U.S. Citizenship and Immigration Services

MATTER OF S-0- LLC

APPEAL OF VERMONT SERVICE CENTER DECISION

Non-Precedent Decision of the Administrative Appeals Office

DATE: AUG. 1, 2016

PETITION: FORM 1-129, PETITION FOR A NONIMMIGRANT WORKER

The Petitioner, an online seller of digital equipment, seeks to extend the Beneficiary's temporary employment as its director under the L-1 A nonimmigrant classification for intracompany transferees. See Immigration and Nationality Act (the Act) section 10i(a)(l5)(L), 8 U.S.C. § 1101(a)(15)(L). TheL-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 an executive or managerial capacity.

The Director, Vermont Service Center, denied the petition. The Director concluded that the Petitioner did not establish that the Beneficiary would be employed in a managerial or executive capacity in the United States under the extended petition.

The matter is now before us on appeal. In its appeal, the Petitioner asserts that it provided sufficient evidence to establish that the Beneficiary will be employed in an executive capacity. The Petitioner contends that the Director erred by requiring that it demonstrate that the Beneficiary will have managerial subordinates and states that the Director inappropriately relied on the company's small size in denying the petition.

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. 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, executive, or specialized knowledge capacity. /d.

The regulation at 8 C.P.R. § 214.2(1)(3) states that an individual petition filed on Form I-129, Petition for a Nonimmigrant Worker, shall be accompanied by:

)

Matter of S-0- LLC

(i) Evidence that the petitioner and the organization which employed or will employ the alien are qualifying organizations as defined in paragraph (1)(1 )(ii)( G) ofthis section.

(ii) Evidence that the alien will be employed in an executive, managerial, or specialized knowledge capacity, including a detailed description of the services to be performed.

(iii) Evidence that the alien has at least one continuous year of full-time, employment abroad with a qualifying organization within the three years preceding the filing of the petition.

(iv) Evidence that the alien's prior year of employment abroad was in a position that was managerial, executive or involved specialized knowledge and that the alien's prior education, training, and employment qualifies him/her to perform the intended services in the United States; however, the work ·in the United States need not be the same work which the alien performed abroad.

The regulation at 8 C.P.R. § 214.2(1)(14)(ii) also provides that a visa petition, which involved the opening of a new office, may be extended by filing a new Form I-129, accompanied by the following:

(A) Evidence that the United States and foreign entities are still qualifying organizations as defined in paragraph (l)(l)(ii)(G) ofthis section;

(B) Evidence that the United States entity has been doing business as defined in paragraph (1)(1 )(ii)(H) of this section for the previous year;

(C) A statement of the duties performed by the beneficiary for the previous year and the duties the beneficiary will perform under the extended petition;

(D) A statement describing the staffing of the hew operation, including the number of employees and types of positions held accompanied by evidence of wages paid to employees when the beneficiary will be employed in a management or executive capacity; and

(E) Evidence ofthe financial status ofthe United States operation.

II. EMPLOYMENT IN A MANAGERIAL OR EXECUTIVE CAP A CITY

The Director denied the petitio~ based on a finding that the Petitioner did not establish that. Beneficiary would be employed in a managerial or executive capacity under the extended petition. The Petitioner does not claim that the Beneficiary will be employed in a managerial capacity.

2

(b)(6)

Matter of S-0- LLC

Therefore, we restrict our analysis to whether the Beneficiary will be employed in an executive capacity.

Section 101(a)(44)(B) of the Act, 8 U.S.C. § 1101(a)(44)(B), defines the term "executive capacity" as "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, 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.

Finally, 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 101 (a)( 44 )(C) of the Act.

A. Evidence of Record

The Petitioner filed the Form I-129 on October 1, 2015. On the Form I-129, the Petitioner indicated that it has tw6 employees in the United States and a gross annual income of $1,260,000. The Beneficiary was previously granted L-1A status for a one-year period commencing on November 11, 2014.

In support of the petition, the Petitioner submitted a letter dated September 14, 2015 from general director and CEO of the Petitioner's Russian parent company.

stated that the Beneficiary was "the main force behind opening the US subsidiary," noting that he "came up with a rather unique approach of working with and pncmg automation and rummage management automation warehouses." He further explained that the products sold by the Petitioner are "ordered from us [and] delivered to the client directly by

· including "pricing automation on and · done via a website created and maintained by the Petitioner. stated that the services the Petitioner receives from companies like and replaces "work normally d~.me by office administrators or purchasing clerks and warehouse employees" due to "full automation of the orders processing, invoices issues and packing lists" [and] "inventory control." He further explained that the online services also partially automated "ordering from suppliers procedure" for the Petitioner and noted that the Petitioner pays $150 per month to an online product portal in lieu of "employing a full-time purchasing manager."

3

(b)(6)

Matter of S-0- LLC

explained that the Petitioner postponed a plan to open a retail location due to the ,success of online sales, noting that it did not expect to open a retail location "within the next two years" and that the Beneficiary would be responsible for making this decision. He stated that the Petitioner earned revenues of$631,767 in 2014 and $1,341,047.94 and noted that the "[Beneficiary] decided to gradually reduce the wholesale trade outside the US, and started concentrating the sales efforts· on the US domestic market" using its website and the and marketplace.

Finally, letter provided the following job description for the Beneficiary: 1

• 30% of the time [the Beneficiary] develops the general strategy aimed at achieving sales goals in terms of planning setting general sales objectives and developing strategies to implement them. He has authority to shift overall strategy of the US subsidiary development based on that- for example, instead of opening an off-line store, which was the plan all along, to proceed with the online store strategy. In 20 15 he decided to discontinue certain international projects and concentrate on the US market, which proved to be a good dpcision.

• 30% of the time [the Beneficiary] exercises executive functions of the director of the US subsidiary. [The Beneficiary] has full authority to enter into agreements with contractors and subcontractors in order to assure that the company functions properly. He also would be the one to approve and/or sign with most important clients. He has opened the subsidiary, leased the premises, and has full authority to hire and lay off staff. As this point he retained several staff members, and laid off one, and is actively supervising relationship with no small amount of contractors[ ... ]

• 25% of the time [the Beneficiary] oversees the financial reports and information of the US subsidiary and oversees the reports from current pricing automation and automated warehouses, and, based on these, he decides, which brands of digital devices provided sufficiently profitable to continue advertising and which automated warehouses to work with. He is in charge or making decisions to help the company advance and promote company revenue, overall growth and profit. [The Beneficiary] works devising and strategy that woul.d generate revenues, create new opportunities for business and help the company to remain competitive in the marketplace including making decisions regarding inception of advertising campaigns, visiting auctions and shows and other related promotional' activities.

• 5% of the time [the Beneficiary] oversees company's public profiles and image, creating performance objectives to proactively represent the company,

1 We note that the duties do not add up to 100 percent.

4

(b)(6)

Matter of S-0-. LLC

participating in special events for to generate new business with clients and having a strong presence in the market.

The Petitioner submitted an organizational chart reflecting that the Beneficiary will report to the general director of the foreign entity and oversee one employee, Field Tester and Social Media Expert. The chart further indicated that the Beneficiary will supervise several independent contractors, including one focused on web development, one tasked with graphic design, and under an "advertisement" function, a financial adviser and a CPA firm,

devoted to "warehouse's control and order," two lawyers, ' tasked with "price's competition control," special services and service central, and a janitor employed by the Petitioner's lessor.

The Petitioner provided copies of several emails from late 2014 reflecting the Beneficiary's involvement in operational matters, including order processing and client recruitment. · The Petitioner submitted an unsigned "Distributor Agreement" with dated October 29, 2014, pursuant to which the Petitioner agreed to buy certain products from for resale

· through the Petitioner's website. The Petitioner provided two invoices in the amount of $199 from · from late 2015 billed directly to the Beneficiary. Further, the Petitioner submitted three

similar invoices from in the amount of $150 from June through September 2015 and also billed to the Beneficiary. The Petitioner provided a form letter from indicating that the Beneficiary had achieved "Top Rated Seller" status in May 2015. The Petitioner submitted several

account summaries from December 2014 through August 15, 2015 reflecting sales on and billing to the Beneficiary representing the ' Likewise, the Petitioner provided account summaries from reflecting substantial sales by the company in "seller central."

The Petitioner submitted a profit and loss statement for the period January through August 2015 indicating that the company had earned over $1.3 million in total income and that it had paid $48,850 in wages during that period. The statement further reflected that the Petitioner had spent $2,382.50 on. "accounting," $7,466.54 on "advertising and promotion," $320 on "contractor expenses," and $903.90 on "contractor fees." In addition, the statement revealed that the Petitioner paid $93,091.04 to $22,972.04 to and $9,393.52 to PayPal in "merchant fees." The Petitioner submitted an IRS Form 941 Employer's Quarterly Federal Tax Return for the second quarter of 2015 indicating that it had one employee and that it had paid $16,1 00 in wages during that quarter.

Furthermore, the Petitioner provided a letter titled "business report for January 2015-August 2015" sent by the Beneficiary to the foreign employer on September 4, 2015. The Beneficiary stated that in January 2015 he "decided to gradually reduce the wholesale trade with foreign companies and start sales on the US domestic market" and launched a store on "under the account." The Beneficiary stated that sales through the account had increased greatly from January ($11,513.15) to August 2015 ($75,825.330) "due to the measures I took to optimize sales and service." The Beneficiary also explained that in February 2015 "a new store was launched under account ' including "pricing automation and rummage

5

(b)(6)

Matter of S-0- LLC

management" which was implemented by him. The Beneficiary noted that this sales approach was "implemented due to the fact that we ship and store most of the products directly at warehouses." Further, the Beneficiary stated that automated pricing via and "save[s] about 3 hours of sales clerk· work time per day." Likewise, the Beneficiary indicated that the Petitioner had automated its warehouse and inventory, and partially automated ordering from suppliers using ' ' The Beneficiary reported that the company was "relieved from the need of keeping two additional staff members (a warehouse worker and an office employee to work with order and prices)" due to its online automation. The Beneficiary stated to the foreign employer that "it [will be] beneficial to postpone opening a brick-and-mortar store (off-line store) until January 2016."

The Petitioner further provided a letter dated June 10, 2015, from the Beneficiary to' that he has been hired as "Content Manager" beginning June 22, 2015.

'stating

The Director later issued a request for evidence (RFE) asking the Petitioner to submit a letter describing the Beneficiary's expected executive decisions, including an explanation of how he would direct the management and establish the goals and policies of the organization. The Director requested that the Petitioner provide an organizational chart including the names, titles, duties, education levels, and salaries for each of its employees. The Director further asked that the Petitioner submit its state quarterly wage report specific to the third quarter of 2015 and the company's payroll and paystubs from April 1, 2015, to the present.

In response, the Petitioner submitted a Massachusetts wage tax report for 2015 dated November 4, 2015. The report reflected that the company had made the following wage payments in 2015 to the Beneficiary and the only employees the Petitioner asserts were employed by the company as of the date of the petition:

• $8,280 to the Beneficiary on April8, 2015; • $630to on July 16,2015; • $13,000 to the Beneficiary on July 16, 2016; • $7,740 to on October 14, 2015; and • $17,100 to the Beneficiary on October 14,2015.

In addition, the Petitioner submitted payroll and paystub information indicating it had paid $630 for the week of June 20,2015, through June 26,2015, $630 for the week of August 29,

2015, through September 4, 20\5, and $360 weekly from September 5, 2015, through November 6, 2015. Other submitted paystubs indicated that the Beneficiary was paid as follows: $3600 for April on April 22,2015, $1500 for May on May 7, 2015, $2,300 for May on May .22, 2015, $1600 for June on June 10, 2015, $2500 for June on June 18, 2015, $1,250 for the week of August through September 4, 2015 and $1400 weekly from August 29 through December 5, 2015. The Petitioner also provided a payroll listing covering the period of September 1, 2015 through December 11, 2015 matching the above referenced paystubs.

6

(b)(6)

Matter of S-0- LLC

In an additional support letter, the Petitioner stated that the Beneficiary "defines the general policy of the company," "negotiates with suppliers," "approves company expenditures," "makes decisions about volume procurement," and "reviews and the results of market analysis." The Petitioner indicated that it had hired an operating manager who "places orders to the suppliers," "processes and store orders," and "oversees receiving goods to the warehouse." The Petitioner explained that has a bachelor's-level education. The Petitioner stated that

acts as content manager, noting that he "creates and produces marketing deliverables," "analyzes competitor communications," "manages [the] company's and

accounts," and writes articles and reviews. The Petitioner stated that holds a bachelor's level degree in journalism and political science. The Petitioner further asserted that it engaged two employees p~id by the foreign entity, a web-marketing specialist, and a designer.

The Petitioner submitted an organizational chart largely the same as that previously provided, except, this chart included in the position of operating manager subordinate to the Beneficiary. The Petitioner provided an IRS Form I-9, Employment Eligibility Verification, for

signed on November 6, 2015. The Petitioner submitted an IRS Form 941 for the third quarter of 2015 reflecting that it had paid two employees $24,840 in wages during this quarter.

The Petitioner further submitted a support letter from the foreign entity dated December 14, 2015. The foreign entity stated that it "also has two employees working for [the Beneficiary's] projects at the home office in Russia (one designer and one web specialist, paid by the parent company)." The foreign entity provided duties for the Beneficiary largely consistent with those submitted in support of the petition, but elaborated that his main responsibility during the next two years would be to decide whether or not to open a retail store. In addition, the foreign entity stated that although his functions will differ, he will be involved in "high-level client negotiations, reading market reports in order to make strategic decisions about changing business partners in reaction to clients' perception of the products; order marketing campaigns and/or promotional sales."

In denying the petition, the Director stated that the evidence indicates that the Beneficiary and his subordinates would all be directly involved in the day-to-day operational tasks of the business. The Director pointed to the fact that the Petitioner did not submit tl}e percentages of time the Beneficiary devotes to his tasks. The Director concluded that the Petitioner did not substantiate with documentary evidence its engagement of independent contractors to support the business. On the whole, the Director found that the evidence did not demonstrate that the Beneficiary would primarily perform qualifying executive duties.

In its appeal, the Petitioner asserts that it has submitted sufficient evidence to establish that the Beneficiary will be employed in an executive capacity, including creating the company, initiating its operations, hiring and firing its employees, and reporting to the foreign entity. The Petitioner cites Brazil Quality Stones v. Chertoff, 5 31 F .3d 1 063, 1070 n.l 0 (9th Cir. 2008) stating that this supports a conclusion that the Director erred by requiring that the Petitioner establish managerial subordinates below the Beneficiary for him to qualify as an executive. The Petitioner states that the Beneficiary's "executive leadership" has allowed the company to operate independently of the foreign entity and gamer significant revenue, fac;ts it states were acknowledged by the Director. The Petitioner asserts

7

Matter of S-0- LLC

that the Beneficiary's "substantial salary" supports a conclusion that he acts in an executive capacity? Finally, the Petitioner states that the Beneficiary is relieved from non-qualifying tasks by independent contractors and that it has submitted supporting documentation to substantiate the engagement of these contractors.

Further, the Petitioner contends that the Director overemphasized the small size of the company referencing the decision in Family Inc. v. USCIS, 469 F.3d 1313, 1316 (9th Cir. 2006). The Petitioner states that the Director did not cite specific evidence to support its conclusion that the company was not properly staffed. The Petitioner asserts that the Director incorrectly concluded that a Beneficiary must be completely relieved from performing non-qualifying tasks in order to qualify as an executive. The Petitioner disputes the Director's contention that it did not provide percentages of time the Beneficiary devoted to his tasks, stating that it did submit this evidence along with detailed examples and supporting evidence of the Beneficiary's duties, including a report he submitted to the foreign entity detailing his actions during the first year. Finally, the Petitioner contends that the Director held it accountable for evidence that it was not requested to submit.

B. Analysis

Upon review of the petition and the evidence of record, including materials submitted in support of the appeal, we conclude that the Petitioner has not established that the Beneficiary would be employed in an executive capacity under the extended petition.

When examining the managerial or executive capacity of the Beneficiary, we will look first to the Petitioner's description of the job duties. See 8 C.P.R.§ 214.2(1)(3)(ii). 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. Id.

The definitions of managerial and executive capacity each have 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 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.

In the current matter, the Petitioner has not provided sufficient detail regarding the Beneficiary's duties as necessary to demonstrate that he would primarily spend his time on managerial or executive duties. For instance, the Petitioner states that the Beneficiary will perform some qualifying tasks such as entering into agreements with contractors and subcontractors, approving and/or signing agreements with important clients, engaging in "high-level client negotiations," making decisions regarding the inception of advertising campaigns and establishing goals and policies. However, the Petitioner does not provide detail or supporting evidence to substantiate that

2 The Petitioner cites CareMax Inc v. Eric Holder, 40 F.Supp.3d 1182 (N.D. CA 2014) to support this claim.

8

(b)(6)

Matter of S-0- LLC

these tasks would be the Beneficiary's primary duties as of the date of filing. For instance, the Petitioner does not identify agreements it has entered into with contractors, important agreements the Beneficiary approved and/or negotiated, advertising campaigns the Beneficiary devised and launched, or goals and policies he established. Although the Petitio~er has demonstrated that the company engages third party online sellers for the majority of its sales, such as and it does not substantiate that it took a substantial amount of time for the Beneficiary to negotiate or sign contracts with these entities or that he would be required to negotiate similar contracts in the future. 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. Conclusory assertions regarding the beneficiary's employment capacity are not sufficient. The actual duties themselves will reveal the true nature of the employment. Fedin Bros. Co., Ltd. v. Sava,724 F. Supp. 1103, 1108 (E.D.N.Y. 1989), aff'd, 905 F.2d 41 (2d. Cir. 1990).

On appeal, the Petitioner contends that the Director erred by requiring that it submit supporting documentation to corroborate the Beneficiary's qualifying tasks, such as contracts with asserted contractors or other evidence of payments. The Petitioner states that the Director improperly held it accountable for evidence she did not specifically request in the RFE. However, we note that it is the Petitioner's burden to substantiate that the Beneficiary would spend his time primarily on managerial or executive level tasks. The Petitioner merely states that the Beneficiary spends a great deal of time negotiating with contractors and subcontractors, devising advertising campaigns, and establishing goals and policies, but does not support its statements, as required, with corroborating evidence. To the extent the Petitioner elaborates on the Beneficiary's qualifying tasks, such as deciding whether a retail store will be opened or shifting focus to online sales in the United States, these duties represent one-time decisions and are not reflective of ongoing qualifying tasks that would require a significant amount ofthe Beneficiary's time. Going on record without supporting documentary evidence is not sufficient for purposes of meeting the burden of proof in these proceedings. Matter of Soffici, 22 I&N Dec. 158, 165 (Comm 'r 1998) (quoting .Matter of Treasure Craft o.f Cal., 14 I&N Dec. 190 (Reg'l Comm'r 1972)).

In contrast, the Beneficiary's duties include several specific operational tasks and the Petitioner provides evidence indicating that he likely devotes a significant amount of his time to these non­qualifying duties. For instance, the Petitioner states that the Beneficiary is engaged in reviewing marketing reports, overseeing pricing automation and the company's third party online selling agents, and selecting products for sale. The Petitioner submits emails from late 2014 reflecting the Beneficiary's involvement in operational matters, such as order processing and client recruitment. The Petitioner states that the Beneficiary was directly responsible for launching and implementing the company's online stores. The Petitioner submitted a form letter the Beneficiary received from

indicating that he had achieved "Top Rated Seller" status. The Petitioner provided invoices from from late 2015 and three similar invoices from dated in June through September 2015 all billed directly to the Beneficiary. The Petitioner provided several account summaries from December 2014 through Aug~~t 15, 2015 reflecting sales on and billing to the Beneficiary representing the In sum, this evidence indicates that the Beneficiary is primarily responsible for directly operating the company's online stores and engaging

9

(b)(6)

Matter of S-0- LLC

in the majority of its day-to-day operations. By comparison, the Petitioner has not submitted similar evidence indicating that he spends a majority of his time on qualifying executive-level tasks or documentation reflecting the performance of the aforementioned non-qualifying tasks by his subordinates.

Beyond the required description of the job duties, USCIS reviews the totality of the record when examining 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.

In the current matter, the Petitioner asserts that the Beneficiary acts in an 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 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. 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 organization." !d.

The Petitioner asserts that it employs two individuals, field tester and social media expert, and operating manager. First, it is noteworthy to mention that was not hired until one month after the filing of the petition, and therefore is not relevant to our assessment of the Beneficiary's eligibility. The Petitioner must establish eligibility at the time of filing the nonimmigrant visa petition and must continue to be eligible for the benefit through adjudication. 8 C.P.R. § 103.2(b)(l). A visa petition may not be approved at a future date after the Petitioner or Beneficiary becomes eligible under a new set of facts. See Matter of Michelin Tire Corp., 17 I&N Dec. 248, 249 (Reg'l Comm'r 1978).

Regardless, the Petitioner submits documentation that leaves a question as to the asserted employment ofthe Beneficiary and its two lone employees. For instance, the Petitioner provides 2015 Massachusetts state wage tax documentation through November 4, 2015, reflecting that it paid $8,370 during the third quarter, whereas the Petitioner's internal payroll documentation indicates that was paid $3,870 from his date of hire through November 4. Overall, the Petitioner's state wage tax documentation for 2015 indicates that it paid only $16,100 in wages during the third quarter of2015, but its IRS Form 941 reflects that it paid $24,840 during this time. Likewise, the state wage tax documentation shows that the Beneficiary earned $38,280 from

10

(b)(6)

Matter of S-0- LLC

the beginning of 2015 until November 4, while payroll documentation indicates he earned $32,350 during this time. Therefore, the Petitioner has submitted conflicting evidence with respect to the payment of its asserted employees. The Petitioner has not resolved these inconsistencies with independent, objective evidence pointing to where the truth lies. Matter of Ho, 19 I&N Dec. 582, 591-92 (BIA 1988).

In addition, the Petitioner contends that the Beneficiary will oversee several independent contractors that relieve him from performing non-qualifying tasks, including a web development and graphic design employee employed by the foreign entity, and a financial advisor and a certified public accountant, two law offices, and and a janitor working for its lessor. However, the Petitioner submits little evidence to substantiate that these asserted independent contractors are substantially engaged in relieving the Beneficiary from the performance of non-qualifying tasks. The Petitioner asserts on appeal that it has submitted substantial supporting evidence to corroborate its engagement of independent contractors, but we do not agree. The Petitioner has only submitted evidence to indicate that it pays nominal fees to use certain websites for sales and merchant fees to online sellers such as and However, the engagement of these online services does not demonstrate that the Beneficiary has been relieved from non-qualifying tasks inherent to managing these sales or sites.

The Petitioner provides no evidence of its employees or independent contractors performing the day­to-day tasks of the business, including the asserted web development and graphic design employee directly employed by the foreign entity or the asserted CPA and financial advisor. The Petitioner's use of some shipping vendors, such as and is not sufficient to establish that the Beneficiary is primarily relieved from operational tasks, nor is the occasional engagement of attorneys or a janitor employed by its lessor. The Petitioner has not documented the time these contractors have spent working for the company nor substantiated their engagement with supporting evidence. Indeed, the Petitioner's profit and loss statement for January through August 2015 does not reflect that the Petitioner paid significant amounts to independent contractors. It indicates that the Petitioner paid only $2382.50 in accounting fees, $320 in contractor expenses, and $903.90 in professional fees. Although the Petitioner's finances reflect that it paid significant "merchant fees" to and it has not explained or submitted evidence to reflect how these payments establish that the Beneficiary is relieved from performing non-qualifying tasks. Again, going on record without supporting documentary evidence is not sufficient for purposes of meeting the burden of proof in these, proceedings. Afatter of Soffici, 22 I&N Dec. at 165 (quoting 111atter of Treasure Craft ofCal., 14 I&N Dec. 190 (Reg'l Comm'r 1972)).

The Petitioner cites Brazil Quality Stones v. Chertoff, 531 F.3d 1063, 1070 n.10 (9th Cir. 2008) stating that this supports a conclusion that the Director erred in requiring that the Petitioner establish managerial employees subordinate to the Beneficiary in order for him to qualify as an executive under the regulations. First, we agree that there is no distinct regulatory requirement that an executive have managerial or professional subordinates to qualify.

1 1

Matter of S-0- LLC

However, the Petitioner must establish that someone other than the Beneficiary will perform the day­to-day non-qualifying duties necessary to operate the business. The Petitioner claims that he will be overseeing two employees and several independent contractors, including two employees from the foreign employer, but none of these employees are shown to have subordinates of their own. As such, although the Petitioner is not required to demonstrate that the Beneficiary has managerial or professional subordinates in order to qualify as an executive, the lack of these higher level subordinates, when viewed in the context of the rest of the evidence, leaves question as to whether he will be acting as an executive, primarily directing the Petitioner's management and setting its goals and policies.

Further, the Petitioner contends that the Director overemphasized the small size of the company referencing the decision in Family Inc. v. USCIS, 469 F.3d 1313, 1316 (9th Cir. 2006). First, the Petitioner correctly observes that a company's size alone may not be the determining factor in denying a visa petition for classification as a multinational manager or executive without taking into account the reasonable needs of the organization. See section 1 0 1 (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 non­executive operations of the company or a "shell company" that does not conduct business in a regular and continuous manner. Family Inc., 469 F.3d at 1313; Systronics Corp. v. INS, 153 F. Supp. 2d 7, 15 (D .D.C. 2001 ). The size of a company may be especially relevant when US CIS notes discrepancies in the record. See Systronics, 153 F. Supp. 2d at 15.

As discussed at length in this decision, the Petitioner has not provided sufficient detail nor documented the qualifying duties to which the Beneficiary would be primarily devoted. In fact, to the extent the Petitioner provides specifics and supporting documentation this evidence strongly indicates that the Beneficiary would be primarily engaged in directly operating the company's online sales through third party website sales services. The Petitioner has provided conflicting wage and tax documentation, leaving question as to whether it employs sufficient employees to relieve the Beneficiary from these tasks. Further, the Petitioner has provided little documentation reflecting the performance of services by independent contractors, most importantly, their engagement in day-to­day tasks relevant to the operation of the company's online stores to relieve the Beneficiary from these necessary tasks. The size of the company is only one relevant factor amongst the totality of the evidence.

Lastly, the Petitioner states that the Beneficiary's "executive leadership" has allowed the company to operate independently of the foreign entity and gamer significant revenue, both of which were acknowledged by the Director. The Petitioner asserts that the Beneficiary's "substantial salary" supports a conclusion that he acts in an executive capacity. We acknowledge that the evidence indicates that the Beneficiary has been successful at launching online sales in the United States and that he likely received an adequate salary for this. However, neither the Petitioner's revenue nor the Beneficiary's job title and salary are sufficient to establish that he would be employed in a qualifying capacity. Again, as we have discussed, the Petitioner has not provided sufficient supporting

12

Matter ofS-0- LLC

evidence to demonstrate that the Beneficiary would primarily perform executive duties as of the date of filing.

Further, we do not find the Petitioner's reference to CareMax Inc. v. Eric Holder, 40 F. Supp. 3d 1182 (N.D. CA 2014) persuasive in this matter. First, we note that the aforementioned case involved an Hl-B specialty occupation visa, not an L-1A intracompany transferee. Further, upon review, we did not find that the case involved salary as a major consideration in determining the petitioner's eligibility. Although we will take into account a beneficiary's salary along with the rest of the totality of the circumstances, we do not find that the payment of a salary alone, or its amount, conclusive as to that beneficiary's qualification as an executive. In fact, as discussed, the Petitioner has provided conflicting evidence as to the amounts paid to the Beneficiary.

Based on the deficiencies and inconsistencies discussed above, the Petitioner has not established that the Beneficiary will be employed in a managerial or executive capacity under the extended petition.

III. CONCLUSION

The petition will be denied and the appeal dismissed for the above stated reason. In visa petition proceedings, the burden of proving eligibility for the benefit sought remains with the petitioner. Section 291 of the Act, 8 U.S.C. § 1361; Matter of Otiende, 26 I&N 127, 128 (BIA 2013). Here, that burden has not been met.

ORDER: The appeal will be dismissed.

Cite as Matter ofS-0- LLC, ID# 17938 (AAO Aug. 1, 2016)

13