dismissed L-1A Case: Entertainment Production

~dentitliag data deletvd to 
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PUBLIC coiry 
U.S. Department of Homeland Security 
20 Mass Avo, N W . Rm A3042 
Wash~ngton. UC 2052') 
U.S. Citizenship . 
and Immigration 
FILE: WAC 04 182 53296 Office: CALIFORNIA SERVICE CENTER Date: MOV 1 0 2005 
PETITION: Pet~tion for a Nonimmigant Worker Pursuant to Section 10 l(a)(l5)(L) of the immigration 
and Nationality Act, 8 U.S.C. 5 1 101 (a)(lS)(L) 
ON BEHALF OF PETITIONER: 
0 
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. 
* --.----+ 
obert P. Wiemann, Direct 
h 
Administrative Appeals 0fiice 
WAC 04 182 53296 
Page 2 
DISCUSSION: The Director, California Service Center, denied the petition for a nonimm~uant 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 as an L-1A nonimmigrant 
intracompany transferee pursuant to section 10l(a)(l5)(L) of the Immigration and Nationality Act (the Act), 8 
U.S.C. $ I lOl(a)(lS)(L). The petitioner is a limited liability company organized in the State of California 
that intends to operate as an entertainment production company. The petitioner claims that it is a substdiary 
of, located in Tokyo, Japan. The petitioner seeks to employ the beneficiary as executive vice 
president and creative director of its new off~ce for a one-year period. 
The director denied the petition concluding tlitt the petitioner failed to establish that: (1) it has secured 
sufficient physical premises to house the new office; (2) the U.S. company has a qualifying relationship with 
the foreign entity; or that (3) the beneficiary was employed in an executive or managerial carpacity with the 
foreign entity. 
On appeal, counsel for the petitioner claims that: (1) the beneficiary performs executive duties overseas and 
will continue to perform executive duties for the United States entity; (2) the director miscfiaracterized the 
U.S. entity as a limited partnership rather than a limited liability company, and erroneously'concluded that it 
is not controlled by the foreign entity; atid (3) the petitioner provided evidence of an adequate office space for 
the U.S. company. Counsel submits a letter fiorn the petitioner in support of the appeal. 
To establish L-1 eligibility, the petitioner must meet the criteria outlined in section IOl(a)(IS)(L) of the 
Immigration and Nationality Act (the Act), 8 U.S.C. I lOl(a)(lS)(L). Specifically, within three years 
preceding the beneficiary's application for admission into the United States, 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. In addition, the beneficiary must seek to enter the United States 
temporarijy 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 Ir129 shall be 
accompanied by: 
(i) Evidence that the petitioner and the organization which employed or will employ the 
alien are qualifLing organizations as defined in paragraph (l)(l)(~i)(G) of this seation. 
(ii) Evidence that the alien will be employed in an executive, managerial, or specialized 
howledge capacity, including a detailed description of the services to be performed. 
(iii) Evidewe 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 petihon. 
(lv) Evidence that the alien's prior year of employment abroad was in a position that was 
managerial, executive or involved special~zed knowledge and that thk alien's prior 
WAC 04 182 53296 
Page 3 
education, training, and employment qualrfies hirnher to perform the intended 
servlces m the Unlted States; however, the work in the Unlted States need nqt be the 
same work which the alien performed abroad. 
(v) If the petrtion Indicates that the beneficiary is comlng to the United Sbtes as a 
manager or executive to open or to be employed in a new office in the Unlted States, 
the petitloner 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 the year 
period preceding the filing of the petrtion in an executive or managerial c;apaclty 
and that the proposed employment involves executive or managerial authority 
over the new operation; and 
(C) The intended United States operation, within one year of the approval] of the 
I petition, wi1l.support an executive or managerial position as defihed in 
paragraphs (I)(l)(ii)(B) or (C) of this section supported by infortmation 
regarding: 
(I) The proposed nature of the office describing the scope of thelentity, 
its organizational strudture, and its financial goals; 
(2) The size of the United States investment and the financ~al abiIlty of 
the fore~gn ent~ty to remunerate the benefictary and to comence 
doing business in the Untted States; and 
(3) The organizational structure of the foreign entity. 
. . 
The first issue in this proceeding is whether sufficient physical premises to house the new office had been 
secured at the time the petition was filed. 
. The petition was filed on June 15,2004. In suiport of the petition, the petitioner submitted a mqntn-to-month 
lease agreement with Global ~usiness Centers under which the petitioner will receive telephohe answering, 
voicemail, and mail receipt and forwarding services. Pursuant to the agreement, the petitioner has the ability 
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 secked adequate 
physical premises to house the new office as required by 8 C.F.R. 6 214.2(1)(3)(v)(A). The diredtor noted that 
the lease was on a month-to-month basis and did not provide the size of the premises. The direotor suggested 
that the-failure to provide evidence of sufficient physical premises to house the new office raises questions as 
to whether the intended operation will support an executive. or managerial position within one year of the 
approval of the petition. 
WAC 04 182 53296 
Page 4 
On appeal, the petitioner claims that the lease submitted is a legitimate commercial lease and asserts that the 
space will only be utilized "to keep overhead to a minimum for the fiqt few months while 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 arrives in the United States and the company is 
able to ensure its investors that + can complete its planned projects. 
The petitioner's argument on appeal is not persuasive. The "lease" agreement submitted provides the 
petitioner with only basic telephone and mail services and the right to reserve an office or conference room 
for an hourly fee. Although the petitioner has been given a suite number in an office building, there is no 
indication that an ofice had b& assigned for the petitioner's regular and exclusive use. Accordingly, the 
petitioner has not established that it has secured adequate physical premises to house a production company. 
Even though the enterprise is in a preliminary stage of organizational deveiopnient, the ptitioner is not 
relieved from meeting the statutory requirements, As alluded to by the director, the evidence submitted in 
support of a new office petition should show that the company is prepared to commence business~operations 
and should demonstrate a realistic expectation that the enterprise will succeed and rapidly expand as it moves 
away from the developmental stage to full operations, where there would be an actual need for a manager or 
executive who will primarily perform qualifying duties. To establish eligibility, the petitioner must provide 
evidence that it has acquired sufficient physical premises from which to cany out his business plan. 
The petitioner cIaims 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 eligibility at the time of 
filing the nonimmigrant visa petition. A visa petition may not be approved at a future date after the petitioner 
or beneficiary becomes eligible under a new set of facts. Matter of Michelin Tire Corp., 17 I&N Dec. 248 
(Reg. Comm. 1978). The petitioner did not submit evidence that it had acquired sufficient physicat premises 
to house the new office at the time of filing. For.this reason, thk appeal will be dismissed. 
The second issue in this matter is whether the petitioner has established that there is a qualifying relationship 
between the petitioner and the foreign entity, as required by 8 C.F.R. § 214.2(1)(3)(i). The pertinent 
regulations at 8 C.F.R. '5 214.2(1)(l)(ii) define the term "qualifying organization" and rel~ted terms as 
follows: 
(G) QualrfLing organization means a United States or foreign firm, corporation, or other 
legal entity which: 
(I) Meets exactly one of the qualifying relationships specified in the definitions 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) as an 
employer in the United States and in at least one other country directly or 
through a parent, branch, affiliate or subsidiary for the durat~on of the alien's 
stay m the United States as an intracompany transferee; and, 
(3) Otherwise meets the requirements of section 101 (a)(15)(L) of the Act. 
WAC 04 182 53296 
, Page5 
(I) Parenf means a firm, corporat~on, or other legal entlty wh~ch has subs~d~anes. 
(J) Branch means an operat~ng dlvlslon or office of the same organ~zatlon housed in a 
d~fferent location. 
(K) Subsrdiary means a firm, corporation, or other legal entity of whlch a parent owns, 
dlrectly or indtrectly, more than half of the entity and controls the ent~ty, or owns, 
d~rectly or indirectly, half of the entity and controls the ent~ty; or owns, directly or 
indirectly, 50 percent of a 50-50 joint venture and has equal control and veto power 
over the entlty; or owns, dlrectly or md~rectly, less than half of the entlty, but In fact 
controls the entity. 
The petitioner indicated on Form 1-129 that it is a subsidiary of the foreign entity. It also submitted an 
.attachment explaining that the United States company is wholly owned by the foreign entity, and managed by 
the beneficiary and 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 become 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 ah initial deposit of $10,000 on June 9, 2004. The petitioner 
submitted a receipt showing that the $10,000 deposit included a check for $7,000 and a check for $3,000. 
The dlrector denied the petition in part concluding that the petitioner had not established a qualifying 
relationship with its claimed foreign parent company. In his decision, the director cited v~ous excerpts' 
from the petitioner's articles of organization including its management, membership, and general provisions, 
and concluded: 
Although the Operating Agreement states that the petitioning entity will be initially clasified 
as a corporation, howevet, the Operating Agreement also waived all responsibilitieis and 
liabilities to members and assigned all management decisions to a ,nonmember managers. 
Therefore, the ,member in this entity is more akin to the limited partnership in a Limited 
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-today operation of the petitioning entity, and therefore fails to establish 
the qualifying relationships [sic]. 
On appeal, counsel for the petitioner asserts that the director erred in finding that the foreign entity does not 
have managerial control over the U.S. corporation and "rnischaracterized the corporate entity as a limited 
partnership rather' than a limited liability corporation." In a letter submitted in support of the appeal, the 
petitioner contends that the petitioner has been set up as a subsidiary of the foreign entity and that the 
WAC 04 1 S2 53296 
Page 6- 
beneficiary "is the link between these two companies, has control over the day-to-day operation of the 
company, and will be in constant contact with [the foreign entity] in Tokyo." The petitioner 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 kontrol are the factors that must be examined in determining whether a qualimng relationship 
exists between United States and foreign entities for purposes of this visa classification. ~htler of Church 
Scientology Internafional, 19 I&N Dec. 593 (DM 1988); see also Matter of Siemens Medical System, Inc., 
19 I&N Dec. 362 (BLA 1986); Matter of Hughes, 18 I&N Dcc. 289 (Comm. 1982). In the conkext 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 Internqfional, 19 I&N 
Dec. at 595. To establish the claimed parent-subsidiary relationship in this case, it must be shown 1hat.the 
foreign employer oms and controls the petitioning tmtity. Control may be "de jure" by reason of ownership 
of 5 I percent of outstanding stocks, or in this case, membership interest, of the other entity. Sek, eg. Matter of 
Hughes, 18 I&N Dec. 289 (Comm. 1982). 
The director: rather than focusing on the essential element of ownership, instead analyzed the pe 
concluded that the foreign entity is "more ahn to a limited [partner) in a rn 
LLP) organization," noted that the non-member manager actually controls the company, 
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 liability company. 
Accordingly, the director's attempts to characterize the company's structure as a parpership were 
inappropriate. The petitioner claims that the foreign entity owns a 100 percent interest in the'United States 
company. Therefore, if this fact were established, the fol.eign entity would have "de jure" control over the 
petitioner and would meet the definition of a "parent" pursuant to 8 C.F.R. $ 214.2(1)(1){ii)(J) 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 claimed parent- 
subsidiary relationship. However, due to the director's incorrect focus on the terms of the 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, 5ut is unable 
to conclude whether a qualifying relationship exists between the foreign and United States entities. 
As noted above, the petitioner submitted evidence that the foreign entity agreed to pay the petitioner $10,000 
far its membership Interest in the company, along with a copy of its membership certificate issued to the 
foreign entity. The petlt~oner also submitted evidence that the U.S. company o~ned its bank account with a 
deposit of $10,000. However, the record does not contain evidence that the fore~gn entity actually paid for its 
ownership interest in the petitioner. The source and purpose of the $10,000 deposited into the petitioner's 
account have not been dmumented. Absent evidence that these funds originated with the foreign entity, or 
other evidence that the foreign entity paid for its membership interest, the petitioner has not established that 
the two entities possess the claimed parent-subsidiary relationship. .Evidence of this nature would include 
WAC 04 182 53296 
Page 7 
documentation of monies, property, or other consideration hrnished to the entity in exchange for 
membersh~p. As the appeal will be dismissed based on the grounds discussed above. this Issue wlll not be 
discussed further. 
The third issue in this matter is whether the petitioner established that the beneficiary has been employed in a 
managerial or executive capacity with the foreign entity. 
Sect~on IOl(a)(44)(A) of the Act, 8 U.S.C. 4 1101(a)(44)(A), defines the term "managerial capacity" as an 
assignment withln an organization in wh~ch the employee primarily: 
(1) manages the organization, or a department, subdivision, function, or component of 
the organization; 
(11) supervises and controls the work of other supervisory, professional, or rnanagenal 
employees, or manages an essential function wlth~n the organization, or a depattment 
or subdivision of the organization; 
(iii) if another employee or other employees are directly supervised, has the authohty to 
hire and fire or recommend those as well & 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. 
Section 101(a)(44)(B) of the Act, 8 U.S.C. 1'10l(a)(44)(3), 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 funct~on of the 
organ~zation; 
(ii) establishes the goals and policies of the organization, component, or function; 
(iii) exercises wide Iatitude in discretionary decision making; and 
(iv) recelves only general supervision or direction fiom higher level executives, the bard 
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 air1ng beginning April 2004 and a television 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 televtsion 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 aIso 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 telev~sion films and programs, literary reviews, managing copyrights for the beneficiary's novels and 
song lyncs, and managing the proceeds frcrm the beneficiary's novels, film and televis~on 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 perfonn 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 asrmed, 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 exsbtive 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 ~ts 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. fj 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 indicate whether such duties are 
either in an executive or managerial capacity. M. 
On review,'the pktitioner 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 cornpan'y," "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 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. Sava, 724 F. Supp. 
1103, 1108 (E.D.N.Y. 1989), afd, 905 E.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 def*itions at sections IOl(a)(44)(A) and '(B) of the 'Act. 
SpecificalIy, the evidence submitted by the petitioner indicates that in the three years preceding the filing of 
the petition, the beneficiary had wnnen two published novels, completed three novels to be published in the 
near fiture, translated The Bell Jar for a Japanese ~ublisher, 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.'~ role as a 
novelist and screenwriter is incidkntal to her performance of executive and managerial duties for the foreign 
entity. Rather, it is reasonable to conciude 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 . m 
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 rnusishow 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.'' Websrer 's New College Dictionary 877 (200 1). 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 "chiefly" 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 tinie 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. ofJustice 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 managenal or executive capacity with the foreign entity. For this additional reason, the appeal w~ll be 
d~srnlssed. 
Although the appeal will be dismissed, the petitioner may of course file a new visa petltion on behalf of the 
beneficiary, with the requ~red supporting evidence, in a more appropriate nonimmigrant visa classification. 
The petitlon will be denied for the above stated reasons, with each considered as an independent and 
altmatrve basis for denial. In visa petitlon proceedmgs, the burden of provlng eIigib~lity for the benefit 
sought remalns enbrely with the petitioner. Section 291 of the Act, 8 U.S.C. $ 1361. Here, that burden bas 
not been met. j 
ORDER: The appeal is dismissed.