remanded L-1A Case: Automotive

U.S. Citizenship 
and Immigration 
Services 
In Re: 16402403 
Appeal of Texas Service Center Decision 
Form I-129, Petition for L-IA Manager or Executive 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: JULY15,2022 
The Petitioner, an automobile dealer and provider of vehicle repair services, seeks to continue 
employing the Beneficiary temporarily as its "Director" under the L-1 A nonimmigrant classification 
for intracompany transferees. 1 See Immigration and Nationality Act (the Act) section 101 ( a )(15)(L), 
8 U.S.C. § 1101(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. 
Although the petition was approved, upon further review and subsequent to a post adjudicative site 
visit, the Director of the Texas Service Center revoked the approval of the petition concluding that the 
Petitioner did not establish, as required, that the Beneficiary's proposed employment would be in a 
managerial or executive capacity. The Director also entered a separate finding of "fraud or willful 
misrepresentation of a material fact." The matter is now before us on appeal. 
In these proceedings, it is the Petitioner's burden to establish eligibility for the requested benefit. See 
Section 291 of the Act, 8 U.S.C. § 1361. Upon de nova review, we conclude that the Director did not 
provide an adequate analysis to support a finding of fraud or misrepresentation. Therefore, we will 
remand the matter for further consideration and entry of a new decision. 
I. LEGAL FRAMEWORK 
To establish eligibility for the L-1 A nonimmigrant visa classification, a qualifying organization must 
have employed the beneficiary "in a capacity that is managerial, executive, or involves specialized 
knowledge," for one continuous year within three years preceding the beneficiary's application for 
admission into the United States. Section 101(a)(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 Petitioner previously filed a "new office " petition on the Beneficiary's behalf which was approved for the period 
February 11, 2016, until December 15, 2016. A "newoffice"is an organization that has been doing business in the United 
States through a parent , branch , affiliate, orsubsidiaryfor less than one year . 8 C.F.R. § 214.2(1)(1 )(ii)(F). The regulation 
at 8 C.F.R. § 214.2(1)(3)(v)(C) allows a "new office" operation one year within the date of approval of the petition to 
support an executive or managerial position. 
A petitioner seeking to extend an L-1 A petition that involved a new office must submit a statement of 
the beneficiary's duties during the previous year and under the extended petition; a statement 
describing the staffing of the new operation and evidence of the numbers and types of positions held; 
evidence of its financial status; evidence that it has been doing business for the previous year; and 
evidence that it maintains a qualifying relationship with the beneficiary's foreign employer. 8 C.F.R 
§ 214.2(1)(14)(ii). 
In addition, under U.S. Citizenship and Immigration Services regulations, the approval of an L-lA 
petition may be revoked on notice under six specific circumstances. 8 C.F.R. § 214.2(1)(9)(iii)(A). 
To properly revoke the approval of a petition, a director must issue a notice of intent to revoke that 
contains a detailed statement of the grounds for the revocation and the time period allowedforrebuttal. 
8 C.F.R. § 214.2(1)(9)(iii)(B). 
II. WILLFUL MISREPRESENTATION OF MATERIAL FACTS 
To make a finding of willful misrepresentation of a material fact in visa petition proceedings, an 
immigration officer must determine: 1) that the petitioner or beneficiary made a false representation 
to an authorized official of the United States government; 2) that the misrepresentation was willfully 
made; and3)thatthe fact misrepresented was material. SeeMatterofM-, 6 I&NDec. 149 (BIA 1954); 
MatterofL-L-, 9 I&N Dec. 324 (BIA 1961); Matter of Kai Hing Hui, 15 I&N Dec. 288 (BIA 1975). 
As outlined by the Board of Immigration Appeals, a material misrepresentation requires that one 
willfully makes a material misstatement to a government official for the purpose of obtaining an 
immigration benefitto which one is not entitled. Mattera/Kai Hing Hui, 15 I&NDec. at 289-90. The 
term "willfully" means knowing and intentionally, as distinguished from accidentally, inadvertently, 
or in an honest belief that the facts are otherwise. See Matter ofTijam, 22 I&N Dec. 408, 425 (BIA 
1998); Matter of Healy and Goodchild, 17 I&N Dec. 22, 28 (BIA 1979). To be considered material 
the misrepresentation must be one which "tends to shut off a line of inquiry which is relevant to the 
alien's eligibility, and which might well have resulted in a proper determination that he be excluded." 
Matter of Ng, 17 I&N Dec. 536,537 (BIA 1980). 
Here, the revocation is based, in part, on a finding of "fraud or willful misrepresentation." However, 
despite noting that "the [B]eneficiary and the [P]etitioner have issued conflicting testimony, under 
penalty of perjury ... which shows a misrepresentation to gain an immigrant benefit," the notice of 
intent to revoke (NOIR) did not clearly inform the Petitioner that the Director may make a finding of 
fraud or willful misrepresentation and thus it did not fully provide the Petitioner with an opportunity 
to address the derogatory information. As such, we remand to allow the Director to reissue the NOIR 
and allow the Petitioner an opportunity to respond. 
Further, in making an ambiguous finding of "fraud or willful misrepresentation," the Director 
neglected to separate the elements of fraud and willful misrepresentation orto adequately discuss those 
elements within the context of the relevant factors that contributed to the finding. Although the 
Director noted that the record contained "conflicting testimony" and "inflated" descriptions of 1he 
Beneficiary's proposed position and the Petitioner's business, the Director's decision did not set for1h 
how these deficiencies rise to the level of fraud or willful misrepresentation. The Director also did 
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not clearly identify the subject of the finding, whether the finding was being made against the 
Petitioner, the Beneficiary, or against both parties in order to allow the Petitioner to respond to the 
alleged fraud or misrepresentation. 
In light of deficiencies described above, we are currently unable to affirm the Director's finding of 
"fraud or willful misrepresentation." 
III. U.S. EMPLOYMENT IN AN EXECUTIVE CAPACITY 
Notwithstanding the errors noted above, we additionally note continued deficiencies related to other 
identified issues in that the Petitioner did not establish that the Beneficiary's U.S. position would be 
in an executive capacity. 2 The remainder of this decision will address the evidentiary deficiencies of 
this 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 101 (a)(44)(B) of the 
Act. 
Based on the statutory definition of executive capacity, the Petitioner must first show that the 
Beneficiary will perform certain high-level responsibilities. Section 101 (a)( 44 )(A) of the Act. The 
Petitioner must also prove that the Beneficiary will be primarily engaged in executive duties, as 
opposed to ordinary operational activities alongside the Petitioner's other employees. See Family Inc. 
v. USCIS, 469 F.3d 1313, 1316 (9th Cir. 2006). 
The description of the job duties must clearly describe the Beneficiary's duties and indicate whether 
such duties are in a managerial or an executive capacity. See 8 C.F.R. § 214.2(1)(3 )(ii). Beyond the 
required description of the job duties, we examine the employing company's organizational structure, 
the duties of the Beneficiary's subordinate employees, the presence of other employees to relieve the 
Beneficiary from performing operational duties, the nature of the business, and any other factors that 
will contribute to understanding the Beneficiary's actual duties and role in a business. 
Accordingly, we will discuss evidence regarding the Beneficiary's job duties along with evidence 
concerning the nature of the Petitioner's business and its staffing levels. 
A. Factual Background 
At the time of filing, the Petitioner claimed to have a 12-person staff comprised of six in-house 
employees and six contractors. In a supporting cover letter, the Petitioner stated that it was providing 
vehicle repair and maintenance services and selling new and used automobiles and auto parts at a 
10,000 square foot commercial facility. The Petitioner anticipated that a website with e-commerce 
2 The Petitioner claims that the Beneficiazywould be employed in the United States in an executive capacity and does not 
claim that the Beneficiary would be employed in a managerial capacity. 
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features, once fully developed, would account for "a significant and growing proportion of sales and 
services ... as well as wholesale distribution relationships." The Petitioner claimed that the 
Beneficiary would perform executive-level duties and assume a leadership role in expanding the U.S. 
operation based on his "experience, expertise and commercial relationship with providers." The 
Petitioner stated that the Beneficiary sets corporate policies and oversees managerial and professional 
employees who relieve him from having to perform "the services of the company." In support of these 
claims, the Petitioner provided a list of the Beneficiary's responsibilities as well as a job duty 
breakdown listing his duties and their respective time allocations. 
The record also contains job descriptions for five in-house employees and an organizational chart 
depicting the placements of those employees as well as the Beneficiary, two vacant positions, and 
outsourced contractors. The organizational chart depicts a five-tier organization with the Beneficiary 
at the top tier in the position of "executive director," overseeing an accountant and "legal adviser" at 
the second tier and an administrative coordinator at the third tier. The fourth tier is comprised of a 
secretary, which was indicated as "vacant," a sales manager, market services employee, a mechanic 
department supervisor, and a warehouse coordinator, all depicted as subordinate to the administrative 
coordinator. The bottom tier includes a vacant customer service/sales representative position as 
subordinate to the sales manager and four businesses and one individual contracted as mechanics who 
are depicted as subordinate to the mechanic department supervisor. 
Further review of the record and findings from a 2019 site visit and compliance interview prompted 
the Director to issue the previously referenced NOIR to notify the Petitioner of factors that may 
adversely affect its eligibility. In sum, the Director found that the Petitioner inflated the Beneficiary's 
proposed position and the complexity of its business operation and did not establish that it would 
employ the Beneficiary in an executive capacity. In addition, the Director observed that the 
Petitioner's description of its operations was inconsistent with the activities observed during the site 
visit, noting that the Petitioner's current operation is housed at a location that includes a 3000 square­
foot car lot and 1000 square-foot commercial building, which is considerably smaller than the 10,000 
square-foot premises the Petitioner claimed to occupy at the time of filing. 
The Petitioner responded to the NOIR, claiming thatthe Beneficiary exercises discretion in overseeing 
"all aspects of [the] organization," works "closely with government entities and the public," is "the 
face of the company," and performs "executive functions" with respect to business goals and 
objectives, staff recruitment, and the company's legal compliance, finances, and "culture." and " 
The Petitioner stated that its change in location was part of a "business strategic decision" that did not 
affect the company's operation or staffing, which included six full-time employees and used six 
"subcontractors/services" to support the Beneficiary's position at the time of filing; it provided 
quarterly tax returns, wage reports, and copies of checks, explaining that quarterly tax returns for 2017 
reflected additional hires "to fill the vacant positions." 
In revoking approval of the petition, the Director stated that the Petitioner did not adequately descnbe 
the Beneficiary's proposed position and noted that during the 2019 site visit the Beneficiary was 
observed carrying out non-executive job duties and having no managers or professional subordinates. 
Although the Director acknowledged the Petitioner's submission of an organizational chart illustrating 
different management levels, he determined that the Petitioner did not demonstrate that it was 
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adequately staffed and that it comprised a complex organizational hierarchy that would support the 
Beneficiary in an executive role and allow him to focus on the broad goals and policies of the 
organization. The Director also questioned the likelihood that the Beneficiary would be required to 
report to the foreign organization, given the Beneficiary's ownership interest in that organization. 
B. Analysis 
As a preliminary matter, we note that 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 ). Thus, any plans the Petitioner may have had to hire additional 
employees or to conduct business activities that were not part of its operation when the petition was 
filed are not relevant to the issue of whether the Petitioner was eligible at the time offiling. That said, 
the Petitioner points out that the 2019 site visit took place more than two years after the petition was 
filed and states that "the subordinate staff were bigger [sic] enough to relieve the beneficiary from 
having to spend his time performing primarily non-qualifying tasks." This statement indicates that 
the Petitioner seeks to disregard changes it may have experienced, staffing or otherwise, since this 
petition was filed. Thus, while the Petitioner must first establish eligibility at the time of filing, it must 
continue to be eligible throughout the petition's adjudication, including at the time of the site visit. 
Accordingly, any changes that were observed at the time of the USCIS site visit regarding the 
Petitioner's staffing, changed business premises, or scope of business operations are relevant, even if, 
arguendo, the Petitioner had established eligibility at the time of filing. Here, the USCIS officer who 
conducted the site visit observed that the Petitioner's staff, business activity, and business premises 
had all changed from what was claimed at the time of filing. The officer observed no import or export 
activity and noted that the operation appears to have consisted of a small used car lot that had been 
relocated to a smaller business premises with only one room set up as an office. The officer further 
observed that the Beneficiary himself was running the used car lot with the assistance of seven full­
and part-time employees who were not deemed to be managers or professionals. In light of the new 
information, the Director determined that neither the scope nor the staffing of the Petitioner's operation 
was sufficient to support the Beneficiary in an executive position that would primarily involve matters 
concerning the organization's goals and policies. 
Although the Petitioner explains that moving to a new location was precipitated by its inability to 
renew the original business lease, it does not address the significant reduction in space at the new 
location or establish that this change had no adverse impact on the scope of its operation or the 
Beneficiary's position and duties within the context of the diminished operation. The Petitioner also 
does not clarify whether or how the smaller size of the new business premises impacted its 
organization's staffing in terms of the number of staff needed and the capacity of the new space to 
accommodate that staff. 
Furthermore, the Petitioner has not adequately addressed the Director's finding that the provided job 
description is generic and lacks meaningful content. On appeal, the Petitioner merely states that the 
Beneficiary will perform "high level or [sic] responsibilities" and will not allocate his time primarily 
to operational functions; however, it does not elaborate on the ambiguous job duties that comprised a 
significant portion of the Beneficiary's job description. 
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The Petitioner was also overly vague in stating that the Beneficiary would exercise a high degree of 
discretionary authority by developing goals and objectives, ensuring legal compliance, creating "a 
culture of transparency and communication," addressing business challenges, and maintaining 
authority over the company's budget and finances. While the Beneficiary may exercise discretion 
over the Petitioner's day-to-day operations and possess the requisite level of authority with respect to 
discretionary decision-making, his actual duties cannot be readily identified and may not be primarily 
executive in nature. To make this detennination, we rely on specific inf mmation about a beneficiary's 
actual daily tasks as an important indication of whether their duties are primarily executive in nature; 
otherwise meeting the definitions would simply be a matter of reiterating the regulations. Fed in Bros. 
Co., Ltd. v. Sava, 724 F. Supp. 1103, 1108 (E.D.N.Y.1989), aff'd, 905 F.2d41 (2d.Cir. 1990). Where, 
as here, the job description lacks adequate detail, we cannot ascertain what actual tasks the Beneficiary 
performs or conclude that he will spend his time primarily perf orming executive job duties. See 
section 101 (a)( 44)(B) of the Act. 
Lastly, The Petitioner has not adequately explained how its organization is managed or provided a job 
duty breakdown establishing that the Beneficiary focuses on the organization's broad goals and 
policies, rather than the day-to-day functions involved in operating a used car lot and providing auto 
repair services. Further, although the Director determined that the Petitioner did not substantiate the 
inclusion of independent contractors as part of its organizational structure, the Petitioner did not 
address this issue on appeal. As such, it is unclear why the organizational chart depicts a "Legal 
Advisor" and "Account" in the tier directly below the Beneficiary or why the chart includes a fourth 
tier comprised of a vacant "customer service/sales rep." position and businesses that provided various 
auto repair and glass services. We note that artificial tiers of subordinate employees and inflated job 
titles are not probative and will not establish that an organization is sufficiently complex to support an 
executive position. If USCIS finds reason to doubt an assertion stated in the petition, USCIS may 
reject that assertion. See, e.g., Section 204(b) of the Act, 8 U.S.C. § l 154(b);Anetekhai v. INS, 876 
F.2d 1218, 1220 (5th Cir. 1989);Lu-Ann Bakery Shop. Inc. v. Nelson, 705 F. Supp. 7, 10 (D.D.C. 
1988); Systronics Corp. v. INS, 153 F. Supp. 2d 7, 15 (D.D.C. 2001). 
In light of the deficiencies in the Director's decision specifically related to the fraud or willful 
misrepresentation claims, we hereby withdraw that decision and remand the matter for further 
consideration of the evidence and a new determination of the Petitioner's eligibility. If the Director 
determines that a finding of either fraud or willful misrepresentation is warranted, the Director shall 
issue a NOIR that (1) clearly identifies the finding and the party or parties against whom that finding 
is made, and (2) includes a detailed analysis highlighting the factors that may support that finding 
The NOIR must also include all other grounds for the intended revocation so that the Petitioner has an 
opportunity to address any intended adverse findings. 
ORDER: The decision of the Director is withdrawn. The matter is remanded for further 
proceedings consistent with the foregoing opinion and for the entry of a new decision. 
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