dismissed L-1A Case: Business Management

U.S. Department of Homeland Security 
20 Massachusetts Ave., N.W., Rm. 3000 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
File: EAC 07 198 5 1662 Office: VERMONT SERVICE CENTER Date: ~CT 0 2008 
Petition: 
 Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(15)(L) of the Immigration 
and Nationality Act, 8 U.S.C. 8 1 101(a)(15)(L) 
IN BEHALF OF PETITIONER: SELF-REPRESENTED 
INSTRUCTIONS : 
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to 
the office that originally decided your case. Any further inquiry must be made to that office. 
%- 
Robert P. Wiemann, Chief 
Administrative Appeals Office 
- EAC0719851662 
Page 2 
DISCUSSION: The Director, Vermont Service Center, denied the petition for a nonimrnigrant visa. The 
matter is now before the Administrative Appeals Office (AAO) on appeal. The AAO will dismiss the appeal. 
The petitioner filed this nonimmigrant petition seeking to employ the beneficiary in the position of managing 
director to open a new office in the United States as an L-1A nonimrnigrant intracompany transferee pursuant 
to section 101 (a)(15)(L) of the Immigration and Nationality Act (the Act), 8 U.S.C. 5 1 101(a)(l5)(L). 
The director denied the petition based on the finding that the beneficiary was not employed abroad for the 
requisite one-year period within the three years prior to the date the Form 1-129 was filed. 
The petitioner subsequently filed an appeal. The director declined to treat the appeal as a motion and 
forwarded the appeal to the AAO for review. On appeal, the petitioner argues that the director improperly 
considered the three-year time period prior to the filing of the petition rather than the three-year time period 
prior to the beneficiary's application for lawful admission to the United States. 
To establish eligibility for the L-1 nonimmigrant visa classification, the petitioner must meet the criteria 
outlined in section 101(a)(15)(L) of the Act. Specifically, a qualifying organization must have employed the 
beneficiary in a qualifying 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. 
The regulation at 8 C.F.R. 5 214.2(1)(3) states that an individual petition filed on Form 1-129 shall be 
accompanied by: 
(i) 
 Evidence that the petitioner and the organization which employed or will employ the 
alien are qualifying organizations as defined in paragraph (l)(l)(ii)(G) of this 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 himher 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. 
- EAC0719851662 
Page 3 
In addition, the regulation at 8 C.F.R. 
 214.2(1)(3)(~) states that if the petition indicates that the beneficiary is 
coming to the United States as a manager or executive to open or to be employed in a new office, the 
petitioner shall submit evidence that: 
(A) 
 Sufficient physical premises to house the new office have been secured; 
(B) 
 The beneficiary has been employed for one continuous year in the three year period 
preceding the filing of the petition in an executive or managerial capacity and that the 
proposed employment involved executive or managerial authority over the new 
operation; and 
(C) 
 The intended United States operation, within one year of the approval of the petition, 
will support an executive or managerial position as defined in paragraphs (l)(l)(ii)(B) 
or (C) of this section, supported by information regarding: 
(I) 
 The proposed nature of the office describing the scope of the entity, its 
organizational structure, and its financial goals; 
(2) 
 The size of the United States investment and the financial ability of the 
foreign entity to remunerate the beneficiary and to commence doing business 
in the United States; and 
(3) 
 The organizational structure of the foreign entity. 
Section 101(a)(44)(A) of the Act, 8 U.S.C. 
 1101(a)(44)(A), defines the term "managerial capacity" as an 
assignment within an organization in which the employee primarily: 
(i) 
 manages the organization, or a department, subdivision, function, or component of 
the organization; 
(ii) 
 supervises and controls the work of other supervisory, professional, or managerial 
employees, or manages an essential function within the organization, or a department 
or subdivision of the organization; 
(iii) 
 if another employee or other employees are directly supervised, has the authority to 
hire and fire or recommend those as well as other personnel actions (such as 
promotion and leave authorization), or if no other employee is directly supervised, 
functions at a senior level within the organizational hierarchy or with respect to the 
function managed; and 
(iv) 
 exercises discretion over the day-to-day operations of the activity or function for 
which the employee has authority. A first-line supervisor is not considered to be 
acting in a managerial capacity merely by virtue of the supervisor's supervisory 
duties unless the employees supervised are professional. 
EAC 07 198 5 1662 
Page 4 
Section 101(a)(44)(B) of the Act, 8 U.S.C. $ 1 101(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. 
The primary issue in this matter is whether the beneficiary was employed abroad for the requisite one-year 
time period. The director concluded that the beneficiary did not have the requisite foreign employment. 
More specifically, this conclusion was based on the fact that the beneficiary was employed abroad from 
December 2, 2002 until October 29, 2004 and entered the United States as a J-2 dependent of an exchange 
visitor on December 21, 2004, subsequently changing his status to that of an H-4 dependent of an H-1B 
nonimmigrant on November 2,2006. In light of the beneficiary's December 21,2004 admission to the United 
States and his continued U.S. presence up through and including the date the petition was filed, the director 
determined that the beneficiary could not have been employed abroad for the requisite one-year period during 
the three years prior to the filing of the petition on June 28,2007. 
In order to determine whether the director's conclusion was correct, the AAO must determine whether the 
relevant three-year time period is: a) the three years prior to the date the petition is filed; orb) the three years 
prior to the beneficiary's application for lawful admission to the United States. 
In applying the three-year time period described in the first option discussed above, the director issued a 
request for additional evidence (RFE) dated December 12,2007 instructing the petitioner to provide evidence 
that would establish that the beneficiary was employed by a qualifying foreign entity in a managerial or 
executive capacity for at least one out of three years prior to filing the current Form 1-129. 
In response, the petitioner provided a letter dated December 6, 2007 asserting that the beneficiary was 
employed abroad for at least one out of the three years prior to applying for lawful admission to the United 
States. The petitioner asserted that the beneficiary's lawful admission into the United States took place on 
December 2 1,2004 and addressed the beneficiary's employment abroad prior to his date of admission. 
On March 13, 2008, the director issued a decision denying the petitioner's Form 1-129. 
 The director 
determined that the beneficiary was not employed abroad for one year within the relevant three-year time 
period and therefore declined to address the issue of whether the beneficiary's employment abroad was within 
a qualifying managerial or executive capacity. 
EAC0719851662 
Page 5 
On appeal, the petitioner disputes the director's decision, arguing that the director used the incorrect three- 
year time period as his point of reference. Specifically, the petitioner asserts that the director should have 
considered the beneficiary's employment abroad in light of the fact that it took place within three years of the 
beneficiary's lawful admission into the United States in a nonimmigrant visa category. The petitioner further 
contends that 8 C.F.R. 4 214.2(1)(3)(iii) is inconsistent with 8 C.F.R. 4 214.2(1)(l)(ii)(A) and section 
101(a)(15)(L) of the Act. In support of its position, the petitioner cites Matter of Thompson, 
18 I. & N. Dec. 169 (Comm. 198 l), in which the commissioner determined that section 101(a)(15)(L) of the 
Act "only requires the employment of the beneficiary outside of the United States by the foreign firm or other 
legal entity for one year prior to entry." The AAO points out, however, that Citizenship and Immigration 
Services (CIS) has since overturned Matter of Thompson, determining that the case was "an inappropriate 
precedent decision." 52 Fed. Reg. 5738, 5741 (Feb. 26, 1987). In addition, section 101(a)(15)(L) of the Act 
expressly states in pertinent part the following: 
[A]n alien who, within 3 years preceding the time of his application for admission into the 
United States, has been employed continuously for one year by a firm or corporation or other 
legal entity or an affiliate or subsidiary thereof and who seeks to enter the United States 
temporarily in order to continue to render his services to the same employer or a subsidiary 
or affiliate thereof in a capacity that is managerial, executive, or involves specialized 
knowledge . . . . 
(emphasis added). 
Thus, in no way does the Act support the petitioner's liberal interpretation. Rather, the Act indicates that CIS 
should only consider an alien's employment during the three years prior to entry into the United States under a 
specific set of circumstances, i.e., if the alien's U.S. entry was for the purpose of employment for a U.S. entity 
that is an affiliate or subsidiary of the foreign employer. In other words, if an alien had obtained a 
nonimmigrant employment-based visa and has spent hisher time in the United States working for a 
qualifying U.S. entity as described above, the time spent in the United States would not preclude the alien 
from being able to establish qualifying employment abroad for the requisite one-year period. Under this 
specific set of facts, CIS'S three-year point of reference would be the time period prior to the beneficiary's 
lawful admission into the United States in a nonimmigrant visa category. Section 101(a)(15)(L) of the Act 
and 8 C.F.R. 5 214.2(1)(l)(ii)(A) both work to ensure that an alien such as the one described herein gets 
adequate consideration for nonimmigrant classification as an L-1 intracompany transferee. However, this 
same language implies that an alien who enters the United States under a nonimmigrant classification for any 
purpose other than to be employed by a U.S. entity that is an affiliate or subsidiary of the foreign employer 
does not merit consideration under the express provisions of section 101(a)(15)(L) of the Act. 
As such, we must rely on the relevant sections of Title 8 of the Code of Federal Regulations, which provide 
further insight on the interpretation and application of section 101(a)(15)(L) of the Act. Specifically, the 
regulation at 8 C.F.R. 214.2(1)(l)(ii)(A) reiterates the provisions of section lOl(a)(lS)(L) of the Act and 
further adds the following, in pertinent part: 
EAC07 19851662 
Page 6 
Periods spent in the United Sates in lawful status for a branch of the same employer or a 
parent, affiliate, or subsidiary thereof and brief trips to the United States for business or 
pleasure shall not be interruptive of the one year of continuous employment abroad but such 
periods shall not be counted toward fulfillment of that requirement. 
As previously stated, the beneficiary in the present matter first entered the United States on December 21, 
2004 as a 5-2 dependent of an exchange visitor and subsequently changed his status on November 2, 2006 to 
that of an H-4 dependent of an H-1B nonimmigrant. This information indicates that the beneficiary had 
remained in the United States for approximately two and a half years prior to the date the instant petition was 
filed. As such, the extended period the beneficiary spent in the United States cannot be deemed to have been 
on behalf of a qualifying organization. In addition, it cannot be deemed to be the type of brief trip for 
business or pleasure described in the above regulatory provision. 
Therefore, given that the beneficiary's presence in the United States has not been for the purpose of being 
employed by the same employer or a subsidiary or an affiliate thereof andlor if the beneficiary's stay in the 
United States prior to the filing of the petition cannot be deemed as brief trips for the purpose of business or 
pleasure, i.e., under the B-11B-2 nonimmigrant visa classification, then we must rely on 8 C.F.R. 
§ 214.2(1)(3)(iii), which expressly states that an individual petition filed on Form 1-129 shall be accompanied 
by 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. 
In the present matter, the beneficiary's stay in the United States was not for the purpose of being employed by 
the same employer or a subsidiary or an affiliate thereof. Rather, as explained earlier, the beneficiary 
remained in the United States for over two and a half years in two different visa classifications, both times as 
a dependent of the primary visa applicant. Therefore, the provisions specified in 8 C.F.R. 5 214.2(1)(3)(iii) 
and 8 C.F.R. 8 214.2(1)(3)(v)(B) must be applied. In other words, the petitioner must establish that the 
beneficiary was employed abroad by a qualifying organization for at least one out of the three years prior to 
the date the petition was filed. As the beneficiary was residing in the United States for over two out of the 
three years prior to the date the instant petition was filed, it would be factually impossible for the beneficiary 
to have been employed abroad for one year during the requisite three-year time period. Therefore, the 
petition was properly denied and the director's decision will be affirmed. 
In visa petition proceedings, the burden of proving eligbility for the benefit sought remains entirely with the 
petitioner. Section 291 of the Act, 8 U.S.C. 5 1361. Here, that burden has not been met. Accordingly, the 
appeal will be dismissed. 
ORDER: The appeal is dismissed.