dismissed L-1A Case: Dance

.
U.S. Citizenship 
and lmmigrat1on 
Services 
MATTER OF S-S-1-G- LLC 
Non-Precedent Decision of the 
· Administrative Appeals Office 
DATE: OCT. 16, 2018 
APPEAL OF CALIFORNIA SERVICE CENTER DECISION 
PETITION: FORM 1-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, which operates a dance school through a wholly-owned subsidiary 
seeks to temporarily employ the Beneficiary as manager of its new office I under the L-1 A 
nonimmigrant classification for intracompany transferees. Immigration and Nationality Act (the 
Act) section l01(a)(l5)(L), 8 U.S.C. § 110l(a)(15)(L). The L-lA 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 California Service Center denied the petition, concluding that the record did not 
establish , as required, that: (1) it had secured adequate physical premises to house the new office; (2) 
the Petitioner has a qualifying relationship with the Beneficiary's foreign employer; and (3) the 
Petitioner will employ the Beneficiary in the United States in a managerial or executive capacity. 
The matter is now before us on appeal. On appeal, the Petitioner establishes that it did not receive 
the denial notice. Instead, the Petitioner received a second copy of the Director's request for 
evidence (RFE), to which the Petitioner had already responded. In order to give the Petitioner an 
opportunity to address the grounds for denial, we sent the Petitioner a copy of the denial notice. The 
Petitioner has not submitted any further response, and we consider the record to be complete. 
Upon de nova review, we will withdraw the ground for denial regarding adequate physical premises 
because the record sufficiently establishes not only the dance studio's right to use the property 
specified in the record, but also that the studio has actually been using the space. We will, however, 
dismiss the appeal based on the remaining two grounds for denial. 
1 The term "new office" refers to an organization which has been doing business in the United States for less than one 
year. 8 C .F.R. § 214.2(1)( I )(ii)(F) . The regulation at 8 C.F.R. § 214.2(1)(3)(v)(C) allows a "new office" operation no 
more than one year within the date of approval of the petition to support an executive or managerial position. The 
Petitioner has been inconsistent in its statements as to whether or not it seeks consideration as a new office, but the 
Petitioner organized as a limited liability company less than a year before the filing date. 
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Matter ofS-S-1-G- LLC 
I. LEGAL FRAMEWORK 
To establish eligibility for the L-lA nonimmigrant visa classification in a petition involving a new 
office, a qualifying organization must have employed the benefi~iary in a managerial or executive 
capacity for one continuous year within three years preceding the beneficiary's application for 
admission into the United States. 8 C.F.R. § 214.2(1)(3)(v)(B). In addition, the beneficiary must 
seek to enter the United States temporarily to continue rendering his or her services to the same 
employer or a subsidiary or affiliate thereof in a managerial or executive capacity. Id. 
The petitioner must submit evidence to demonstrate that the new office will be able to support a 
managerial or executive position within one year. This evidence must establish that the petitioner 
secured sufficient physical premises to house its operation and disclose the proposed nature and 
scope of the entity, its organizational structure, its financial goals, and the size of the U.S. 
investment. See generally, 8 C.F.R. § 214.2(1)(3)(v). 
II. QUALIFYING RELATIONSHIP 
The Director found that the Petitioner did not establish that it has a qualifying relationship with the 
Beneficiary's foreign employer. The Petitioner states that it adequately addressed this issue in 
response to the RFE. We find that the record ultimately supports a finding that the Petitioner has not 
established a qualifying relationship, but not for the reasons stated by the Director. 
To establish a "qualifying relationship" under the ·Act and the regulations, a 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 
generally section 10l(a)(l5)(L) of the Act; 8 C.F.R. § 214.2(1). 
The regulation at 8 C.F.R. § 214.2(l)(l)(ii)(L)(l) defines an "affiliate" as one of two subsidiaries 
both of which are owned and controlled by the same parent or individual. The Petitioner asserted 
that the Beneficiary previously worked abroad for 
The Petitioner also claimed that the Beneficiary's father, whose initials are Z.T., "owns and 
controls 75% of .... [and] 100% of the [petitioning] U.S. affiliate." This common ownership 
and control by Z.T., if documented in the record, would establish the claimed affiliation. 
The 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 for purposes of this visa classification. See Matter of Church Scientology Int'!, 19 l&N Dec. 
593 (BIA 1988); see also Matter of Siemens Med. Syss., Inc., 19 l&N Dec. 362 (BIA 1986); Maller 
of Hughes, 18 I&N Dec. 289 (Comm 'r. 1982). In the context of this visa petition, 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 Int'/, 19 l&N 
Dec. at 595. 
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Matter of S-S-1-G- LLC 
The Director denied the petition, stating that Z.T. 's purchase of the petitioning company did not 
conform to the terms of the limited liability company (LLC) agreement. Specifically, the Director 
stated that the agreement set the price at $100,000 and required the purchase to be completed in 
November 2016, whereas Z.T. wired $500,000 to the company in June 2017. 
The LLC agreement does not support the Director's findings. The LLC agreement did not fix the 
price of the company at $100,000. Rather, it specified different terms of payment depending on 
whether or not the purchase price exceeded $100,000. Also, the closing deadline in the LLC 
agreement referred to hypothetical future transfers of shares, rather than the initial establishment of 
the company . A separate unit purchase agreement set an October 2016 deadline for payment, but 
also indicated that the parties could agree to waive or extend that deadline. Z.T. did not meet the 
October deadline, but the record shows the purchase was finalized before the petition's filing date; 
there was no post-filing change of circumstances . 
The record shows that Z.T. paid in full for a 100% interest in the petitioning company , and did so 
before the petition's filing date. Therefore, the record does not support the Director ' s finding that 
the Petitioner had not adequately documented Z.T. 's purchase of the petitioning entity. 
Nevertheless , upon further review of the record, we cannot find that the Petitioner has established a 
qualifying relationship with The Petitioner stated that Z.T. "owns and controls 75% of 
but the record does not establish this direct ownership. Rather, an "Owners (shareholders) 
List" from 2016 indicated that owns 75% of and identified Z.T. as 
the legal representative of A simple list of shareholders is not sufficient to establish 
ownership of a company, and the Petitioner did not explain why it did not submit more 
comprehensive or authoritative evidence. Furthermore ,· the Petitioner did not establish the 
ownership of The record does not rule out Z.T. as an owner, or the sole owner, of 
but this mere possibility is not sufficient to meet the Petitioner's burden of proof. 
Further, the record contains insufficient evidence that exists as a legal entity. For 
example, the Petitioner did not submit copies of documents reflecting ____ registration as 
a limited company. 
A 2002 business license named Z.T. as "legal representative ," but the Petitioner has not 
established that this title conveys or implies ownership or control. Correspondence from 
referred to the Petitioner as affiliate, but this is not prima facie evidence of shared ownership 
and control. 
Documentation from 2002 referred to as a joint venture between three named parties, none of 
which is (or the 25% minority shareholder named on the shareholders list). The 
Petitioner did not document any subsequent sale or transfer of shares to nor did the 
Petitioner establish that (or Z.T.) owns any of the companies that are parties to the 
joint venture . Therefore, there is no continuity between the three parties named on the 2002 joint 
venture articles and the two different parties named on the 2016 shareholders list. 
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Maller ofS-S-I-G- LLC 
The record does not contain sufficient evidence that Z.T. owns or that 
owns Without adequate evidence of ownership, the Petitioner has not sufficiently 
established a qualifying relationship between itself and 
III. U.S. EMPLOYMENT IN A MANAGERIAL OR EXECUTIVE CAPACITY 
The Director denied the petition based on a finding that the Petitioner did not establish that it will 
employ the Beneficiary in a managerial or executive capacity. (The Petitioner has, at times, claimed 
that the Beneficiary meets requirements of both types of position.) 
"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 
101(a)(44)(A) of the Act. 
"Executive capacity" means an assignment within an organization in which the employee primarily 
directs the management of the organization or a major component or function of the organization; 
establishes the goals and policies of the organization, component, or function; exercises wide 
latitude in discretionary decision-making; and receives only general supervision or direction from 
higher-level executives, the board of directors, or stockholders of the organization. Section 
l01(a)(44)(B) of the Act. 
Based on the statutory definitions of managerial and executive capacity, the Petitioner must first 
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. 
When examining the managerial or executive capacity of a given beneficiary, we will look to 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 are in a 
managerial or executive capacity. See 8 C.F.R. § 214.2(1)(3)(ii). Beyond the required description of 
the job duties, we examine 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. 
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Matier of S-S-1-G- LLC 
Accordingly, we will discuss evidence regarding the Beneficiary's job duties along with evidence of 
the nature of the Petitioner's business and its staffing levels. 
A. Duties 
The Petitione~ stated that the Beneficiary would spend 45% of her time "Directing Management of 
the Organization," 25% of her time "Establishing Goals and Policies of the Organization," and 30% 
of her time on "Discretionary Decision Making." Within these three broad categories, the Petitioner 
listed various "Daily Duties" filling nearly two pages. The listed duties typically consist of general 
statements with few specific details about the company and staff. For example: 
Approve financial and employment goals and objectives for the company and 
approve and articulate the organization's vision by approving monthly and annual 
operating plans that support strategic direction .... 
Determine the most effective course of action needed to reach that goal by directing 
future leadership within the organization. 
Finalize strategies for ensuring the long-term financial viability of the company .... 
Finalize employment and compliance to regulatory concerns with department 
managers from situation[s] and problems that arise(] with customers{'] complaints of 
the quality of service and dance equipment. 
The description included the assertion that "the board of directors trusts [the Beneficiary's] 
expertise,'' but the record does not show that the Petitioner has a board of directors. 
In the RFE, the Director requested additional details about the Beneficiary's intended duties. In 
response, the Petitioner submitted the same basic job description, revised to add references to the 
Beneficiary's oversight over subordinate managers. Like the first, this second version of the job 
description referred to a board of directors although the Petitioner's LLC agreement did not establish 
a board of directors. Instead, the agreement specified that the company would be run by a manager, 
identified as the Beneficiary herself. 2 
The Director found that the Beneficiary's job description lacked specificity. The Director also noted 
that the percentage breakdown for the three broad areas of the Beneficiary's authority was the same 
for her U.S. position, running a small dance studio, and her position abroad, as the director of the 
2 We do not consider the description to refer to the foreign employer's board of directors, because the Petitioner has not 
claimed that the foreign entity has any ownership interest in the petitioning U.S. entity. Rather, the Petitioner claimed 
affiliation with the foreign entity through shared ownership by Z.T. The foreign employer is a separate legal entity from 
any of its owners, and therefore the Petitioner's employees would not be subject to the authority of the foreign 
company's board of directors. 
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Matter ofS-S-1-G- LLC 
investment center of a pharmaceutical company. The Director questioned the plausibility of this 
resemblance, given the different responsibiiities ofthe two positions. 
On appeal, the Petitioner asserts that the denial notice is simply "a 'mirror' copy of the entire RFE," 
which suggests that the Director "failed to take into consideration and/or review the supplemental 
answers and documents" included in the Petitioner's response to that RFE. 
As noted further above, the Petitioner initially received a copy of the RFE_ instead of the denial 
notice. In the denial notice, the Director listed the materials submitted in the Petitioner's response to 
the RFE, and made a new observation about the basic structural similarity between the foreign and 
U.S. job descriptions. By sending a new copy of the decision to the Petitioner, we provided the 
Petitioner an opportunity; to respond to these findings. The permitted response period has elapsed 
and we have received no supplement to the appeal. · 
The Petitioner has not overcome the Director's finding that the Beneficiary's U.S. job description 
lacked specificity and bore an implausible resemblance to her foreign job description. 
B. Staffing 
If staffing levels are used as a factor in determining whether an individual is acting in a managerial 
or executive capacity, 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. 
The Director acknowledged that the Petitioner claimed to employ managers and supervisors, but 
concluded that the Petitioner did not show that the positions "qualify as managerial or supervisory 
for immigration purposes," or that the Beneficiary would have "the high level of responsibilities" 
required by the statute and regulations. The Petitioner does not address these findings on appeal 
The Petitioner's staffing changed somewhat after the petition's filing date. Because the Petitioner 
qualifies as a new otlice (having done business for less than a year prior to the filing date), some 
organizational changes are to be expected and we can take them into account instead of relying 
solely on the company's structure as of the filing date. 
The · statutory definition of "managerial capacity" allows for both "personnel managers" and 
"function managers." See sections 10l(a)(44)(A)(i) and (ii) of the Act. Personnel managers are 
required to primarily supervise and control the work of other supervisory, professional, or 
managerial employees. The statute plainly states that 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." Section 101(a)(44)(A) of the Act; 8 C.F.R. 
§ 214.2(1)(1 )(ii)(B)( 4). If a petitioner claims that a beneficiary directly supervises other employees, 
those subordinate employees must be supervisory, professional, or managerial, and the beneficiary 
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Maller of S-S-1-G-LLC 
must have the authority to hire and fire those employees, or recommend those actions, and take other 
personnel actions. Sections 101(a)(44)(A)(ii)-(iii) of the Act; 8 C.F.R. § 214.2(1)(1)(ii)(B)(2)-(3). 
The Petitioner asserts that the Beneficiary will have authority over managers and supervisors. 
The Petitioner's organizational chart shows the following structure (including modifications m 
response to the RFE): 
General Manager [the Beneficiary; Full-Time] 
Artistic Director [Full-Time] 
[
Artistic Assistant [Full-Time] 
Lead Dance Instructor [Part-Time] · 
L3 Instructors [Part-Time Contractors] · 
Lead Fitness Instructor [Part-Time Contractor] 
L2 Instructors [Part-Time Contractor] 
Marketing Outreach Manager [Full-Time] 
CMarketing Assistant [Full-Time] 
Administrative Assistant [Part-Time] 
LFront Desk [2 Part-Time Employees; 1 Part-Time Contractor] 
The organizational chart provided the following capsule job descriptions for the Beneficiary's two 
highest-level prospective subordinates: 
Artistic Director: Manages the artistic direction of the company. Responsible for the 
studio curriculum and student education, creating the schedule, managing the lead 
instructor and hiring new students. 
Marketing Outreach Manager: Develops the marketing strategy and plans. 
Brainstorms various ways to market the studio to increase enrollment and client base. 
Prepare action plans and schedu[le] which identify targets to reach business 
development goals and objectives. 
The Petitioner acknowledged that the individuals in the above two positions were both "newly 
hired"; the positions did not exist until after the Petitioner acquired in October 2016. The 
timing of the hires raises the possibility that the Petitioner created the new positions to convey the 
appearance of organizational complexity for the sake of the petition. The Petitioner did not show 
that dance studios of comparable size typically employed full-time artistic and marketing managers. 
Also, because the Petitioner provided minimal details about the duties of those positions, the 
Petitioner did not establish that the positions are primarily managerial rather than primarily 
operational with incidental duties over (mostly part-time) subordinates. 
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Matter ofS-S-1-G- LLC 
IRS Forms W-2, Wage and Tax Statements, showed that paid 23 employees in 2016 (the last 
full year before the. filing date). Only two of those employees earned amounts that could be 
consistent with year-round, full-time employment; only six earned more than $5,000 for the year. 
Payroll documents for the months around the filing date show significant variation in work hours. A 
payroll report for August 2017 indicated that only one employee, the artistic director, worked full­
time. Pay receipts for September 2017, the month of filing, showed full-time salaries for the artistic 
assistant, marketing outreach manager, and marketing assistant, while the lead dance instructor 
worked only 15.75 hours during the month. 
A December 2017 employment agreement, executed shortly before the Petitioner responded to the 
RFE, set the artistic director's salary at $4000 per month, but the record does not contain subsequent 
payroll records to show that the Petitioner actually paid that amount. In the months immediately 
before that agreement, payroll documents show that the employee received only $833 per month. 
Payroll documents in the record show that the Petitioner increased the number of full-time 
employees after it purchased . and changed the artistic director's position from part-time to 
full-time after the Director issued the RFE. The record does not show that the resulting increase in 
payroll costs would be sustainable. According to the Petitioner, during the first half of 2017, the 
dance studio's expenses ($ I 20,004) were almost double its income ($60,989), and the salary 
increases occurred after that period. The Petitioner did not show that its income had increased to a 
level that would support the newly raised salaries. This issue is material to the important question of 
whet\ler the Beneficiary's position truly warrants subordinate layers of full-time management, or 
whether the Petitioner created those jobs to support the petition. · 
Because of the deficiencies discussed above, the Petitioner has not shown that the Beneficiary will 
supervise managers. 
To determine whether the Beneficiary manages professional employees, we must evaluate whether 
the subordinate positions require a baccalaureate degree as a minimum for entry into the field of 
endeavor. C.f. 8 C.F.R. § 204.5(k)(2) (defining "profession" to mean "any occupation for which a 
United States baccalaureate degree or its foreign equivalent is the minimum requirement for entry 
into the occupation"). Section 10 I (a)(32) of the Act states that "[t]he term'profession shall include 
but not be limited to architects, engineers, lawyers, physicians, surgeons, and teachers in elementary 
or secondary schools, colleges, academies, or seminaries." 
The Petitioner showed that some of the subordinates hold bachelor's degrees, but not that the 
positions require those degrees. Therefore, the Petitioner did not show that the Beneficiary will 
supervise professionals . 
The new organizational structure that the Petitioner created when it acquired includes levels 
of supervision, but the record does not establish the extent to which the higher-ranking employees 
would supervise lower-level workers rather than perform operational tasks of their own. The 
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Mauer of S-S-1-G- LLC 
presence of three or more layers on an organizational chart is not prima facie evidence that a 
company employs, or will employ, a manager. 
The Petitioner also has not articulated a specific function that the Beneficiary will manage. The term 
"function manager" applies generally wl:_ien a beneficiary does not supervise or control the work of a 
subordinate staff but instead is primarily responsible for managing an "essential function" within the 
organization. See section 101(a)(44)(A)(ii) of the Act. If a petitioner claims that a beneficiary will 
manage an essential function, it must clearly describe the duties to be performed in managing the 
essential function. In addition, the petitioner must demonstrate that:· 
(1) the function is a clearly defined activity; (2) the function is "essential," i.e., core 
to the organization; (3) the beneficiary will primarily manage, as opposed to perform, 
the function; ( 4) the beneficiary will act at a senior level within the organizational 
hierarchy or with respect to the function managed; and (5) the beneficiary will 
exercise discretion over the function's day-to-day operations. 
Maller of G- Inc., Adopted Decision 2017-05 (AAO Nov. 8, 2017). In this matter, the Petitioner has 
not described or provided evidence that the Beneficiary manages an essential function. 
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 10l(a)(44)(8) 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 a beneficiary 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 an 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." Id. 
The Petitioner established that the Beneficiary would be the highest-ranking official of the company, 
but this does not suffice to establish executive capacity. As explained above, the Petitioner did not 
establish that any of the Beneficiary's intended subordinates qualify as managers, and therefore the 
Beneficiary would not direct the management of the company through those subordinates. 
Based on the deficiencies and inconsistencies discussed above, the Petitioner has not established that 
it will employ the Beneficiary in a managerial or executive capacity in the United States. 
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· MatJer of S-S-1-G- LLC 
IV. CONCLUSION 
The Petitioner did not establish that it will employ the Beneficiary in a primarily managerial or 
executive capacity, or that a qualifying relationship exists between the Petitioner and the 
Beneficiary's claimed foreign employer. 
ORDER: The appeal is dismissed. 
Cite as Matter <?fS-S-1-G-LLC, ID# 1420383 (AAO Oct. 16, 2018) 
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