dismissed L-1A Case: Electronics

U.S. Citizenship 
and Immigration 
Services 
In Re: 21920271 
Appeal of California Service Center Decision 
Form 1-129, Petition for L-lA Manager or Executive 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : SEP. 2, 2022 
The Petitioner sells touchscreen panels and displays. During the company's first year of operation in the 
United States, it employed the Beneficiary under the L-lA nonimmigrant visa status in an executive 
capacity as its chief executive officer (CEO). See Immigration and Nationality Act (the Act) section 
10l(a)(15)(L), 8 U.S.C. § 1101(a)(15)(L). The Petitioner sought to continue temporarily employing 
her in the same visa status, capacity, and position. 
The Director of the California Service Center denied the petition. The Director concluded that the 
Petitioner did not demonstrate its proposed employment of the Beneficiary in the claimed executive 
capacity. On appeal, the Petitioner submits additional evidence and asserts that prior counsel 
misdescribed the Beneficiary's proposed role with the company. The Petitioner contends that counsel 
should have requested the Beneficiary's L-lA classification in a managerial capacity, specifically as 
a manager of an essential function . See section 10l(a)(44)(A) of the Act (defining the term 
"managerial capacity" to include a function manager). 
The Petitioner bears the burden of establishing eligibility for the requested benefit by a preponderance 
of evidence. See section 291 of the Act, 8 U.S.C. § 1391 (discussing the burden of proof); see also 
Matter of Chawathe, 25 I&N Dec. 369, 375 (AAO 2010) (discussing the standard of proof) . Upon de 
novo review, we will dismiss the appeal. 
I. L-lA MANAGERS AND EXECUTNES 
A petitioner seeking to employ an L-lA manager or executive must demonstrate that - for at least one 
continuous year in the three years before a beneficiary's admission to the United States - the petitioner 
or its parent, branch, subsidiary, or affiliate employed the beneficiary abroad in a capacity that was 
managerial, executive, or involved specialized knowledge. 8 C.F.R. § 214.2(1)(3)(i), (iii), (iv). The 
petitioner must also establish that the beneficiary's prior education, training, and employment qualifies 
them for the proposed managerial or executive position in the United States . 8 C.F.R . § 2 l 4.2(1)(3)(ii), 
(iv). 
Because the Petitioner seeks to extend an L-1 petition that involved a "new office" in the United States, 
the company must demonstrate that it and the Beneficiary's foreign employer maintain a qualifying 
relationship and that it regularly did business during the year before the petition's filing. 8 C.F.R. 
§ 214.2(1)(14)(ii)(A), (B). A petitioner must also submit statements describing: the beneficiary's 
duties the prior year; the proposed duties; and the petitioner's staffing, including number of employees, 
types of positions held, and employee wages. 8 C.F.R. § 214.2(1)(14)(ii)(C), (D). Additionally, the 
Petitioner must provide evidence of its financial status. 8 C.F.R. § 214.2(1)(14)(ii)(E). 
II. INEFFECTIVE ASSISTANCE OF COUNSEL 
A petitioner must generally establish its eligibility "at the time of filing the benefit request." 8 C .F .R. 
§ 103 .2(b )(1 ). A petitioner cannot make material changes to a petition after its filing in an effort to 
make it comply with eligibility requirements. Matter of Izummi, 22 I&N Dec. 169, 17 5 (AAO 1998). 
Under USCIS policy, however, a petitioner's demonstration of ineffective assistance of counsel may 
warrant reversal or remand of a petition's denial. To assert a claim for ineffective assistance of counsel 
in immigration proceedings, a petitioner must submit the following materials: 
• A written affidavit describing: the petitioner's agreement with former counsel; the specific 
actions that counsel agreed to take; the actions counsel actually took; and any representations 
that counsel made about the actions; 
• Evidence that the petitioner informed prior counsel of the ineffectiveness allegation and gave 
them an opportunity to respond; and 
• Evidence that the petitioner filed a complaint against counsel with appropriate disciplinary 
authorities or an explanation for the non-filing of a complaint. 
Matter of Lozada, 19 I&N Dec. 637,639 (BIA 1988), aff'd, 857 F.2d 10 (1st Cir. 1988). 
The Board oflmmigration Appeals (BIA) designed these requirements to ensure adjudicators have the 
information needed to sufficiently evaluate claims of ineffective assistance and to deter meritless 
allegations. Matter of Lozada, 19 I&N Dec. at 639-40. Besides these documentary requirements, a 
petitioner must show that former counsel provided such poor legal help that the performance 
prejudiced the petitioner. Id. at 640. The United States Court of Appeals for the Ninth Circuit, which 
has jurisdiction over the proposed worksite in this matter, generally requires applicable parties to 
satisfy all Lozada requirements. Reyes v. Ashcroft, 358 F.2d 592, 597 (9th Cir. 2004). 
Consistent with the Petitioner's signed petition and support letters, the Director considered the 
Beneficiary's eligibility for extended L-lA visa status in an executive capacity as CEO. The 
Petitioner's response to the Director's request for additional evidence also indicated the company's 
proposed employment of the Beneficiary in an executive capacity as CEO. 
On appeal, however, the Petitioner alleges for the first time that the "petition's denial largely stems 
from prior counsel's negligent assistance." The Petitioner's chief financial officer (CFO) states that 
the company "made it clear to our former attorney that [the Beneficiary's] role would shift from 
executive oversight of the U.S. company, to her more natural specialized sales/marketing role, 
overseeing our largest division, Touch and Interactive Flat Panel Displays (IFPD)." The CFO states 
that "our attorney at the time[] felt it would be best to be consistent with the earlier filing and continue 
to categorize her as an executive." But the CFO says: "I can confirm she was then, and continues to 
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be[,] primarily tasked with overseeing the sales for the most popular and critical product line, our IFPD 
sales." The Petitioner now asserts that, as sales director of the IFPD division, the Beneficiary would 
manage an essential function of the business. 
Because the Petitioner has not met the Lozada requirements, however, we will not consider its claim 
of ineffective assistance of counsel. The Petitioner does not provide evidence that it informed prior 
counsel of the ineffectiveness claim or gave him an opportunity to respond. Also, the record lacks 
evidence that the company filed a complaint against him with appropriate disciplinary authorities. The 
Petitioner also does not explain the apparent non-filing of a complaint. As the Petitioner did not 
comply with Lozada, we will not consider whether prior counsel misdescribed the offered position. 
Also, because the Petitioner had to establish eligibility at the time of the petition's filing and cannot 
later materially change the petition, we will not consider the Beneficiary's proposed work as a sales 
director in a management capacity. See 8 C.F.R. § 103.2(b)(l); see also Matter of Izwnmi, 22 I&N 
Dec. at 175. Rather, we will review the Director's decision based on the Petitioner's original request 
for the Beneficiary's L-1 A classification in an executive capacity as CEO. 
III. THE NATURE OF THE ORIGINAL PROPOSED EMPLOYMENT 
The term "executive capacity" means work "primarily" involving: 
• Directing the management of an organization, or a major component or function of it; 
• Establishing the goals and policies of it, its component, or its function; 
• Exercising wide latitude in discretionary decision-making; and 
• Receiving only general supervision or direction from higher-level executives, the board of 
directors, or organization stockholders. 
Section 101(a)(44)(B) of the Act. 
When considering the executive nature of a proposed pos1t10n, USCIS reviews a petitioner's 
description of the job duties. See 8 C.F.R. § 214.2(1)(3)(ii) (requiring "a detailed description of the 
services to be performed"). The Agency also considers: the business's organizational structure; 
whether other employees would relieve a beneficiary from performing operational duties; the duties 
of any proposed subordinate workers; the business's nature; and other factors potentially affecting a 
beneficiary's duties or role. 
The Director found that, at the time of the petition's filing, the Petitioner did not demonstrate its 
possession of sufficient staffing to relieve the Beneficiary from primarily performing non-executive 
duties. See 8 C.F.R. § 103.2(b)(l) (requiring a petitioner to demonstrate eligibility "at the time of 
filing the benefit request"); see also Matter of G-Inc., Adopted Decision 2017-05, 4 (in the context of 
an L-lA petition for a functional manager, considering the operational and administrative work 
performed by the petitioner's staff). At the time of the petition's filing, the record shows the 
company's employment of five people. On appeal, the Petitioner concedes in its written brief that 
"sufficient staffing levels do not currently exist" to support the originally offered, executive position 
of CEO. Therefore, the Beneficiary would lack sufficient support to primarily perform executive-
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level duties. See 8 C.F.R. § 214.2(1)(3)(v)(C) (requiring a petitioner to demonstrate that a new office 
"will support an executive or managerial position" within one year of the initial petition's filing). 
Also, the Petitioner does not allege any errors in the Director's decision. The company states that "it 
is simply [prior counsel's] misclassification of the Beneficiary as an Executive, rather than a 
Functional Manager, and an inadequate description of the beneficiary's role that is the cause of the 
negative decision." Thus, we will affirm the petition's denial. See 8 C.F.R. § 103.3(a)(l)(v) (requiring 
dismissal of an appeal that does not specify any erroneous conclusion of law or statement of fact); see 
also United States v. Sineng-Smith, 140 S.Ct. 1575, 1579 (2020) (stating that, in the adversarial U.S. 
legal system, adjudicators rely on parties to frame the issues for decision). 
IV. CONCLUSION 
Because the Petitioner did not comply with case law requirements, we will not consider its claim of 
ineffective assistance of counsel. Also, as the Petitioner had to establish eligibility at the time of the 
petition's filing and cannot later materially change the petition, we will not consider the company's 
appellate amendments to the Beneficiary's proposed position and capacity. The Petitioner concedes 
that it lacks sufficient staffing to support an executive position as it originally requested and does not 
allege any errors in the Director's decision. We will therefore affirm the petition's denial. 
ORDER: The appeal is dismissed. 
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