dismissed L-1A Case: Consulting

MATTER OF M-K-USA, LLC 
APPEAL OF VERMONT SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: FEB. 5, 2018 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a consulting firm, seeks to temporarily employ the Beneficiary as its "central 
executive officer" under the L-1 A nonimmigrant classification for intracompany transferees. See 
Immigration and Nationality Act (the Act) section IOI(a)(IS)(L), 8 U.S.C. § IIOI(a)(IS)(L). The 
L-1 A classification allows a corporation or other legal entity (including its affiliate or subsidiary) to 
transfer a qualifying foreign employee to the United States to work temporarily in a managerial or 
executive capacity. 
The Director of the Vermont Service Center denied the petition, concluding that the record did not 
establish that the Petitioner has a qualifying relationship with the Beneficiary"s foreign employer. 
The Director also determined that the Petitioner did not demonstrate that it is doing business as 
defined by the regulations. Finally, the Director concluded that the Petitioner did not establish that 
the Beneficiary would be employed in the United States in a managerial or executive capacity. 
On appeal, the Petitioner submits additional evidence and asserts that the Director's conclusions 
were m error. 
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 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 IOI(a)(IS)(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. !d. The 
petitioner must also establish that the beneficiary's prior education. training, and employment 
qualify him or her to perform the intended services in the United States. 8 C.F.R. § 214.2(1)(3). 
Matter of M-K-USA, LLC 
II. QUALIFYING RELATIONSHIP 
The first issue we will address is whether the Petitioner established that it has a qualifying 
relationship with the Beneficiary's foreign employer. 
To establish a ''qualifying relationship," the Petitioner must show that the Beneficiary's foreign 
employer and the proposed U.S. employer are the same employer (i.e. one entity with "branch'' 
offices), or related as a "parent and subsidiary'' or as "affiliates." See section I 0 I (a)( I 5 )(L) of the 
Act; see also 8 C.F.R. § 2I4.2(1)(I)(ii) (providing definitions of the terms "parent,'' ''branch,'' 
"subsidiary." and "affiliate"). 
The Petitioner states that it is an affiliate of the Beneficiary's foreign employer. The regulation at 8 
C.F.R. § 2I4.2(J)(I )(ii) define the term affiliate as follows: 
(K) Affiliate means 
(1) One of two subsidiaries both of which are owned and controlled by 
the same parent or individual, or 
(2) One of two legal entities owned and controlled by the same group 
of individuals. each individual owning and controlling 
approximately the same share or proportion of each entity .... 
In concluding that the Petitioner did not demonstrate a qualifying relationship, the Director observed 
that, according to its federal tax returns, the Petitioner is an S-corporation. The Director stated that 
Internal Revenue Service (IRS) rules require that an S-corporation be owned by a U.S. citizen or 
resident. On appeal, the Petitioner asserts that the Director erred in concluding that it is an S­
corporation. 
Regulation and case law confirm that ownership and control are the factors that must be examined in 
determining whether a qualifying relationship exists between United States and foreign entities. See, 
e.g, Matter of Church Scientology In! 'I, I 9 I&N Dec. 593 (Comm'r 1988); Malter of Siemens Med 
Sys .. lnc., I9 I&N Dec. 362 (Comm'r I986): Malter o(Hu?,hes, 18 l&N Dec. 289 (Comm'r 1982). 
Ownership refers to the direct or indirect legal right of possession of the assets of an entity with full 
power and authority to control; control means the direct or indirect legal right and authority to direct 
the establishment, management, and operations of an entity. Matter of Church Scientology lnt '1. 19 
I&N Dec. at 595. 
The Petitioner has not submitted sufficient evidence to demonstrate its actual ownership or that of 
the foreign employer. As general evidence of a petitioner's claimed qualifying relationship, a 
certificate of formation or organization of a limited liability company (LLC) alone is not sufficient to 
establish ownership or control of an LLC. LLCs are generally obligated by the jurisdiction of 
formation to maintain records identifying members by name, address, and percentage of ownership, 
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Maller of M-K-USA, LLC 
and written statements of the contributions made by each member, the times at which additional 
contributions are to be made, events requiring the dissolution of the limited liability company, and 
the dates on which each member became a member. These membership records, along with the 
LLC's operating agreement, certificates of membership interest, and minutes of membership and 
management meetings, must be examined to determine the total number of members, the percentage 
of each member's ownership interest, the appointment of managers, and the degree of control ceded 
to the managers by the members. Additionally, a petitioning company must disclose all agreements 
relating to the voting of interests, the distribution of profit , the management and direction of the 
entity , and any other factor aflecting control of the entity. Matter ol Siemens Me d. Sys. . Inc., 19 
l&N Dec. at 365. 
The Petitioner asserts on appeal that it and the foreign employer are commonly owned by the 
Beneficiary, thereby establishing a qualifying relationship . However, the Petitioner has submitted 
little of the documentation referenced above to demonstrate its actual ownership and control. For 
instance, the Petitioner does not submit membership certificates, documentation of monies , property, 
or other consideration furnished in exchange for membership , minutes of member meetings, or other 
such documentation to substantiate that it is wholly owned by the Beneficiary . 
We acknowledge that the Petitioner provides what appears to be an operating agreement; however, 
this document lists the Beneficiary as "senior managing member" along with two other " US 
managing members." Although the articles indicate that the senior managing member has 
substantial power over the US managing members , this document does not definitively clarify the 
Petitioner's actual ownership. In fact. this document and the Petitioner's assertion that it is wholl y 
owned by the Beneficiary contradict the information the Petitioner provided on the Form 1-129, 
Petition for a Nonimmigrant Worker. In the petition. the Petitioner stated that it is owned 50% by 
,. 25% by ' (Lebanon), .. and 25% 
owned by itself. Indeed, it is not clear how the Petitioner could have a 25% ownership interest in 
itself. The Petitioner has not explained the discrepancies in its claimed ownership . 
Further, as noted, the Director also concluded that the Petitioner appeared to be an S-corporation and 
therefore , could not be owned by a foreign entity or resident. On appeal , the Petitioner states that it 
is not an S-corporation . However , the Petitioner's assertion is questionable , as it has submitted two 
conflicting versions of its federal tax return for both 2014 and 2015. Specitically , it submitted IRS 
Forms 1120S U.S. Income Tax Return for an S Corporation, and IRS Forms I 065 U.S. Return of 
Partnership Income, for the same tax years. This discrepancy leave s only fmthcr question as to the 
corporate makeup and ownership of the Petitioner. The Petitioner must resolve this discrepancy in 
the record with independent, objective evidence pointing to where the truth lies. Maller of Ho, 19 
I&N Dec. 582, 591-92 (BIA 1988). Given the aforementioned discrepancies and lack of probative 
supporting evidence, the Petitioner has not established its ownership. 
In addition , the Petitioner has not sufficiently documented the foreign entity's ownership in support 
of its claim that both entities are commonly owned . For instance , the Petitioner submits the foreign 
entity 's articles of association dated in February 2008 stating in Article 5 that the company issued 
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Malter of M-K-USA, LLC 
1000 shares. However, neither the articles, nor any of the other supporting evidence, indicate to 
whom these shares were issued, The articles were signed by three "founders,'' including the 
Beneficiary. Otherwise, the Petitioner submits little other supporting documentation to substantiate 
ownership in the foreign entity, such as share or membership certificates, minutes of foreign entity 
member meetings, evidence of capital contributions, or other such relevant evidence. As such, the 
Petitioner has not submitted sufficient evidence to establish the ownership in the foreign entity. 
For the foregoing reasons, the evidence submitted does not sufficiently establish the ownership of 
either the Petitioner or the foreign entity, and does not support the Petitioner's claim that the two 
entities have an affiliate relationship. For this reason. the appeal will be dismissed. 
III. U.S. ENTITY DOING BUSINESS 
The next issue to analyze is whether the Petitioner has established that it is doing business. 
The regulations define a qualifying organization as one doing business as an employer in the United 
States and at least one other country. See 8 CFR. § 214.2(1)(1 )(ii)(G). ''Doing business," is defined 
as the regular, systematic, and continuous provision of goods or services. 8 C.F.R. 
§ 214.2(1)(1)(ii)(H) (defining the term "doing business"). The mere presence of an agent or office 
of the qualifying organization will not suffice. !d. 
The Petitioner has not established that it is doing business. The Petitioner stated in the Form 1-129, 
and submitted evidence. that it was established in 2009. However, the Petitioner's federal tax 
returns for 2015 and 2016 reflect that it did not earn any revenue or pay any wages to employees 
during these years. We acknowledge that the Petitioner provided agreements it has executed with 
potential clients. However, the Petitioner submits no supporting documentation to substantiate that 
it was regularly, systematically, and continuously providing services to these clients as of the date of 
the petition, such as evidence of services provided, invoices issued, payments made by clients, or 
other such relevant evidence. 
Indeed, in a support letter on appeal, the Petitioner states that it suffered "major setbacks" in 2015. 
that it is "now finally to the point of our first product sale,'' and that it only "started closing sales in 
2017 based on the successful trials results." We note that the petition was filed in August 2016. 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. § I 03.2(b)(l ). 
The Petitioner has not established that it was doing business as of the date of the petition. For this 
additional reason, the appeal will be dismissed. 
IV. U.S. EMPLOYMENT IN A MANAGERIAL OR EXECUTIVE CAPACITY 
The next issue to address is whether the Petitioner has established that the Beneficiary would be 
employed in a managerial or executive capacity in the United States. 
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Matter of M-K-USA, LLC 
"Managerial capacity" means an assignment within an organization in which the employee primarily 
manages the organization, or a department, subdivision. function, or component of the organization: 
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: has authority over personnel actions or functions at a senior level within the 
organizational hierarchy or with respect to the function managed: and exercises discretion over the 
day-to-day operations of the activity or function for which the employee has authority. Section 
10l(a)(44)(A) ofthe Act. 
The statute defines "executive capacity'' as 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 IOI(a)(44)(B) of the Act. 
If staffing levels are used as a factor in determining whether an individual is acting in a managerial 
or executive capacity, U.S. Citizenship and Immigration Services (USCIS) takes into account the 
reasonable needs of the organization, in light of the overall purpose and stage of development of the 
organization. See section 10l(a)(44)(C) of the Act. 
In denying the petition on this ground, the Petitioner pointed to the company's operating agreement 
and noted that the agreement states that the Beneficiary. the senior managing member. and its two 
other "US managing members" held equal power in the organization thereby indicating that the 
Beneficiary does not direct the management of the organization. On appeal, the Petitioner submits 
an expanded list of duties for the Beneficiary and asserts that he ""will be in charge of leading all 
aspects of the business and delegating tasks to subordinates.'" 
When examining the managerial or executive capacity of the Beneficiary, we will review the 
Petitioner's description of the job duties. The Petitioner's description of the job duties must clearly 
describe the duties to be performed by the Beneficiary and indicate whether such duties arc in a 
managerial or executive capacity. See 8 C.F.R. § 214.2(1)(3 )(ii). Beyond the required description of 
the job duties. USCIS examines 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 wil1 contribute to 
understanding a beneficiary's actual duties and role in a business. Accordingly. we will discuss 
evidence regarding the Beneficiary" s job duties along with evidence of the nature of the business and 
its staffing levels. 
A. Duties 
Based on the definitions of managerial and executive capacity, the Petitioner must first show that the 
Beneficiary will perfonn certain high-level responsibilities. Champion World. Inc. v. INS. 940 F.2d 
Matter of M-K-USA, LLC 
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. USCJS, 469 
F.3d 1313, 1316 (9th Cir. 2006); Champion World, 940 F.2d 1533. 
The Petitioner has not clearly articulated the nature of its business in the United States. From the 
submitted evidence, it appears that the Petitioner will act as a liaison to sell U.S. agricultural 
products to companies in the Middle East. The Petitioner explained that the Beneficiary would 
handle all operational aspects of the business. The Petitioner further stated that the Beneficiary 
would be tasked with "managing the existing sales leads and generating more sales" and "opening 
more markets in the Middle East.'' The Petitioner indicated that the Beneficiary would be 
responsible for ''establishing a US-based sales team to assist him" and training them "on Middle 
Eastern sales trends and behaviors and developing the best tools to promote US brands into such 
markets.'' The Petitioner also explained that the Beneficiary would be tasked with ·'designing new 
branding strategies," "creating the right marketing channels and messages," "coordinating projects 
and referrals," "handling sub-distributors," and "handling all aspects of management" such as 
finance and administration. 
This description indicates that the Beneficiary would devote a substantial amount of his time to non­
qualifying operational duties. For instance, the Petitioner states that the Beneficiary would be 
responsible for following up and generating sales leads, designing branding strategies, creating 
marketing messages, conducting site visits. coordinating projects and referrals, and handling sub­
distributors. As we have discussed, the Petitioner states that it did not generate its first sale until 
2017. A submitted email and invoice from May 2017 reflect that the Beneficiary likely handled all 
operational aspects of this sale, as he provided the invoice to the client and communicated wire 
transfer instructions for payment. The evidence does not indicate that that the Beneficiary would be 
relieved from primarily performing non-qualifying operational tasks or that that he would spend 
most of his time focusing on the broad goals and policies of the organization or managing 
supervisory and professional employees. In fact, the Petitioner acknowledges on appeal that it has 
no other employees and there is no evidence to demonstrate that it has hired any members of the 
"sales team" referenced in the Beneficiary's duty description. 
An employee who "primarily" performs the tasks necessary to produce a product or to provide 
services is not considered to be "primarily" employed in a managerial or executive capacity. See. 
e.g., sections IOI(a)(44)(A) and (B) of the Act (requiring that one ''primarily" perform the 
enumerated managerial or executive duties); Mal/er of Church Scientology Jnt '!, 19 I&N Dec. 593, 
604 (Comm 'r 1988). 
In addition, to the extent that the Petitioner references qualifying managerial or executive level tasks 
in the Beneficiary's duty description, such as his management of a sales team and "handling all 
aspects of management,'' these duties are vague and offer little insight into the actual nature of these 
activities. The Petitioner provides few examples and little supporting documentation to demonstrate 
the Beneficiary's performance of managerial or executive level duties. Specifics are clearly an 
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Maller of M-K-USA, LLC 
important indication of whether a beneficiary's duties are primarily executive or managerial in 
nature, otherwise meeting the definitions would simply be a matter of reiterating the regulations. 
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). 
Even though the Beneficiary holds a senior position within the organization. the fact that he will 
manage or direct a business does not necessarily establish eligibility for classification as an 
intracompany transferee in an managerial or executive capacity within the meaning of section 
I 0 I (a)( 44) of the Act. By statute. eligibility for this classification requires that the duties of a 
position be "primarily" managerial or executive in nature. Sections 10l(A)(44)(A) and (B) of the 
Act. 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; however, the 
position descriptions alone are insufficient to establish that his actual duties would be primarily 
managerial or executive in nature. 
B. Statling and operations 
In the Form I-129, the Petitioner indicated that it had two employees. However, on appeal. the 
Petitioner acknowledges that it has no employees stating that "there are no hired employees as of 
yet,'' that "there are no salaries to be paid until the company starts to generate profits." Although the 
Petitioner's operating agreement identities two U.S. managing members. the Petitioner explains that 
these individuals "have to work in another business to ensure their own income until such time as 
[the Petitioner] can afford to pay them a salary." Further, as we have noted, the Petitioner's tax 
documentation from 2015 and 2016 reflects that it has paid no salaries or wages and that it has 
generated no income. 
Therefore, the Petitioner has not established as of the date of the petition that it has sufficient 
operational employees to relieve the Beneficiary from performing all non-executive and non­
managerial aspects of the business. The Petitioner has not demonstrated as of the date of the petition 
that the Beneficiary would supervise and control the work of supervisory, professional. or 
managerial employees. or manage an essential function within the organization, or a department or 
subdivision of the organization or that he directs the management of the organization. Indeed, the 
Petitioner indicates that one of the Beneficiary's major responsibilities will be to hire, train. and 
direct a sales team, suggesting that he would require a team of operational employees to relieve him 
from these tasks. However, the Petitioner acknowledges that no such team exists. The Petitioner 
has not demonstrated that it has sufficient staff to relieve the Beneficiary from performing non­
qualifying operational tasks prominently emphasized in his duty description. Again. the Petitioner 
must establish that all eligibility requirements for the immigration benefit have been satisfied from 
the time ofthe tiling and continuing through adjudication. 8 C.F.R. § 103.2(b)(l). 
The evidence indicates that the Beneficiary will be involved in nearly all of the operational matters 
of the business and it has submitted little evidence to indicate that he will delegate operational tasks 
to subordinates. It has also not sufliciently clarified or documented his managerial or executive level 
Malter of M-K-USA. LLC 
tasks. In addition, the Petitioner has not demonstrated that the Beneficiary primarily oversees 
managerial or professional subordinates as of the date of the petition. As such, the evidence does not 
demonstrate that the Beneficiary would act in a qualifying managerial or executive capacity. For 
these reasons, the appeal will be dismissed. 
V. FOREIGN EMPLOYMENT IN A MANAGERIAL OR EXECUTIVE CAPACITY 
In addition, beyond the Director's decision, the Petitioner has not established that the foreign entity 
has employed the Beneficiary in a managerial or executive capacity as required. First, we note that 
the Petitioner has not provided a detailed description of the Beneficiary's duties abroad. The 
Petitioner states that the Beneficiary "personally handled all product test trials for the past three 
years in Qatar.·· Otherwise, the Petitioner sets forth no qualifying managerial or executive level 
tasks the Beneficiary performs for the foreign employer. 
Likewise, the Petitioner does not describe the foreign entity's staffing levels or even indicate 
whether the Beneficiary has any subordinates in his capacity abroad. The Petitioner does not submit 
an organizational chart position descriptions, evidence of wages or salaries paid to foreign 
employees, or other such evidence of its claimed affiliate's operations. The foreign entity's financial 
statements do not indicate whether the foreign entity pays any wages or salaries. Therefore, absence 
any supporting evidence as to the Beneficiary's duties and capacity abroad, we cannot conclude that 
he has been employed in a managerial or executive capacity. For this additional reason. the appeal 
will be dismissed. 
VI. CONCLUSION 
The appeal will be dismissed because the Petitioner has not established that it has a qualifying 
relationship with the Beneficiary's foreign employer, that it is doing business as required by the 
regulations, or that the Beneficiary is employed abroad and will be employed in the United States in 
a managerial or executive capacity. 
ORDER: The appeal is dismissed. 
Cite as Malter of M-K-USA. LLC, ID# 858027 (AAO Feb. 5, 2018) 
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