioner did 
not establish, as required, that it will employ the Beneficiary in the United States in a managerial or 
executive capacity. 
On appeal, the Petitioner submits additional evidence and asserts that the Director erred by 
disregarding the Beneficiary's detailed job description and substantial evidence of eligibility. 
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 101(a)(l5)(L) of the 
Act. 
By regulation, an individual petition filed on Form 1-129, Petition for a Nonimmigrant Worker, must 
include evidence that the Petitioner will employ the Beneficiary in an executive, managerial, or 
specialized knowledge capacity, including a detailed description of the services to be performed. 
See 8 C.F.R. § 214.2(1)(3)(ii). 
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Matter of 
II. U.S. EMPLOYMENT IN AN EXECUTIVE CAPACITY 
The Director found that the Petitioner did not establish that it will employ the Beneficiary in a 
managerial or executive capacity. On appeal, the Petitioner states that it submitted enough evidence 
and information to establish eligibility. We disagree, as explained below. 
Throughout the proceeding, the Petitioner has stated that it seeks to employ the Beneficiary in an 
executive capacity. Therefore, we restrict our analysis to whether the Beneficiary will be employed 
in an executive capacity. 1 . 
An "executive capacity" is "an assignment within an organization in which the employee primarily": 
(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, orfunction; 
(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 101(a)(44)(B) ofthe Act. 
If staffing levels are used as a factor in determining whether an individual is acting in a managerial 
or executive capacity, U.S. Citizenship and Immigration Services (USCIS) must take into account 
the reasonable needs of the organization, in light of the overall purpose and stage of development of 
the organization. See section 10l(a)(44)(C) ofthe Act. 
A. Duties 
When examining the executive capacity of the Beneficiary's intended position, 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). 
The definition of executive capacity has two parts. First, the Petitioner must 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 
1 On appeal, the Petitioner observes that, "[a]t all times," it has called the Beneficiary's intended position "an executive 
position," but that the Director, nevertheless, also determined that the position does not qualify as managerial. The 
Petitioner does not 
contest that determination. 
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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 1533. 
The Petitioner referred to the Beneficiary's intended position by two different titles, specifically 
COO and regional sales manager. Each title appears more than once, indicating that neither 
appeared through error or oversight. A proposed organizational chart (to be discussed below) 
identified the Beneficiary as the Petitioner's COO, and also as one of three U.S. regional sales 
managers. The Petitioner stated: "As a Chief Operating Officer ... , [the Beneficiary] will be 
managing the regional customers/accounts (distributors) in the territories he will represent." 
The Petitioner listed the Beneficiary's intendedresponsibilities, with the approximate percentage of 
time to be devoted to each. The four-page description, too long to quote here in full, includes these 
seven areas of responsibility: 
Establish and carry out departmental or organizational goals, policies, and procedures 
-10% 
Analyze financial statements, sales reports, and other performance indicators. 
Identify places to cut costs and to improve performance, policies, and programs -
15% 
Management and Operations - 25% 
Human Resource Management - 15% 
Consult with CEO [chief executive officer], staff, and board members about general 
operations - 20% 
Negotiate or approve contracts and agreements- 15% 
Here are some key details quoted from various parts of the full description: 
• [The Beneficiary] will be focusing on establishing and developing relationships 
with retail chains [in the Western United States] ... while directing sales 
managers and promoters 
• He will be carrying out the Company's operational planning together with the 
CEO/President. Among his duties, he is responsible for directing the warehouse 
in the West Coast, hiring Promoters, launch a new line [of] wines, and hire a key 
account manager for the off-trade and on-trade. 
• [The Beneficiary] will be working with and supervising the US Office Manager at 
the office which provides logistic support to the company. 
is the office manager who reports to the Executives. 
• Oversees national and international organization and company structure 
• Manages human resources of organization for national and international markets 
• Has ... discretion over the day-to-day operations of the activity or function [the 
Beneficiary] manages. 
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• Supervise and control the work of other regional managers of the organization and 
provides necessary support. 
• Collaborates with other Regional Sales Managers for cognition of best sales 
practices that support the [Petitioner's] business model 
• [The Beneficiary] will be directing sales managers, promoter and logistic 
employees and working with the US legal and CPA consultants. 
The Petitioner stated that its "Board delegates responsibility for manag~ment and day-to-day 
operations to the COO and he has the authority to carry out these responsibilities .... [The 
Beneficiary] will report directly to the CEO and Board of Directors." 
The Petitioner also indicated that the Beneficiary "is scheduled to work at the 
Office," but then stated that the Beneficiary would work at the following locations: 
• Office: 6 weeks per year 
• Office: 12 weeks per year 
• Italy: 6 weeks per year 
• Off-site: 24 weeks per year [visiting customers] 
CA 
The Petitioner also described the "type of customers/accounts" with which the Beneficiary will 
work, stating that he will manage more than 20 local distributors in 13 U.S. states and has the "basic 
function to make sure that the distributors purchase the products and to ensure repeat sales to the 
distributor." The Beneficiary would also work with retailers (the distributors' clients) by 
"overseeing the placement of point-of purchase displays; running sales promotions ... ; providing 
product education to the retailers, and running events at on- and off-premise retailers." 
A separate job description referred to the Beneficiary as an "independent contractor" with the 
following responsibilities as regional sales manager: 
• In charge of reaching the targets and goals set for his department. 
• Establishes, maintained and expanded his customer base 
• Services the needs of company's existing customers 
• Explores various routes to market 
• Sets sales targets for individual importers 
• Monitors importer's performances and motivating them 
• Compiles and analyzed sales figures 
• Manages and dealt directly with all wine importers 
• Conducts customer feedback and market research 
• Reports to Chief Executive Officer. ... 
• Follows up to date with products and competitors 
The travel schedule indicates that the Beneficiary would spend half his time traveling to meet with 
customers. This information suggests that the Beneficiary will perform substantial duties in his sales 
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role, which would limit the amount of time he would have available to perform any claimed 
managerial duties associated with the COO position. Also, the Petitioner does not employ any 
subordinate sales staff (although there are contracts with two local marketing companies). 
The Director issued a request for evidence (RFE), asking for more information about the 
Beneficiary's intended duties and responsibilities. In response, the Petitioner repeated the previous 
job description, with some added passages emphasizing the Beneficiary's discretionary authority. 
The Petitioner stated that, as COO, the Beneficiary will: 
• Oversee sales team by territory 
• Develop and maintain good relationships with current and future distributors 
• Introduce new products the CEO negotiated to the network of US distributors 
• [Be] [r]esponsible for quality control and proper service of each account. 
• [Be] [r]esponsible for overseeing contracts nationwide 
A new set of job descriptions showed the Beneficiary's duties as a regional sales manager as before, 
but included a new passage stating: "this job description is for services prior to visa application. 
Upon visa approval, his job position ... is COO." Nevertheless, the Petitioner submitted two more 
organizational charts which, like before, showed the Beneficiary both as the COO and as a regional 
sales manager. 
The Director found that the Petitioner did not provide enough information about the Beneficiary's 
day-to-day tasks to show that his position is primarily managerial or executive. On appeal, the 
Petitioner states: "The Director did not consider the lengthy and detailed analysis, percentage of the 
job duties, and travel itinerary" and other evidence that established· that the Beneficiary will work in 
an executive capacity. 
The described duties address the first element of the definition of an executive capacity, in that the 
Petitioner claims the Beneficiary would direct the management of the organization or a major 
component or function thereof. But the Petitioner has not shown that the Beneficiary will establish 
goals and policies, exercise wide latitude in discretionary decision-making, or receive only general 
supervision or direction from higher-level executives and the board of directors. Section 
10l(a)(44)(B) of the Act. Instead, it appears that the Beneficiary would be implementing goals, 
policies, and decisions formulated by the CEO, as shown by this breakdown that the Petitioner 
submitted: 
CHIEF EXECUTIVE OFFICER CHIEF OPERATING OFFICER 
• Responsible for the company['s] • Oversee sales team by territory 
entire operations • Develop and maintain good 
• Focus on existing recurring clients relationships with current and 
• Improve relationships with future distributors. 
existing clients • Introduce new products the CEO 
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• Introduce new products and 
services to the company's portfolio 
• Responsible for annual budget 
• Visit 
producers and major clients 
• Enter into partnership/agreements 
with new producers and 
distributors 
• Develop special projects 
negotiated to the network of US 
distributors. 
• Responsible for quality control 
and proper service of each 
account. 
• Responsible for overseeing 
contracts nationwide. 
The Petitioner has consistently described the Beneficiary's position as that of an executive, but the 
Petitioner has not shown that the intended position rises to that level of authority or responsibility. 
Instead, the record shows some degree of oversight over another regional sales manager and 
contractors, with the Beneficiary spending the majority of his time away from the Petitioner's 
offices, primarily on sales trips. We cannot conclude that the Beneficiary would primarily perform 
executive level duties if he will be spending half of his time performing sales duties alongside the 
Petitioner's other regional sales staff. 
In evaluating the evidence, the truth is to be determined not by the quantity of evidence alone but by 
its quality. Matter o.fChawathe, 25 I&N Dec. 369, 376 (AAO 2010). The Petitioner has submitted a 
lengthy job description for the Beneficiary, and evidence that the company has hired contractors and 
employees to carry out many of the company's tasks, but the evidence, regardless of its quantity, 
does not show that the Beneficiary would primarily act in an executive capacity. 
B. Staffing 
Beyond the required description of the job duties, USCIS reviews the totality of the record when 
examining the claimed 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. 
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 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 a 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 an 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." !d. 
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We note that a company's size alone, without taking into account the reasonable needs of the 
organization, may not be the determining factor in denying a visa petition for classification as a 
multinational manager or executive. See section 10l(a)(44)(C) of the Act. However, it is 
appropriate for 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. See e.g., Family Inc., 469 F.3d 1313; Systronics Corp. v. 
INS, 153 F. Supp. 2d 7, 15 (D.D.C. 2001). 
On its Form I-140, asked how many employees it had "in the U.S.," the Petitioner stated that it had 
"three full time employees and a total of 14 independent contractors." A list of job descriptions 
indicated that the three employees are the CEO and two regional sales managers (one of whom the 
Petitioner also called the national sales manager). The list also indicates that most of these workers 
are abroad, not "in the U.S." as claimed on the petition. 
The Petitioner 's proposed organizational chart showed the listed individuals, along with contracted 
support firms (designated by dashed lines): 
Shareholders - Board of Directors 
I 
Chief Executive and Purchasing --Comm. Assistant 
I 
COO [the Beneficiary] 
Legal Service -
- - - - - - - - +------T[ rade] Marketing - Assistant 
Supply Chain Manager Commercial Director 
I I 
Accountant 
~--CPA POs and Invoicing Specialist Brand Manager 
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Bookkeeper and Treasurer Three Regional Sales Managers 
[including the Beneficiary] 
I l_ -Compliance 
Two Resident Sales Managers 
The proposed chart is largely identical to the current chart, except that the current chart lacks a COO 
position, and lists the Beneficiary only once, as one of the regional sales managers. The similarity 
between the charts indicates that the Petitioner has previously functioned with the same 
organizational structure without a COO. 
Other information in the record indicates that the organizational chart does not simply depict the 
Petitioner's organizational structure. Rather, most of the people named on the chart actually work 
(as employees or contractors) for the two foreign companies that jointly own the petitioning entity. 
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Seven of the names on the above organizational chart also appear on the chart for The Winy Way 
Group, which owns half of the petitioning company. (The Beneficiary is a shareholder, director, and 
COO of 
The chart identified the "Bookkeeper and Treasurer" as ' [sic]." Elsewhere, the 
Petitioner called "the office manager who reports to the executives" and "a logistic 
and operations officer." These inconsistencies raise questions about actual 
responsibilities with the company. job description calls him an "[i]ndependent 
contractor" who "[r]eports to Chief Executive Officer" and handles the following functions: 
• Compliance 
• Order Processing 
• Bookkeeping 
• Taxes 
• Reporting 
The job description also states that would: 
• Maintain 
corporate operations at headquarters office in 
• Serves as the central communications hub of the company, managing relationships 
with customers, suppliers, sales reps and management. 
• Maintain database of customers, pricing, business contracts, supplier products specs 
and other details. 
The RFE response includes a letter from stating that he is "in charge of logistics, 
bookkeeping, compliance and payments for" the Petitioner. He did not claim the other duties that 
the Petitioner has attributed to him, although he signed a contract in 2014 calling himself the 
Petitioner's "Operations Manager." 
The Petitioner has variously indicated that reports directly to the Beneficiary, the 
bookkeeper, and the CEO. The Petitioner has not provided consistent information about 
role within the company or his place within its hierarchy. 
While the Petitioner claims three employees in the United States, it has documented payments to 
only two employees, specifically the CEO and variously identified as a regional sales 
manager and the Petitioner's national sales manager. job description reads: 
• Market level expert. Manage day-to-day performance, distributor information 
systems and local market data. 
• Monitor progress against channel specific objectives and suggest course 
correction where necessary thru the market team. 
• Distributor Management in key states .... 
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• Communication to the distributor resources, tactical programs and overall 
strategic imperatives. 
• Manage all local resources to obtain a disproportionate share of mind to 
concentrate on growing KPis Conduct "work-withs" with distributor selling 
organization to ensure execution against KPis. 
• Orchestrate sell-through activities with distributor resources in market. 
• Work with distributor team to leverage, and ensure proper execution of all 
assigned sales activities. Create and maintain key market relationships thru 
focused customers and distributor engagement to maximize awareness of all the 
brands portfolio in the market. 
• Provide training of distributor reps and retailers on [the Petitioner's] brands and 
target consumers; including use of ambassadors and other educational resources. 
• Building existing and new distributor relationship to increase sales and build 
brand recognition 
• Work hand in hand with our wineries (25 wineries) to market new vintages, 
marketing direction & Trends 
• Establish visibility in the competitive wine market 
• Reports to Chief Executive Officer 
The above description appears to refer to elements of infrastructure that the Petitioner has not fully 
documented, such as a "market team," "ambassadors," and a "distributor information system."2 
In the denial notice, the Director stated that the Petitioner had not documented the employment of 
most of the people named on the organizational charts. The Director concluded that the Petitioner 
had not established sufficient organizational complexity to warrant a managerial or executive 
position. 
On appeal, the Petitioner cites Matter of Z-A-, Inc., Adopted Decision 2016-02 (AAO Apr. 14, 
20 16), to support the assertion that we "must assess all relevant evidence in the record concerning 
the beneficiary's position within the wider 'qualifying organization,"' including the foreign 
compames. 
We must also, however, assess the Beneficiary's prior or existing role with the larger organization. 
The Beneficiary's pre-existing role with already gives him authority over that 
entity's foreign employees, and the Petitioner has not indicated that the Beneficiary would relinquish 
that role if granted L-1A status. The Beneficiary would not become an executive of the U.S. 
company by keeping his existing authority over foreign workers while taking on a new title at the 
U.S. company. The Petitioner has not shown that the petitioning U.S. company employs or pays 
those foreign workers. Rather, they work for to which the Petitioner 
2 The Petitioner has identified a " employed not by the Petitioner but by a 
related holding company in Italy. The Petitioner has not documented this individual's employment or the extent of his 
activities in the United States. 
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provides support services as an importer. The Petitioner appears to operate essentially as a sales 
office for the foreign shareholders, and currently lacks the organizational complexity and layers of 
management that would warrant an executive-level COO position. 
The Petitioner stated that it "has the support of strategic employees and other services provided" by 
its two European shareholders. The Petitioner has not explained how this support from Europe 
would extend to relieving the Beneficiary from having to perform extensive, hands-on account 
management and sales responsibilities in the United States, including direct contact with distributors 
and their customers which, as discussed, will require extensive travel and consume half of his time. 
On appeal, the Petitioner states: "In early 2015, Petitioner acquired a US 
distribution company located in the North East," from a corporation in Maine. The 
appeal includes a photocopy of a "Business Asset Sale Closing Agreement" from January 12, 2015, 
but it does not identify the assets purchased. The Petitioner contends that this acquisition increased 
the organization's complexity. The Petitioner's organizational charts and employee lists do not 
reflect the addition of any personnel or job titles resulting from the acquisition. The Petitioner has 
identified office and storage facilities at various U.S. locations, but none in Maine. 
The Petitioner's evidence does not draw a clear line between the activities of foreign companies such 
as which the Beneficiary already oversees, and those of the petitioning U.S. 
entity. The Petitioner has stated that the Beneficiary should be considered an executive abroad 
because of his work with and that his work with that same company's 
employees and contractors should also count toward a finding that he will be an executive in the 
United States. We do not find this assertion to be persuasive. The Beneficiary's authority over a 
foreign company with overseas employees does not become a U.S. executive position when the 
Beneficiary exercises that authority from an office in the United States. 
III. CONCLUSION 
The Petitioner has not established that it intends to employ the Beneficiary in an executive capacity 
in the United States. 
ORDER: The appeal is dismissed. 
Cite as Matter of ID# 305129 (AAO Apr. 24, 2017) 
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