dismissed L-1A Case: Garden Decorations Manufacturing

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U.S. Citizenship 
and Immigration 
Services 
MATTER OF A-4USA LLC 
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Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: FEB. 19, 2019 
APPEAL OF CALIFORNIA SERVICE CENTER DECISION 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, which intends to manufacture and sell concrete sculpted garden decorations, seeks to 
temporarily employ the Beneficiary as general manager of its new office I under the L-1 A 
nonimmigrant classification for intracompany transferees. 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: (1) it had secured sufficient physical premises to house its new 
office; (2) the Petitioner's foreign affiliate, a medical laser distributor, employed the Beneficiary in a 
managerial or executive capacity; and (3) the new ofiice would support the Beneficiary m a 
managerial or executive position within one year of the petition's approval. 
On appeal, the Petitioner disputes · the Director's findings and points to previously submitted 
evidence in an effort to overcome the denial. 
Upon de nova review, we find that the Petitioner has not established that the new office would 
support the Beneficiary in a managerial or executive position within one year of the petition's 
approval. Therefore, we will dismiss the appeal. Because of the dispositive effect of this finding 
and an additional issue that surfaced in our review of the record, we will reserve the two remaining 
issues. 
I. LEGAL FRAMEWORK 
To establish eligibility for the L-1 A nonimmigrant visa classification in a petition involving a new 
c:,ffice, 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 
1 The tern:i "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). The regulation at 8 C.F.R. * 214.2(1)(3)(v)(C) allows a "new office" operation no 
more than one year within the date of approval of the petition to support an executive or managerial position. 
Matter of A-4USA LLC 
admission into the United States. 8 C.F.R. § 2 l 4.2(1)(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. 
The petitioner must submit evidence to demonstrate that the new office will be able to support a 
managerial or executive position within one year. This evidence must establish that the petitioner 
secured sufficient physical premises to house its operation and disclose the proposed nature and 
scope of the entity, its organizational, structure, its financial goals, and the size of the U.S. 
investment. See generally, 8 C.F.R. § 214.2(1)(3)(v). 
II. U.S. EMPLOYMENT IN A MANAGERIAL OR EXECUTIVE CAPACITY 
The primary issue to be addressed in this decision is whether the Petitioner established that the new 
·office would support a managerial or executive position within one year of approval of the petition. 
In the case of a new office petition, we review a beneficiary's proposed job duties as well as the 
petitioner's business and hiring plans and evidence that the business will grow sufficiently to support 
a beneficiary in the intended managerial or executive capacity. A petitioner has the burden to 
establish that it would realistically develop to the point where it would require the beneficiary to 
perform duties that are primarily managerial or executive in nature within one year. Accordingly, 
the totality of the evidence must be considered in analyzing whether the proposed managerial or 
executive position is plausible considering a petitioner's anticipated staffing levels and stage of 
development within a one-year period. See-8 C.F.R. § 214.2(1)(3)(v)(C). · · 
A. _Duties 
The Petitioner indicates that it will operate as a retailer and wholesaler of sculpted garden and house 
decorations. It states that it will manufacture its own products and use "a variety of materials" not 
used by other manufacturers. Although the Petitioner claims that this distinction will be 
advantageous in developing its customer base, it does not clarify how its materials differ.from those 
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of other maqufacturers of garden and home decorations. · 
In support of the petition, the Petitioner provided a prospective. organizational chart depicting the 
Beneficiary at the top of the hierarchy overseeing a commercial director and a production manager 
during its first year of operation; it showed plans to open a second branch during its second year of 
operation and therefore included a branch manager as part of his subordinate staff. The Petitioner 
also provided a description of the Beneficiary's proposed job duties as general manager stating that 
he will plan strategies and make business decisions, manage finances, research the market and 
develop sales goals and business.plans, oversee managerial employees and hire staff, and set quality 
standards to address customers' feedback and needs. The Petitidner did not indicate that the 
Beneficiary's. duties during its "new office" phase of operation would be different from those he 
would perform during· the company's second year of operation; rather, it indicated that the 
Beneficiary would perform these duties from 2018 to 2020. The Petitioner did not further address 
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Matter ofA-4USA LLC 
the Beneficiary's job duties either in its response to the Director's request for evidence (RFE) or on 
appeal, which focuses on the Petitioner's financial projections and earning potential. 
We find that the Petitioner· provided a deficient job description that is so general that it could 
describe virtually any executive or senior management position with any company. It provides only 
vague information that focuses on the Beneficiary's discretionary authority, but says little about the 
actual tasks,he would perform during the various stages of the company's development and makes 
no distinction between tasks that the Beneficiary would need to perform during the Petitioner's 
rudimentary phase and those he intends to perform once the company is no longer in the "new 
office" stage of development. Specifics are clear,ly an important indication of whether a 
beneficiary's duties are primarily executive or managerial in nature, otherwise meeting the 
definitions would simply be a matter of reiterating the regulations. , Fedin Bros. Co., Ltd. v. Sava, 
724 F. Supp. 1103, 1108 (E.D.N.Y. 1989), aff'd, 905 F.2d 41 (2d. Cir. 1990). Although it is 
reasonable to conclude that the Beneficiary's duties would change to correspond with the 
Petitioner's operational development and changing needs, the Petitioner did not provide a job 
description that reflects this likely progression. Without a detailed iteration of the Beneficiary's job 
duties during the Petitioner's first year of operation, it is unclear how the Petitioner would progress 
beyond the "new office" phase. 
) 
We acknowledge that the Beneficiary would assume a position as the Petitioner's senior employee 
and that as a result, he would have authority to establish plans, policies, and objectives for the 
company and make major decisions regarding its finances and overall direction. However, the 
Petitioner has not established that these types of responsibilities would primarily occupy the 
Beneficiary's time within one year. By statute, eligibility for this classification requires that the 
duties of a position be "primarily" executive or managerial in nature. Sections 101 (A)( 44)(A) and 
(B) of the Act. Therefore, even though the Beneficiary may exercise discretion over the Petitioner's 
day-to-day operations, a broad overview of his responsibilities is insufficient to establish that his 
actual duties during the Petitioner's first year of operation would lead to primarily managerial or 
executive duties within one year of this petition's approval. 
B. Projected Staffing and Business Plan 
If staffing levels are used as a factor in determining whether an individual will be acting in a 
managerial or executive capacity, U.S. Citizenship and Immigration Services (USCIS) takes into 
account the reasonable needs of the organization, in light of the overall purpose and stage of 
development of the organization. See section 101 (a)( 44 )(C) of the Act. 
The Petitioner's business plan indicates that it intends ''to be well established within the ·first two 
years"; it states that its operating goals for the first year of operation · include developing 
relationships with local retailers, bu_ilding "a team of specialists," and achieving at least $700,000 in 
.gross sales. The Petitioner also pi;ovided a business plan that included· a profit and loss projections 
chart showing expected gross earnings of $706,139 and a net profit of approximately $190,000 after 
subtracting approximately $141,000 for cost of goods and $375,000 for total operating expenses 
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Matter of A-4USA LLC 
during its first year of operation. The business plan also includes a best and worst case earnings 
. scenario showing $59,536 in monthly earnings as the best case scenario and $29,768 as the worst 
case scenario. We note that neither scenario is consistent with the above gross earnings projection. 
The Petitioner also included a personnel plan indicating that iri addition to hiring the Beneficiary, it 
would also hire a commercial director, a sales manager, an advertising specialist, an artist, a caster, a 
sculptor, and a driver during 'its first year of operation; it indicated that it would incur $297,000 in 
payroll expenses. · 
The Petitioner also provided a bank statement from March 2018 showing a balance of $113,000 in 
its business market account, which included a $10,000 deposit from the Beneficiary and a $55,000 
deposit from an unknown source .. Although the Petitioner claimed that the Beneficiary invested 
$75,000 into the Petitioner's account, it did not substantiate this claim with evidence of a deposit or 
/ . fund transfer. It is therefore unclear who funded the Petitioner's start-up expenses. 
In response to an RFE, the Petitioner provided additional expense and revenue projections that were 
not entirely consistent with its initial submissions. For instance, the new payroll calculation did not 
include a sales manager in the list of proposed first-year hires.· Although this was reflected in the 
decreased projection in payroll expenses, the Petitioner did not explain the reason for the change or 
state who would be responsible for selling the Petitioner's merchandise in the absence of a sales­
based employee. The Petitioner also provided a new set of best and worst case scenarios that do not 
match those initially submitted. The new projections indicate that the best case scenario will range 
from $29,768 in the Petitioner's first month of operation rising steadily to reach a projected $69,408 
in its 12th month of operation. Likewise, the new worst case scenario projections range from 
$14,884 in the first month of operation and reaching a projected $34,704 in its 12th month. The 
Petitioner did not explain the factors that accounted for these different projections. 
In light of the Petitioner's uncertain earning potential as a new office, it is reasonable to review the 
amount of the U.S. investment and the fore}gn entity's financial ability to pay the Beneficiary and 
commence doing business. 8_ C.F.R. § 214.2(1)(3)(v)(C)(2). The Petitioner must. support its 
assertions with relevant, probative, and credible evidence. See Maller of Chawathe, 25 I&N Dec. 
369, 376 (AAO 2010). As indicated above, the Petitioner has not provided evidence to substantiate 
the claim that the Beneficiary has invested $75,000 towards its start-up and payroll expenses, nor has 
it established the amount of the U.S. investment, despite its bank account balance in March 2018. 
Although the original projections estimated approximately $141,000 as the cost of goods sold, the 
new projections indicate that the cost will be approximately $96,000 - a difference of $45,000. The 
new breakdown of expenses also includes $5000. in gas, which was not included in the original 
breakdown of expenses. These inconsistencies preclude usr from ga1,1ging the total amount of 
operating expenses the Petitioner expects to incur during its first year of operation; they also lead us 
to question the validity of the Petitioner's hiring projections and the likelihood that h will progress 
beyond a rudimentary phase of development. 
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Matter of A-4USA LLC 1 
Although it appears that the Petitioner expects to hire a commercial director and production manager 
to assist the Beneficiary, it is not clear how it plans to meet its sales goals without the assistance of 
any sales personnel. As noted above, the business plan that was submitted in response to the RFE is 
inconsistent with the Petitioner's initial hiring projection, which indicates that a sales manager would 
be hired during its first year of operation. Moreover, it is unclear what the Beneficiary will be doing 
at any stage of the Petitioner's operation, nor does the record establish that he will primarily 
supervise a subordinate staff of professional, managerial, or supervisory personnel within one year. 
See section 101(a)(44)(A)(ii) of the Act. 
In sum, the Petitioner also has not shown that it will attain the scope of operations needed to support 
the Beneficiary in an executive role where he would reasonably be required to focus on the broad 
goals and policies of the company within 12 months. The Petitioner has consistently stated that the 
Beneficiary will occupy the most senior position in the. new office, but has not submitted a job 
description or supporting evidence sufficient to demonstrate that he would primarily engage in 
managerial or executive duties, or that the new office would support a managerial or executive 
position, after the initia.l year of operations. 
III. QUALIFYING RELATIONSHIP 
Finally, while not previously 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 101(a)(15)(L) of the Act; 8 C.F.R. § 214.2(1). 
The Petitioner claims that it and the Beneficiary's foreign employer are affiliates because both are 
owned by the Beneficiary. As noted earlier, the Petitioner must support its assertions with rele';ant, 
probative, and credible evidence. See Chawathe, 25 I&N Dec. at 376. Although the Petitioner has 
provided evidence of the Beneficiary's ownership of its stock, the same cannot be said of the foreign 
entity, wh?se ownership is based entirely on the third party statement of the foreign entity's 
accountant. The . Petitioner provided no stock certificates, stock ledger, or other corporate 
documentation establishing that the Beneficiary owns the foreign entity's stock as claimed. 
IV. CONCLUSION 
· The Petitioner has not established that it would employ the Beneficiary in a managerial or executive 
capacity within one year or that it has a qualifying relationship with the Beneficiary's foreign 
employer. As these elements are fundamental to establishing eligibility and the .Petitioner has not 
met these requirements, we will not address the remaining grounds that the Director cited in the 
denial decision. 
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·Matter of A-4USA LLC 
ORDER: The appeal is dismissed. 
Cite as Matter of A-4USA LLC, ID# 2060746 (AAO Feb. 19, 2019) 
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