dismissed L-1A Case: Entertainment Production

~dentifylns data deleted tn 
U.S. Department oi'Homeland Security 
20 Mass. Ave , N W., Rm. A3042 
Washington, DC 20529 
@ ~2i?%+3,n Services 
FILE: WAC 04 182 53296 Office: CALIFORNIA SERVICE CENTER   at el: MOY 1 0 2005 
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 101 (a)(15)(L) of the mmigration 
and Nationality Act, 8 U.S .C. § 1 10 1 (a)(15)(L) I 
ON BEHALF OF PETITIONER: 1 
INSTRUCTIONS: 1 
This is the decision of the Administrative Appeals Office in your case. All documents have be returned to 
the office that originally decided your case. Any further inquiry must be made to that office. d' 
n 
Administrative Appeals Office 
WAC 04 182 53296 
Page 2 
DISCUSSION: The Director, California Service Center, denied the petition for a 
matter is now before the Administrative Appeals Office (AAO) on appeal. The 
The petitioner filed this nonimmigrant petition seeking to employ 
intracompany transferee pursuant to section 10 1 (a)(15)(L) of the Immigration and 
U.S.C. 5 1101(a)(15)(L). The petitioner is a limited liability company 
that intends to operate as an entertainment production company. The 
of Jasmine Ltd., located in Tokyo, Japan. The petitioner seeks to 
president and creative director of its new office for a one-year period. 
The director denied the petition concluding that the petitioner failed to establish that: 
sufficient physical premises to house the new office; (2) the U.S. company has a 
the foreign entity; or that (3) the beneficiary was employed in an executive or 
foreign entity. 
On appeal, counsel for the petitioner claims that: (1) the beneficiary performs executive duti s overseas and 
will continue to perform executive duties for the United States entity; (2) the director misc aracterized the 
U.S. entity as a limited partnership rather than a limited liability company, and erroneously c ncluded that it 
is not controlled by the foreign entity; and (3) the petitioner provided evidence of an adequate ffice space for 
the U.S. company. Counsel submits a letter from the petitioner in support of the appeal. \ 
To establish L-1 eligibility, the petitioner must meet the criteria outlined in section 
Immigration and Nationality Act (the Act), 8 U.S.C. 5 1101(a)(15)(L). 
preceding the beneficiary's application for admission into the United 
have employed the beneficiary in a qualifying managerial or 
knowledge capacity, for one continuous year. In addition, the 
temporarily to continue rendering his or her services to the 
in a managerial, executive, or specialized knowledge capacity. 
The regulation at 8 C.F.R. €j 214.2(1)(3) states that an individual petition filed on Form 
accompanied by: 
(i) Evidence that the petitioner and the organization which employed or will empl y the 
alien are qualifying organizations as defined in paragraph (l)(l)(ii)(G) of this se tion. 
a 
(ii) Evidence that the alien will be employed in an executive, managerial, or 
knowledge capacity, including a detailed description of the services to be 
(iii) Evidewe that the alien has at least one continuous year of full-time 
abroad with a qualifying organization within the three years preceding 
the petition. 
(iv) Evidence that the alien's prior year of employment abroad was in a position tha 
managerial, executive or involved specialized knowledge and that the alien's 
WAC 04 182 53296 
Page 3 
education, training, and employment qualifies himher to perform the 
services in the United States; however, the work in the United States need n 
same work which the alien performed abroad. 
(v) If the petition indicates that the beneficiary is coming to the United 
manager or executive to open or to be employed in a new office in the 
the petitioner shall submit evidence that: 
(A) Sufficient physical premises to house the new office have been secured; I 
(B) The beneficiary has been employed for one continuous year in the 
period preceding the filing of the petition in an executive or 
and that the proposed employment involves executive or 
over the new operation; and 
(C) The intended United States operation, within one year of the 
petition, will support an executive or managerial position 
paragraphs (l)(l)(ii)(B) or (C) of this section supported 
regarding: 
(2) The size of the United States investment and the financial ab lity of 
the foreign entity to remunerate the beneficiary and to co ence 
doing business in the United States; and .D 
(I) The proposed nature of the office describing the scope of the 
its organizational structure, and its financial goals; 
(3) The organizational structure of the foreign entity. 1 
entity, 
The first issue in this proceeding is whether sufficient physical premises to house the new o fice had been 
secured at the time the petition was filed. \ 
The petition was filed on June 15, 2004. In support of the petition, the petitioner submitted a m 
lease agreement with Global Business Centers under which the petitioner will receive 
voicemail, and mail receipt and forwarding services. Pursuant to the agreement, the 
to reserve conference rooms and/or offices on an hourly basis for an additional fee. 
The director denied the petition on June 21, 2004 on the grounds that the petitioner had not sec red adequate 
physical premises to house the new office as required by 8 C.F.R. 214.2(1)(3)(v)(A). The direc or noted that 
the lease was on a month-to-month basis and did not provide the size of the premises. The dire or suggested 
that the failure to provide evidence of sufficient physical premises to house the new office raise questions as 
to whether the intended operation will support an executive or managerial position within on year of the 
approval of the petition. I 
WAC 04 182 53296 
Page 4 
On appeal, the petitioner claims that the lease submitted is a legitimate commercial lease an4 asserts that the 
space will only be utilized "to keep overhead to a minimum for the first few months whble we establish 
ourselves." The petitioner notes that many new companies utilize a similar type of lease and claims that the 
company will look for larger office space after the beneficiary anives in the United States and the company is 
able to ensure its investors that it can complete its planned projects. 
The petitioner's argument on appeal is not persuasive. The "lease" agreement submittdd provides the 
petitioner with only basic telephone and mail services and the right to reserve an office or cbnference room 
for an hourly fee. Although the petitioner has been given a suite number in an office building, there is no 
indication that an office had been assigned for the petitioner's regular and exclusive use. 4ccordingly, the 
petitioner has not established that it has secured adequate physical premises to house a produjction company. 
Even though the enterprise is in a preliminary stage of organizational development, the detitioner is not 
relieved from meeting the statutory requirements. As alluded to by the director, the evidenbe submitted in 
support of a new office petition should show that the company is prepared to commence busihess operations 
and should demonstrate a realistic expectation that the enterprise will succeed and rapidly expsnd as it moves 
away from the developmental stage to full operations, where there would be an actual need f4r a manager or 
executive who will primarily perform qualifying duties. To establish eligibility, the petition& must provide 
evidence that it has acquired sufficient physical premises from which to carry out his business #an. 
The petitioner claims on appeal that the company intends to locate a larger office space once it is prepared to 
move forward with its planned productions. However, the petitioner must establish eligibiliw at the time of 
filing the nonimmigrant visa petition. A visa petition may not be approved at a future date afteb. the petitioner 
or beneficiary becomes eligible under a new set of facts. Matter of Michelin Tire Corp., 17 U&N Dec. 248 
(Reg. Comm. 1978). The petitioner did not submit evidence that it had acquired sufficient phjsical premises 
to house the new office at the time of filing. For this reason, the appeal will be dismissed. 
The second issue in thls matter is whether the petitioner has established that there is a qualifyi~g relationship 
between the petitioner and the foreign entity, as required by 8 C.F.R. $ 214.2(1)(3)(i). The pertinent 
regulat~ons at 8 C.F.R. $ 214.2(1)(l)(ii) define the term "qualifying organization" and relbted terms as 
follows: 
(G) Qualzfiiing organization means a United States or foreign firm, corporation, or, other 
legal entity which: 
(1) Meets exactly one of the qualifying relationships specified in the definitionis of a 
parent, branch, affiliate or subsidiary specified in paragraph (l)(l)(ii) of this 
section; 
(2) Is or will be doing business (engaging in international trade is not required) las an 
employer in the United States and in at least one other country directly or 
through a parent, branch, affiliate or subsidiary for the duration of the allien's 
stay in the United States as an intracompany transferee; and, 
(3) Otherwise meets the requirements of section 10 1 (a)(15)(L) of the Act. 
WAC 04 182 53296 
Page 5 
(I) Parent means a firm, corporation, or other legal entity which has subsidiaries. 
(J) Branch means an operating division or office of the same organization hou$ed in a 
different location. 
(K) Subsidiary means a firm, corporation, or other legal ent~ty of whlch a parenk owns, 
directly or mdlrectly, more than half of the entlty and controls the ent~ty; or owns, 
dlrectly or indirectly, half of the entlty and controls the entity; or owns, dlrectly or 
~ndlrectly, 50 percent of a 50-50 joint venture and has equal control and veta power 
over the entlty; or owns, directly or ~ndirectly, less than half of the ent~ty, bud in fact 
controls the entity. 
The petitioner indicated on Form 1-129 that it is a subsidiary of the foreign entity. It alsq submitted an 
attachment explaining that the United States company is wholly owned by the foreign entity, aod managed by 
the beneficiary and Brendan Turrill. The petitioner provided: (1) the U.S. company's June 3, 2004 limited 
liability company management operating agreement indicating that the foreign entity is to b$come the sole 
member with 100 percent interest in the petitioner upon payment of a capital contribution of $10,000; (2) its 
membership certificate number one issued to the foreign entity on June 3, 2004; and (3) evidence that the 
petitioner's checking account was opened with an initial deposit of $10,000 on June 9, 2004.i~he petitioner 
submitted a receipt showing that the $10,000 deposit included a check for $7,000 and a check fdr $3,000. 
The director denied the petition in part concluding that the petitioner had not established a qualifjring 
relationship with its claimed foreign parent company. In his decision, the director cited valrious excerpts 
from the petitioner's articles of organization including its management, membership, and genetal provisions, 
and concluded: 
Although the Operating Agreement states that the petitioning entity will be initially cladsified 
as a Corporation, however, the Operating Agreement also waived all responsibilitids and 
liabilities to members and assigned all management decisions to a nonmember manbgers. 
Therefore, the member in this entity is more akin to the limited partnership in a Libnited 
Liability Partnership (LLP) organization, and that the manager is somewhat similar to the 
General Partner of a LLP. 
Accordingly, the evidence of record clearly demonstrates that the foreign entity has no 
control over the day-to-day operation of the petitioning entity, and therefore fails to estdblish 
the qualifying relationships [sic]. 
On appeal, counsel for the petitioner asserts that the director erred in finding that the foreign eitity does not 
have managerial control over the U.S. corporation and "mischaracterized the corporate entity as a limited 
partnership rather than a limited liability corporation." In a letter submitted in support of thh appeal, the 
petitioner contends that the petitioner has been set up as a subsidiary of the foreign entity 'land that the 
WAC 04 182 53296 
Page 6 
beneficiary "is the link between these two companies, has control over the day-to-day qperation of the 
company, and will be in constant contact with [the foreign entity] in Tokyo." The petitionell, asserts that the 
foreign entity will therefore have control over the day-to-day operations of the petitioning entity. 
Upon review, the petitioner's arguments are persuasive, in part. The regulations and case law confirm that 
ownership and control are the factors that must be examined in determining whether a qualiCybng relationship 
exists between United States and foreign entities for purposes of this visa classification. ~btter of Church 
Scientology Internotional, 19 I&N Dec. 593 (BIA 1988); see also Matter of Siemens ~edicdl Systems, Inc., 
19 I&N Dec. 362 (BLA 1986); Matter of Hughes, 18 I&N Dec. 289 (Comm. 1982). In the conhext of this visa 
petition, ownership refers to the direct or indirect legal right of possession of the assets of an ientity 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 Interndtional, 19 I&N 
Dec. at 595. To establish the claimed parent-subsidiary relationship in this case, it must be $horn that the 
foreign employer owns and controls the petitioning entity. Control may be "de jure" by reasob of ownership 
of 5 1 percent of outstanding stocks, or in this case, membership interest, of the other entity. ~ek, eg. Matter of 
Hughes, 18 I&N Dec. 289 (Comm. 1982). 
The director, rather than focusing on the essential element of ownership, instead analyzed t'be petitioner's 
operating agreement, concluded that the foreign entity is "more alun to a limited in a Limited 
Liability Partnership (LLP) organization," noted that the non-member manager actually control4 the company, 
and determined that the foreign entity "has no control over the day-to-day operation" of the petitioner. 
The director's decision with respect to this issue will be withdrawn. The petitioner presented evidence that it 
has been legally established and recognized by the State of California as a limited liabiiity company. 
Accordingly, the director's attempts to characterize the company's structure as a pa+ership were 
inappropriate. The petitioner claims that the foreign entity owns a 100 percent interest in the JUnited States 
company. Therefore, if this fact were established, the foreign entity would have "de jure" coptrol over the 
petitioner and would meet the definition of a "parent" pursuant to 8 C.F.R. § 214.2(1)(l)$i)(1) without 
submitting further evidence to establish actual control over the U.S. company. 
Upon review, there is insufficient evidence in the record of proceeding to establish the cldimed parent- 
subsidiary relationship. However, due to the director's incorrect focus on the terms of ihe operating 
agreement rather than on the actual ownership of the company, the petitioner did not have sufficient notice of 
the deficiencies in its evidence. The AAO will therefore note these deficiencies for the record, /but is unable 
to conclude whether a qualifying relationship exists between the foreign and United States entitiek. 
As noted above, the petitioner submitted evidence that the foreign entity agreed to pay the petitibner $10,000 
for its membership interest in the company, along with a copy of its membership certificate issued to the 
foreign entity. The petitioner also submitted evidence that the U.S. company opened its bank acbount with a 
deposit of $10,000. However, the record does not contain evidence that the foreign entity actual$ paid for its 
ownership interest in the petitioner. The source and purpose of the $10,000 deposited into thd petitioner's 
account have not been documented. Absent evidence that these funds originated with the fore@ entity, or 
other evidence that the foreign entity paid for its membership interest, the petitioner has not estdblished that 
the two entities possess the claimed parent-subsidiary relationship. Evidence of this nature wduld include 
WAC 04 182 53296 
Page 7 
documentation of monies, property, or other consideration furnished to the entity in exchange for 
membership. As the appeal will be dismissed based on the grounds discussed above, this i$sue will not be 
discussed further. 
The third issue in thls matter is whether the petitioner established that the beneficiary has beed employed in a 
managerial or executive capacity with the foreign entity. 
Section 101(a)(44)(A) of the Act, 8 U.S.C. 5 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 compoment of 
the organization; 
(ii) supervises and controls the work of other supervisory, professional, or manbgerial 
employees, or manages an essential function within the organization, or a depaftment 
or subdivision of the organization; 
(iii) if another employee or other employees are d~rectly supervised, has the authotity to 
h~re and fire or recommend those as well as other personnel actions (such as 
promotion and leave authorization), or if no other employee is dlrectly supervised, 
functions at a senior level wrthin the organizational hierarchy or with respect to the 
functlon managed; and 
(iv) exerclses discretion over the day to day operations of the activity or functian for 
which the employee has authority. A first line supervisor is not considered ko be 
acting in a managerial capacity merely by virtue of the supervisor's supentisory 
duties unless the employees supervised are professional. 
Section 101(a)(44)(B) of the Act, 8 U.S.C. 3 1101(a)(44)(B), defines the term "executive ca@acityU 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. 
On an attachment to the L Classification Supplement to Form 1-129, the petitioner provided the following 
description of the beneficiary's duties for the past three years: 
WAC 04 182 53296 
Page 8 
Wrote and produced three television series for Japanese television; Wrote two published 
novels; Lectured on screenwriting; Screenwriter for 2004 television series of 24 dramatic 
episodes airing beginning April 2004 and a teIevision feature movie in 2004; Writer, three 
books to be published 2004-2005; Managed copywrights [sic] and all business affairs for the 
above. 
In a June 10, 2004 letter, the petitioner described the beneficiary's current duties as: 
As the President and Director of the Japanese company, [the beneficiary] has overall 
supervision for the direction of the company. In addition, because the company is based on 
management of [the beneficiary's] literary talent and film and television residuals, [the 
beneficiary] has control over the management of the company. She hires and fires personnel, 
makes financial determinations on the direction of the company, determines which 
productions and materials will be produced. She also executes contracts, manages copyrights 
and residuals from her literary and screen writing credits. In addition, [the beneficiary], as the 
President and Director is the sole representative of the company. 
The petitioner noted that the beneficiary is a well-known author, novelist and screenwriter in Japan and 
provided a long list of her credits as a film screenwriter, television screenwriter, essayist, novelist, lecturer, 
journalist, and translator. The petitioner stated that the foreign company employs five full-time and two part- 
time employees, and specializes in production and planning of movie and television scripts, producing movie 
and television films and programs, literary reviews, managing copyrights for the beneficiary's novels and 
song lyncs, and managing the proceeds from the beneficiary's novels, film and television work. 
The director denied the petition concluding that the petitioner had not established that the beneficiary is 
employed in a managerial or executive capacity with the foreign entity. The director noted the number of 
claimed employees, speculated as to the foreign entity's possible organizational structure, and concluded that 
"a significant part of the beneficiary's duties consist of the day-to-day functions" of the company. 
On appeal, counsel for the petitioner states on the Form I-290B, Notice of Appeal: "The alien beneficiary 
performs executive duties overseas and will be continuing to perform executive duties." However, the 
petitioner does not address the beneficiary's duties in its accompanying letter, and instead emphasizes the 
beneficiary's proposed duties with the United States entity, an issue that was not specifically addressed by the 
director. 
Upon review, counsel's argument is not persuasive. Although the director's conclusion that the beneficiary 
has not been employed in a primarily managerial or executive position will be affirmed, the director's 
analysis with respect to the foreign entity's organizational structure will be withdrawn. It is appropriate for 
the director to consider the foreign entity's staffing levels as a factor in determining whether the beneficiary is 
employed in a qualifying managerial or executive capacity. See section 101(a)(44)(C) of the Act, 8 U.S.C. 
1101(a)(44)(C). However, it was inappropriate for the director to substitute speculation as to what positions 
or departments the foreign entity may have staffed in lieu of the required description of the organizational 
structure of the foreign entity. See 8 C.F.R. 4 214.2(1)(3)(v)(C)(3). As the director did not properly issue a 
WAC 04 182 53296 
Page 9 
request for evidence for the foreign company's organizational chart and a description of the duties performed 
by its seven employees, the AAO will confine its analysis of this issue to the beneficiary's job description. 
When examining the executive or managerial capacity of the beneficiary, the AAO will look first to the 
petitioner's description of the job duties. See 8 C.F.R. 5 214.2(1)(3)(ii). The petitioner's description of the job 
duties must clearly describe the duties to be performed by the beneficiary and ind'icate whether such duties are 
either in an executive or managerial capacity. Id. 
On review, the petitioner has provided a vague and nonspecific description of the beneficiary's duties that 
fails to demonstrate what the beneficiary does on a day-to-day basis. For example, the petitioner stated that 
the beneficiary "has overall supervision for the direction of the company," "has control over the management 
of the company," "makes financial determinations on the direction of the company," and "manages copyrights 
and residuals from her literary and screenwriting credits." The petitioner has not, however, described what 
specific efforts the beneficiary takes to supervise and direct the company or manage copyrights and residuals. 
Reciting the beneficiary's vague job responsibilities or broadly-cast business objectives is not sufficient; the 
regulations require a detailed description of the beneficiary's daily job duties. The petitioner has failed to 
answer a critical question in this case: What does the beneficiary primarily do on a daily basis? The actual 
duties themselves will reveal the true nature of the employment. Fedin Bros. Co., Ltd. v. Suva, 724 F. Supp. 
1 103, 1 108 (E.D.N.Y. 1989), afd, 905 F.2d 41 (2d. Cir. 1990). 
Furthermore, the record indicates that the beneficiary is primarily a writer by profession, rather than a 
manager or executive as contemplated by the definitions at sections 101(a)(44)(A) and (B) of the Act. 
Specifically, the evidence submitted by the petitioner indicates that in the three years preceding the filing of 
the petition, the beneficiary had written two published novels, completed three novels to be published in the 
near future, translated The Bell Jar for a Japanese publisher, written 169 episodes for three different Japanese 
television series, was in the process of writing 24 episodes of an upcoming television series, and a screenplay 
for an upcoming television movie. The petitioner has not provided evidence that the beneficiary's role as a 
novelist and screenwriter is incidental to her performance of executive and managerial duties for the foreign 
entity. Rather, it is reasonable to conclude that the beneficiary's participation in these creative projects, while 
very impressive, prohibits her from serving in a managerial or executive capacity for the foreign entity on a 
full-time basis. 
The AAO acknowledges that the beneficiary, as the majority shareholder and president of the foreign entity, 
exercises financial and creative control over her own work product and likely performs duties in a managerial 
or executive capacity intermittently, if not on a daily basis. However, the definitions of executive and 
managerial capacity have two parts. First, the petitioner must show that the beneficiary performs the high- 
level responsibilities that are specified in the definitions. Second, the petitioner must show that the beneficiary 
primarily performs these specified responsibilities and does not spend a majority of his or her time on day-to- 
day functions. Champion World, Inc. v. INS, 940 F.2d 1533 (Table), 1991 WL 144470 (9th Cir. July 30, 
1991). Accordingly, whether the beneficiary is a managerial or executive employee turns on whether the 
petitioner has sustained its burden of providing that her duties are "primarily" managerial or executive. See 
sections 101(a)(44)(A) and (B) of the Act. The word "primarily" is defined as "at first," principally,' or 
"chiefly." Webster S I1 New College Dictionary 877 (2001). Where an individual is "principally" or "chiefly" 
performing the tasks necessary to produce a product or to provide a service, that individual cannot also 
WAC 04 182 53296 
Page 10 
"principally" or "ch~efly" perform managerial or executive duties. To make such a determination as to 
whether a beneficiary performs primarily managerial or executive duties, it is necessary for CIS to require a 
detailed description of the beneficiary's duties and the time the beneficiary devotes to these duties. It is 
especially relevant when the beneficiary devotes a significant perform of her time to performing duties, such 
as writing novels and screenplays, that do not fall directly under traditional managerial or executive duties as 
defined in the statute. See e.g. IKEA US, Inc. v. US. Dept. of Justice 48 F. Supp. 2d 22,24 (D.D.C. 1999). In 
this matter, it is reasonable to assume that the beneficiary's involvement in writing novels and screenplays 
requires more of her time than any duties related to overseeing the management of the finished works. 
Based on the foregoing discussion, the petitioner has not established that the beneficiary has been employed 
in a managerial or executive capacity with the foreign entity. For this additional reason, the appeal will be 
dismissed. 
Although the appeal will be dismissed, the petitioner may of course file a new visa petition on behalf of the 
beneficiary, with the required supporting evidence, in a more appropriate nonimmigrant visa classification. 
The petition will be denied for the above stated reasons, with each considered as an independent and 
alternative basis for denial. In visa petition proceedings, the burden of proving eligibility for the benefit 
sought remains entirely with the petitioner. Section 291 of the Act, 8 U.S.C. 1361. Here, that burden has 
not been met. 
ORDER: The appeal is dismissed.