dismissed L-1A Case: Amusement Park Rides

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the 
Administrative Appeals Office 
'--
MATTER OF T-A-S- LLC DATE: FEB. 13, 2019 
APPEAL OF CALIFORNIA SERVICE CENTER DECISION 
PETITION: FORM 1-129, PETITION FOR A NONIMMIGRANT WpRKER 
The Petitioner, which claims to build and repair amusement park rides, seeks to continue the 
Beneficiary's temporary employment as its chief executive officer under the L-1 A non immigrant 
classification for intracompariy transferees. Immigration and Nationality Act (the Act) 
section 10l(a)(l5)(L), 8 U.S.C. § 1101(a)(l5)(L). The L-lA classification allows a corporation or other 
legal entity (including its affiliate or subsidiary) to tran~fer a qualifying foreign employee to the Un~ted 
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: (1) the Petitioner has a qualifying relationship with the Beneficiary's 
foreign employer; and (2)' the Petitioner would employ the Beneficiary in _the United States in a 
managerial or executive capacity.' · 
The matter is now before us on appeaL ,In its appeal, the Petitioner asserts that the Director erred by 
not giving deference to the prior approval of the first petition filed on the Beneficiary's behalf. 
Upon de novo review, we will dismiss the appeal. 
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 manage_rial, 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) 9f the Act. In addition, the beneficiary 
must seekto 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 Director also found that the Beneficiary was ineligible for an extension of stay because the Beneficiary was not 
physically present in the United States at the time of filing. Much of the appellate brief revolves around this issue and its 
ramifications. This issue is outside the scope of this proceeding, however, because there is no appeal from the denial o'r an 
application for extension of stay. 8 C.F.R. § 214.l(c)(5). · 
Matter ofT-A-S- LLC 
II. DEFERENCE TO PRIOR APPROVAL 
With respect to the approval of an earlier petition on the Beneficiary's behalf, that petition is not 
before us for review. An adjudicator's fact-finding authority should not be constrained by any prior 
petition approval, but instead, should be based on the merits of each case. USCIS Policy 
Memorandum PM-602-0151, Rescission of Guidance Regarding Deference to Prior Determinations 
of Eligibility in the Adjudication of Petitions for Extension of Nonimmigrant Status 3 (October 23, 
2017), http://vvw,v.uscis.gov/legal-resources/policy-mernoranda. In this instance, the Director 
plainly articulated two separate grounds for denial of the petition. The Director did not err by 
omitting a· discussion of the earlier petition and an explanation for why the two petitions had 
different outcomes. 
Similarly; the Petitioner objects that, because the Beneficiary's absence from the United States 
precluded extension of stay, the Director subjected the Petitioner to the more rigorous evidentiary 
requirements of a petition for new employment. In every case, including extension petitions, the 
Director has the discretion to issue a request for evidence (RFE) if the Petitioner has not established 
eligibility. See 8 C.F.R. §§ 103.2(b)(8) and 214.2(1)(14)(i). 
III. STATED GROUNDS FOR DENIAL 
The Director cited two substantive grounds for denial of the petition. First, the Director found that 
the Petitioner had not established a qualifying relationship between the petitioning U.S. employer 
and the entity that had previously employed the Beneficiary abroad.· Second, the Director found that 
the Petitioner had not established that it would employ the Beneficiary in a managerial or executive 
capacity. 
~ 
On appeal, the Petitioner offers no substantive discussion as_ to why it disagrees with the Director's 
findings, and identifies no spe<;ific error. Instead, the Petitioner states: · 
Petitioner d.isagrees with the Director's findings on 'qualifying relationship' and 
'manager or executive capacity:' However, these are fact issues best directed to the 
Director. Rather than protracting this appeal, Petitioner submits that the appropriate 
remedy is to remand this case so that Petitioner may submit its evidence in the first 
instance to the Director. 
The Petitioner has already had an opportunity to submit additional qualifying evidence to the 
Director. The Director identified specific deficiencies in the record in an RFE issued on April· 2, 
2018. The Director stated that the Petitioner had not submitted documentary evidence to establish 
the ownership and control of either the foreign entity or the petitioning U.S. employer. The Director 
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also stated that the Petitioner had not provided enough details and evidence to establish that it would 
employ the Beneficiary would be employed as a manager or executive. The Director" listed specific 
documents that the Petitioner could submit in order to overcome these deficiencies. The Director 
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Matter of T-A-S- LLC 
reviewed the Petitioner ' s response to the .RFE, _and found the submitted evidence to be insufficient. 
We agree with that finding. 
A. Qualifying Relationship 
To establish a qualifying relationship under the Act arid the regulations , a petitioner must show that 
the beneficiary ' s foreign employer -and the proposed U.S. employ er are the same employer (i.1e. one 
entity with "branch" offices) , or related as a "parent and subsidiary " or as "affiliates." See generally 
section 101(a)(15)(L) of the Act; 8 C.F.R. § 214 .2(1) . 
. ' 
The Petitioner initially filed articles of organization with the State of North Carolina on 
2015, naming the Beneficiary as the sole member (owner) of the petitioning limited liability 
· company. Three months later , the Petitioner amended its articles of organization. When asked for 
"[t]he name and address of each perso!1 executin g these articles of organization," the Petitioner 
responded The Director found that the Petitioner had not 
established .how the .claimed transfer of ownership took place. 
We note that the definitive evidence of mem.bership in the limited liability company would come in 
the form of an operating agreement, which the Petitioner has not submitt ed. The Director did not 
specifically request the Petitioner's operating agreement. If this had been the only deficiency in the 
record, then it might have prompted a remand of the case in order to address it; but it is not the only 
deficiency. · 
The Petitioner ' s response to the RFE included not onl y the 2015 amendment to the articles of 
organization , but also copies of the Petitioner ' s annual reports for 2017 and 2018, _ required by the 
State of North Carolina. · On each of those printouts , the section reserved for filing receipt 
information is blank. As will be discussed below, the State of North Carolina administratively 
dissolved the petitioning entity for failure to file annual reports as required. The Petitioner's 
submission of annual reports that it had not actu ally filed raises question s regarding the Petitioner ' s 
credibility and good faith. 
Also , on its 2016 income tax return, the Petitioner answered "no " when asked whether any foreign 
person owned ·at least 25% of the entit y' s voting interest. The Petitioner did not explain how this 
information is consistent with other eviden ce in the record, indicating that was 
established in South Africa, with a South African national as its sole owner. Therefore, the record is 
ambiguous at best regarding the question of _____ claimed ownership and control of the 
petitioning entity. 
B. Managerial or Executive Capacity 
Section 101(a)(44)(A) of the Act defines ''managerial capacit y"; section 101(a)(44)(B) of the Act 
defines " executive capacity ." Based on these statutory definitions, the Petitioner must first show that 
the Beneficiary will perform certain high-level responsibilities. Champion World, Inc. v. INS, 940 
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Matter of T-A-S..: LLC 
· 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 1nc. v. USCJS, 469 
F.3d 1313, 1316(9th Cir. 2006); Champion World, 940 F.2d 1533. 
The Director found that the Petitioner had not provided enough details about the · Beneficiary ' s 
intended duties in the_ United States. The Director also noted that quarterly tax returns in the record 
indicate that, since Jul)' 2017, the company had no employees to perform the functions that the 
Beneficiary purports to oversee. We agree with these findings. Several elements of the job 
description submitted in respons~ to the RFE are general statements regarding the Beneficiary ' s 
authority, and others presume the existence of a subordinate staff that the Petitioner no longer has. 
Based on the deficiencies and inconsistencies discussed · above, the Petitioner has not established that 
it has a qualifying relationship with the foreign entity or that it will employ the Beneficiary in a 
managerial or executive capacity. The absence of any substantive response · to these findings is 
grounds for dismissal of the appeal . 
IV. DOING BUSINESS 
Beyond the Director's decision, it is not apparent that the Petitioner continues doing business , 
defined as the regular , systematic, and continuous provision of goods, services, or both. 8 C.F.R. 
§ 214.2(1)(1 )(ii)(H) . The mere presence of an agent or office does not constitute doing business. Id. 
If the Petitioner ; has ceased doing business , then it no longer constitutes part of a qualifying 
organization . See 8 C.F.R. § 214.2(1)(1)(0)( 2). The Petitioner must meet all · applicable 
requirements at the time of filing, and must continue to be eligible through adjudication. 8 C.F.R. 
§ 103.2(b)(l). 
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Routine checks of public records revealed that the State of North Carolina administratively dissolved 
the petitioning entity on . 2018. 2 Therefore, the Administrative Appeals Unit contacted 
the Petitioner on December 20, 2018, and requested "substantive and credible documentary evidence 
to establish that the company is in good standing with the State of North Carolina, and to show that 
the company has continued to do business, pay salaries , taxes, and bills, and otherwise conduct the 
usual activities of a lawfully active business. " 
In response, the Petitioner claims to have applied for reinstate'ment. It does not submit a copy of that 
application, but it submits bank documents to show that it submitted two $200 checks to the North 
Carolina Secretary of State in March 2018~ The Petitioner states that it made these payments in an 
effort to overcome the grounds for dissolution, and is waiting for state authorities to reinstate the 
company ' s good standing. We cannot determine, from the available evidence , · whether the 
reinstatement application is still pending. As of February 13, 2019, the administrative dissolution 
remains in effect. 
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2 A _searchable database is available at https ://www .sosnc.gov /search /index /corp . 
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Matter ofT-A-S- LLC 
The Petitioner states: 
\ 
The request for evidence also asks for proof that the Petitioner remain,s a going 
concern. The RFE -does not indicate that any particular documentation or quantum of 
proof is mandatory . Accordingly , as further proof that Petitioner is functioning and a 
de facto entity , Petitioner has attached copies of its last 3 bank St}:ltements reflecting 
· corporate expenses . 
We worded our December 2018 notice broadly because evidence of ongoing business activity could 
take a variety of forms. Nevertheless, we did request "substantive and credible documentary 
evidence ... to show that the company has continued to do business , pay salaries, taxes, and bills, 
and otherwise conduct the usual activities of a l awfully active business. " The submitted bank 
statements do not meet this threshold. They show some outgoing payments , but no income that the 
Petitioner has tied to business activit y. The y also . show no salary payments . They contain the 
following figures : 
Month 
· September 2ot'8 
October 2018 
November 2018 
Starting balance 
$1398.77 
437.77 
9981.02 
Debits 
$961.00 
456 .75 
8332.85 
Deposits 
$0.00 
10,000.00 
0.00 
Ending balance 
$437.77 
9981.02 
1648.17 
All withdrawals were in the form of debit 'card purchases except one check . for $790 l '. l 0, to an 
unidentified payee , processed in November. The debit card payments went to these recipients .: 
Recipient Number of payments 
1 
2 
3' 
12 
1 
2 
3 
l 
The Petitioner attempted to obscure the names of 
remain legible under strong lighting. 
Amount or range per transaction 
$95.09 
2.50-13..40 
8.53 
52.94 
424.99 
43.35 
170.97-172 .04 
39.42 
and with black ink, but they 
Some transactions might plausibly relate to business activity . for instance , provides various 
services to businesses, and the nature of the Petitioner's claimed business would require the purchase 
of tools. Nevertheless , the burden of proof is on the Petitioner to establish eligibility by a 
preponderance of the evidence, and none of the reported expenses are self-evidently exciusive to the 
operation of an active business. The Petitioner has not submitted invoices or other evidence to 
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Matter ofT-A-S- LLC 
explain how these expenses relate to the manufacture and repair of amusement park rides, which is 
the Petitioner's only stated business activity. The Petitioner has also not explained how it performs 
this activity with no employees. (If the Beneficiary performs the work himself, such work is neither 
managerial nor executive.) An entity is not "doing business" simply by incurring expenses.· We 
note that the bank statements do not reflect the $1200 monthly rent payments described in a March 
2018 lease agreement in the record. 
The Petitioner has not established that it continues to be engaged in the regular, systematic, and 
continuous provision of goods, services, or both. If the Petitioner is not doing business, then it is not 
part of a qualifying organization and it cannot support, and has no need for, . a managerial or 
executive position. 
V. CONCLUSION 
The Petitioner has not established a qualifying relationship with the Beneficiary's foreign employer, 
or that it would employ the Beneficiary in a managerial or executive capacity. The Petitioner also 
has not shown that is doing business. 
ORDER: The appeal is dismissed. 
Cite as Matter ofT-A-S- LLC, ID# 1833542 (AAO Feb. 13, 2019) 
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