dismissed L-1A Case: Floor Cleaning Service

U.S. Citizenship 
and Immigration 
Services 
In Re: 10994441 
Appeal of California Service Center Decision 
Form 1-129, Petition for L-lA Manager or Executive 
Non-Precedent Decision of the 
Administrative Appeals Office 
The Petitioner, a floor cleaning service, seeks to seeks to continue the Beneficiary's temporary employment 
as its managing director under the L-lA nonimmigrant classification for intracompany transferees. 1 
Immigration and Nationality Act (the Act) section 101(a)(15)(L), 8 U.S.C. § 1101(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) the Beneficiary has been employed abroad in a managerial or executive 
capacity; and (2) the Beneficiary will be employed in the United States in a managerial or executive 
capacity. The Director then granted the Petitioner's motion to reopen and reconsider, and issued a new 
decision, citing only the second ground for denial. 
In these proceedings, it is the Petitioner's burden to establish eligibility for the requested benefit. See 
Section 291 of the Act, 8 U.S.C. § 1361. Upon de nova review, we will dismiss the appeal. 
I. LAW
To establish eligibility for the L-lA nonimmigrant visa classification, a qualifying organization must 
have employed the beneficiary 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(I)(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.
1 A "new office" is an organization that has been doing business in the United States through a parent, branch, affiliate, or 
subsidiary for less than one year. 8 C.F.R. § 214.2(I)(1)(ii)(F). The regulation at 8 C.F.R. § 214.2(I)(3)(v)(C) allows a 
"new office" operation one year within the date of approval of the petition to support an executive or managerial position. 
The Petitioner initially filed a "new office" petition in January 2016. The approval of that petition granted the Beneficiary 
L-lA status from April 14, 2016, until April 13, 2017. The Petitioner filed a petition on April 11, 2017, seeking a second
year as a new office, but that petition was denied. While an appeal was pending, the Petitioner filed the present petition.
A petitioner seeking to extend an L-1A petition that involved a new office must submit a statement of 
the beneficiary's duties during the previous year and under the extended petition; a statement 
describing the staffing of the new operation and evidence of the numbers and types of positions held; 
evidence of its financial status; evidence that it has been doing business for the previous year; and 
evidence that it maintains a qualifying relationship with the beneficiary's foreign employer. 8 C.F.R. 
§ 214.2(I)(14)(ii). 
II. EMPLOYMENT IN A MANAGERIAL OR EXECUTIVE CAPACITY 
The Director determined that the Petitioner did not establish that it will employ the Beneficiary in a 
managerial or executive capacity. The Petitioner refers to the Beneficiary's position as both a 
managerial and an executive capacity, but states: "Given the newness and size of [the petitioning 
entity], the Managing Director functions both as its general manager and as its chief executive .... 
[The executive] duties, however, are few and sporadic." Because the Petitioner has essentially 
acknowledged that the Beneficiary's duties are not primarily executive, we will focus on the 
requirements of a managerial capacity. 
"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. 
To be eligible for L-1A nonimmigrant visa classification as a manager, a petitioner must show that the 
beneficiary will perform all four of the high-level responsibilities set forth in the statutory definition 
at section 101(a)(44)(A) of the Act. If a petitioner establishes that the offered position meets all four 
elements set forth in the statutory definition, the petitioner must then prove that the beneficiary will 
be primarily engaged in managerial 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). In 
determining whether the beneficiary's duties will be primarily managerial, we consider the description 
of the job duties, 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 the business. 
The Petitioner has consistently claimed that the Beneficiary is, and will remain, the highest-ranking 
individual at the petitioning U.S. entity, with the authority to control its activities and direct the 
activities of individuals working for that entity. But the Petitioner has not established that the 
Beneficiary was in a position to serve in a primarily managerial capacity at the time of filing. 
On the petition form, asked if the Beneficiary's position will be full-time, the Petitioner answered "yes." 
On the same form, the Petitioner provided a brief summary of the Beneficiary's duties, stating that he 
"will hire & fire staff, set work schedules and assignments ... , do performance reviews with team 
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supervisors and ... oversee all administrative, advertising, legal and financial aspects of [the] company." 
The Petitioner did not specify to whom the Beneficiary delegated "administrative, advertising, legal and 
financial" tasks. The Petitioner described an organizational structure in which the Beneficiary directly 
oversaw two supervisors or team leaders, each of whom oversaw two workers. All these subordinates 
were part-time contractors rather than employees. 
Later in the proceeding, the Petitioner has changed its organizational structure, adding another team 
leader and promoting one of the team leaders to a newly created "operation supervisor" position, with 
oversight over the team leaders. This enlarged structure did not exist when the Petitioner filed the 
petition in April 2018. The Petitioner has also submitted revised and expanded job descriptions for 
the Beneficiary. These job descriptions make specific reference to delegation of tasks to the operation 
supervisor, a position that did not exist at the time of filing. 
The Petitioner must meet all eligibility requirements at the time of filing the petition. 8 C.F.R. 
§ 103.2(b)(1). A petitioner must establish that the position offered to a beneficiary, when the petition 
was filed, merits classification as a managerial or executive position. See Matter of Michelin Tire 
Corp., 17 l&N Dec. 248, 249 (Reg'I Comm'r 1978). A petitioner may not make material changes to 
a petition in an effort to make a deficient petition conform to USCIS requirements. See Matter of 
lzummi, 22 l&N Dec. 169, 176 (Assoc. Comm'r 1998). 
For the above reasons, we will not consider post-filing job descriptions built around an organizational 
structure that was not in place at the time of filing. On appeal, the Petitioner asserts that its 
organizational structure at the time of filing supported a managerial position, but the Petitioner pairs 
this structure with a more recent job description. That description lists a number of non-qualifying 
tasks said to be delegated to the operation supervisor, without showing who was responsible for those 
tasks at a time when the company did not employ an operation supervisor. Because this job description 
is contingent on conditions that did not exist at the time of filing, we cannot conclude that it accurately 
reflected the Beneficiary's duties at the time of filing. 
Also, although the Petitioner initially specified that the Beneficiary would work full-time, the Petitioner 
later stated, in response to a request for evidence, that the Beneficiary's position "is not always a full time 
job." Later still, on motion, the Petitioner asserted that, "because [the Petitioner] is a small and still 
developing company, the position of the Managing Director is part time." This repeated downward 
revision of the Beneficiary's schedule, even as the company grew more complex and arguably should 
have demanded more of his time, raises questions about the credibility and consistency of the Petitioner's 
(largely unsubstantiated) initial assertions regarding the nature of the Beneficiary's work. 
The Director also found that the Petitioner had not established that it employs the Beneficiary; prior 
payroll documents do not name the Beneficiary. The Beneficiary appears to be employed within the 
overall organization, but here, as elsewhere, there are questions of consistency. On appeal, the 
Petitioner cites an operating agreement stating that the Beneficiary "will be paid a guaranteed salary 
... of $25,000.00 per year." This figure conflicts with the petition form, which specified "a base 
salary of $20,000.00 per year." 
Also, that operating agreement indicates that the foreign parent company, not the Petitioner, would 
pay the $25,000 salary. Such an arrangement is acceptable for a U.S. company's first year as a new 
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office. See 8 C.F.R. § 214.2(1)(3)(v)(C)(2). The Petitioner's status as a new office, which was granted 
based on plans and projections from which the Petitioner later substantially deviated, elapsed in April 
2017. (We have not accepted the Petitioner's claim that it is entitled to a second full year as a "new 
office.") An extension petition following the new office period must establish the U.S. employer's 
financial status. 8 C.F.R. § 214.2(1)(14)(ii)(E). Tax documents in the record show that the Petitioner's 
net income in 2017 (the last full year before the filing date) was below the $25,000 figure cited on 
appeal. 
The Beneficiary also receives distributions from the Petitioner's income, but he is entitled to these 
distributions as a member of the limited liability company, rather than as an employee. {The foreign 
company also receives such distributions, but is not employed by the U.S. company.) 
The record includes inconsistent descriptions of the Beneficiary's duties, work hours, and compensation. 
This lack of consistency precludes a determination that the Petitioner has met its burden of proof. 
Furthermore, it is significant that the Petitioner filed this petition as an extension petition, contingent on 
the approval of an earlier petition that has been denied, and its appeal dismissed. The Petitioner 
acknowledges that the Beneficiary's "[l]ast L-1A status expired 4/13/2017," nearly a year before the 
Petitioner filed the present petition. At the time of filing in April 2018, the Beneficiary had no valid 
nonimmigrant status to extend. An extension of stay cannot be granted when the beneficiary's 
nonimmigrant status expired before the petition was filed. 8 C.F.R. § 214.1(c)(4). 
111. CONCLUSION 
The appeal will be dismissed for the above stated reasons. 
ORDER: The appeal is dismissed. 
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