dismissed L-1A Case: Escape Room Games / Promotional Goods

U.S. Citizenship 
and Immigration 
Services 
MATTER OF T-E-Z-LLC 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: APR. 4, 2019 
APPEAL OF CALIFORNIA SERVICE CENTER DECISION 
PETITION: FORM 1-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner intends to design, supply, and build escape room games as its "main activity" and to 
engage in the wholesale of "custom-branded promotional goods" as a secondary business activity. It 
seeks to temporarily employ the Beneficiary as its chief executive officer ("CEO") under the L-lA 
nonimmigrant classification for intracompany transferees. See Immigration and Nationality Act (the Act) 
section 10l(a)(l5)(L), 8 U.S.C. § l 10l(a)(l5)(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 Petitioner did not 
establish, as required, that the Beneficiary was employed abroad and would be employed in the United 
States in a managerial or executive capacity. 
On appeal, the Petitioner states that it "greatly departed" from its original business plan because of 
unforeseen setbacks. 
Upon de nova review, we will dismiss the appeal because the Petitioner has not established that the 
Beneficiary will be employed in the United States in an executive capacity. 
I. LEGAL FRAMEWORK 
To establish eligibility for the L-lA nonimmigrant visa classification, a qualifying organization must 
have employed the beneficiary "in a capacity that is managerial, executive, or involves specialized 
knowledge," for one continuous year within three years preceding the beneficiary's application for 
admission into the United States. Section 10l(a)(l5)(L) of the Act. In addition, the beneficiary must 
seek to enter the United States temporarily to continue rendering his or her services to the same 
employer or a subsidiary or affiliate thereof in a managerial or executive capacity. Id. The petitioner 
must also establish that the beneficiary's prior education, training, and employment qualify him or her 
to perform the intended services in the United States. 8 C.F.R. § 214.2(1)(3). 
Matter of T-E-Z- LLC 
11. EXECUTIVE CAPACITY IN THE UNITED STATES 
The Petitioner claims that the Beneficiary's proposed U.S. employment will be in an executive 
capacity. As the Petitioner does not claim that the Beneficiary would be employed in a managerial 
capacity, we will limit our discussion to addressing the Petitioner's claim and will not consider whether 
the Beneficiary would be employed in a managerial capacity. 
"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 10l(a)(44)(B) of the 
Act. 
Based on the statutory definition of 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). The Petitioner must also prove that the Beneficiary 
will be primarily engaged in 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. 
The description of the job duties must clearly describe the duties to be performed by the Beneficiary 
and indicate whether such duties are in an 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 the Beneficiary's subordinate employees, the presence of other employees to relieve the 
Beneficiary from performing operational duties, the nature of the business, and any other factors that 
will contribute to understanding the Beneficiary's actual duties and role in a business. Accordingly, 
we will discuss evidence regarding the Beneficiary's job duties along with evidence of the nature of 
the Petitioner's business and its staffing levels. 
A Supporting Evidence 
The petition form was filed in October 2017 and indicates that the Petitioner was established in 2015, 
had no employees at the time of filing, and would compensate the Beneficiary $50,000 annually in his 
proposed position as the company's CEO. In a supporting cover letter, the Petitioner stated that the 
Beneficiary would "oversee a large subordinate staff' upon approval of this visa petition and that he 
would be responsible for monitoring the company's revenues and profits, developing its business 
strategies and expansion plans, and overseeing activities, such as importing, storage, distribution, and 
client communications, which are directly related to the company's "wholesale of branded 
promotional goods imported from China." The Petitioner also provided a job duty breakdown stating 
that the Beneficiary would direct, design, and implement "strategic operational plans" and review 
"operations and activity reports, potential sales, and performance data" to establish a need for 
"program improvement" and cost reduction measures as well as determine strategies for reducing 
costs. The job duty breakdown included job duties that could only be carried out provided the 
Petitioner had an existing subordinate staff to execute the underlying operational duties. For instance, 
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Matter of T-E-Z- LLC 
the Petitioner stated that the Beneficiary would "[m]anage integrated project plans" in a timely and 
cost-effective manner, oversee new staff training, "monitor management personnel activities and 
reports of lower level personnel," and oversee and direct promotion activities. As previously noted, 
however, the Petitioner stated in the petition form that it did not have an existing support staff at the 
time of filing. 
The Petitioner's cover letter also includes a proposed organizational chart for "Year 1 of its 
operations." The chart shows six positions - the Beneficiary at the top of the hierarchy, a sales 
manager and a business development manager as his direct subordinates, and two customer service 
representatives and a sales representative at the bottom of the hierarchy. Only two individuals - the 
Beneficiary and the business development manager who is claimed to be the Petitioner's owner - were 
specifically named in the chart, thereby indicating that there were no known candidates to fill the 
remaining positions at the time this petition was filed. The Petitioner also provided a business plan 
which indicates that in addition to the Beneficiary and the business development manager who is 
claimed to be the Petitioner's owner, the Petitioner would hire a sales manager and two part-time 
customer service representatives within the first year of operation. In contrast with the cover letter, the 
business plan indicates that a sales representative would not be hired until the Petitioner's third year 
of operation. 
In a request for evidence (RFE), the Director acknowledged the Petitioner's plans for future hires, but 
observed that only the position of business development manager was filled at the time of filing. The 
Director instructed the Petitioner to provide clarifying evidence regarding its proposed staffing and 
the Beneficiary's proposed job duties and to establish that the proposed staffing arrangement would 
be sufficient to relieve the Beneficiary from having to primarily perform non-executive job duties. 
In response, the Petitioner did not address the discrepancy between the business plan and its supporting 
cover letter and instead provided a second cover letter reiterating the initial claim that the Beneficiary 
will oversee five subordinates by the end of its first year of operation. The new cover letter includes 
the same organizational chart as in the original and also contains job descriptions for the positions the 
Petitioner seeks to fill during its first year of operation. According to the monthly action plan that was 
included in the latter cover letter, which discusses projected actions over the course of the first 12 
months of the Beneficiary's employment, the Petitioner does not plan to hire employees until the 
Beneficiary arrives to the United States to assume his position as CEO. Namely, the plan states that 
during his first month of employment the Beneficiary, together with the business development 
manager, will select candidates to fill the positions of sales manager, sales representative, and two 
part-time customer service representatives. The new cover letter also reiterated the Beneficiary's 
original job description and qualifications, but did not explain how the Petitioner would relieve the 
Beneficiary from having to primarily perform its operational tasks upon his initial arrival. The 
Petitioner provided a separate letter discussing its current negotiation for the purchase of a "controlling 
stake" in another entity. 
In the denial decision, the Director observed that the Petitioner has not acted on the projected activities 
discussed in its business plan, noting that a support staff has not been hired and that the Petitioner's 
2018 quarterly wage report shows only one employee. The Director also acknowledged the 
Petitioner's submission of a pay stub for one other individual, but found that the Petitioner had not 
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Matter of T-E-Z- LLC 
submitted evidence demonstrating that this individual works for its organization. The Director 
determined that the Petitioner did not establish that its organization is adequately staffed to support 
the Beneficiary in an executive position. 
On appeal, the Petitioner describes setbacks it has experienced in acquiring and renovating office 
space; it claims that the Beneficiary managed the renovations for the new office space and that he will 
"handle daily operations and staff management" once he assumes his proposed position as CEO. 
B. Analysis 
We find that the Petitioner has not established that it had the ability to support the Beneficiary in an 
executive position based on the circumstances that existed at the time of filing. The Petitioner must 
establish that all eligibility requirements for the immigration benefit have been satisfied from the time 
of the filing and continuing through adjudication. 8 C.F .R. § 103 .2(b )(1 ). 
Although the Petitioner provided a job duty breakdown for the Beneficiary and a proposed subordinate 
staff, we cannot overlook the fact that it claimed "0" employees at the time of filing. Despite providing 
an inconsistent organizational chart listing the company's claimed owner as the Beneficiary's only 
subordinate, the Petitioner did not explain how a support staff comprised of only one employee would 
be sufficient to relieve the Beneficiary from performing primarily non-executive duties in his proposed 
position. Moreover, the organizational chart is inconsistent with the petition form, which indicates 
"0" employees at the time of filing. The Petitioner must resolve this inconsistency in the record with 
independent, objective evidence pointing to where the truth lies. Matter of Ho, 19 I&NDec. 582, 591-
92 (BIA 1988). Despite plans to hire additional staff in the future, the record indicates that the 
Petitioner had no more than one employee - the Petitioner's claimed owner - at the time this petition 
was filed; this leads us to question the Petitioner's ability to relieve the Beneficiary from having to 
carry out the organization's operational tasks. By statute, eligibility for this classification requires that 
the duties of the proposed position be "primarily" executive in nature. Section 10l(A)(44)(B) of the 
Act. An employee who "primarily" performs the tasks necessary to produce a product or to provide 
services is not considered to be "primarily" employed in an executive capacity. See, e.g., section 
10l(a)(44)(B) of the Act (requiring that one "primarily" perform the enumerated executive duties); 
Matter of Church Scientology Int'l, 19 I&N Dec. 593, 604 (Comm'r 1988). 
The fact that the Petitioner did not intend to hire a support staff until after the Beneficiary assumes his 
proposed position indicates that the Petitioner had no means to relieve the Beneficiary from having to 
perform the critical operational tasks that would ensure the organization's ability to develop and 
conduct business. The Beneficiary's discretionary authority over the Petitioner's staffing and business 
matters does not necessarily establish eligibility for classification as an intracompany transferee in an 
executive capacity within the meaning of section 10l(a)(44)(B) of the Act. 
As noted earlier, the Petitioner must establish that all eligibility requirements for the immigration 
benefit have been satisfied from the time of the filing and continuing through adjudication. 8 C.F.R. 
§ 103 .2(b )(1 ). The Petitioner in this instance provided supporting evidence showing that it would 
acquire staff gradually during its first year of operation and that it would operate as a new office, even 
though it did not indicate in the petition form that the Beneficiary is coming to the United States to 
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Matter of T-E-Z- LLC 
open or be employed in a new office. 1 We note, however, that the Petitioner was inconsistent in its 
hiring plan. Despite providing an organizational chart in two separate cover letters indicating that it 
planned to hire a sales representative during its first year of operation, the Petitioner provided 
inconsistent information in its business plan, which states that a sales representative would not be hired 
until the Petitioner's third year of operation. The Petitioner has not provided evidence to reconcile 
this inconsistency. See Ho, 19 I&N Dec. at 591-92. 
In any event, the Petitioner has not provided evidence to show that it was adequately staffed at the 
time this petition was filed. It is therefore unclear who, other than the Petitioner's claimed owner, was 
available to assist with the organization's operational job duties at the time of filing or who, other than 
the Beneficiary and the claimed owner, would be available to carry out those duties if the Beneficiary 
were to assume his position as CEO. Although we acknowledge the job descriptions the Petitioner 
submitted in response to the RFE, the fact that the Beneficiary would assume a position with an entity 
that claimed "O" support staff at the time of filing indicates that those job descriptions were not 
applicable to the Petitioner at the time of filing, but rather were prospective and would apply only after 
the Petitioner hires staff to carry out its operational and administrative tasks. 
Despite the Petitioner's emphasis on the Beneficiary's position title and discretionary authority, we 
cannot solely focus on these elements without adequately considering the lack of employees who 
would relieve the Beneficiary from having to carry out the operational tasks of the organization. The 
Petitioner neglected to properly consider that this deficient staffing structure would adversely affect 
the Beneficiary's position, as it would require him to perform primarily non-executive job duties in 
order to ensure the organization's continued operation. The Petitioner cannot effectively demonstrate 
that the Beneficiary would be employed in an executive capacity when, at best, the company's claimed 
owner was the only employee who could support the Beneficiary in his proposed position at the time 
of filing. The Petitioner must support its assertions with relevant, probative, and credible 
evidence. See Matter ofChawathe, 25 I&N Dec. 369, 376 (AAO 2010). 
On appeal, the Petitioner does not address its deficient staffing structure or resolve the previously 
noted discrepancies; instead it focuses on the added expense and "logistics challenges" that resulted 
from the untimely termination of its business lease. The Petitioner also continues to focus on its 
projected future success and anticipated expansion, meanwhile overlooking the regulatory criteria 
requiring it to demonstrate eligibility based on the facts and circumstances that existed at the time of 
filing. As discussed above, the record indicates that the Petitioner did not have the capacity to relieve 
the Beneficiary from having to allocate his time primarily to non-executive job duties at the time of 
filing. 
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(l)(l)(ii)(F). Although the Director cited regulatory criteria that applies to "new office" petitioners, we 
note that the Petitioner checked the box "No" when asked if the Beneficiary is coming to the United States to open a "new 
office" in Section I, No. 12 of the Form 1-129 L Classification Supplement. Therefore, even if the facts in this matter 
indicate that the Petitioner may qualify as a new office under the relevant regulatory provisions, the Petitioner did not seek 
treatment as a new office at the time of filing and therefore does not warrant treatment under the new office regulations. 
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Matter of T-E-Z- LLC 
III. REMAINING ISSUES 
In addition, although not addressed in the Director's decision, we find that the Petitioner has not 
provided sufficient evidence to establish that it has a qualifying relationship with the Beneficiary's 
foreign employer. 
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 Petitioner must support its assertions with 
relevant, probative, and credible evidence. See Chawathe, 25 I&N Dec. at 376. 
In the present matter, the Petitioner claims that it and the Beneficiary's foreign employer have an 
affiliate relationship by virtue of being majority owned by the same individual. 8 C.F.R. 
§ 214.2(1)(l)(ii)(L). 
Regulation and case law confirm that ownership and control are the factors that must be examined in 
determining whether a qualifying relationship exists between United States and foreign entities. See, 
e.g., Church Scientology Int'l, 19 I&N Dec. 593; Matter of Siemens Med Sys., Inc., 19 I&N Dec. 362 
(Comm'r 1986); Matter of Hughes, 18 I&N Dec. 289 (Comm'r 1982). Ownership refers to the direct 
or indirect legal right of possession of the assets of an entity with full power and authority to control; 
control means the direct or indirect legal right and authority to direct the establishment, management, 
and operations of an entity. Matter of Church Scientology Int'l, 19 I&N Dec. at 595. 
We find, however, that the record lacks sufficient evidence to establish the Petitioner's ownership. 
Although the Petitioner repeatedly refers to as its sole owner, it does not provide objective 
evidence, such as stock purchase agreements, subscription agreements, corporate by-laws, minutes of 
relevant shareholder meetings, or other legal documents governing the acquisition of the ownership 
interest, to support its ownership claim. As noted earlier, the Petitioner must provide relevant, 
probative, and credible evidence to support its assertions. See Chawathe, 25 I&N Dec. at 376. 
Based on the dispositive effect of our findings regarding the Beneficiary's proposed employment in 
an executive capacity and the lack of sufficient evidence establishing that a qualifying relationship 
exists between the Petitioner and the foreign entity, the appeal will be dismissed and we will reserve 
the issue regarding the Beneficiary's employment abroad in an executive capacity. 
IV. CONCLUSION 
The appeal will be dismissed for the above stated reasons, with each considered an independent and 
alternative basis for the decision. In visa petition proceedings, it is the petitioner ' s burden to establish 
eligibility for the immigration benefit sought. Section 291 of the Act, 8 U.S.C. § 1361. The Petitioner 
has not met that burden. 
Matter of T-E-Z- LLC 
ORDER: The appeal is dismissed. 
Cite as Matter ofT-E-Z-LLC, ID# 2878496 (AAO Apr. 4, 2019)