dismissed L-1A Case: Import And Export

U.S. Citizenship 
and Immigration 
Services 
MATTER OF E-G-, INC. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: FEB. 28,2018 
APPEAL OF CALIFORNIA SERVICE CENTER DECISION 
PETITION: FORM 1-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, an import and export company, seeks to temporarily employ the Beneficiary as 
general manager of its new office under the L-1 A nonimmigrant classification for intracompany 
transferees. See Immigration and Nationality Act (the Act) section 101(a)(15)(L), 8 U.S.C. 
§ 1101(a)(15)(L). The L-1A 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 for at least one continuous year during the three years preceding the filing of the 
petition; (2) the Petitioner has a qualifying relationship with the Beneficiary's foreign employer; and 
(3) the new office will support a managerial or executive capacity within one year after approval of 
the petition. 
The matter is now before us on appeal. On appeal, the Petitioner submits additional evidence and 
asserts that the Director erred by making unwarranted assumptions and by disregarding evidence of 
eligibility. 
Upon de novo review, we will dismiss the appeal. 
I. LEGAL FRAMEWORK 
To establish eligibility for the L-1 A 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 101(a)(15)(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. !d. 
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Mauer of E-G-, Inc. 
II. PRIOR EMPLOYMENT ABROAD 
The Director found that the Beneficiary had not met the "one-in-three" requirement of at least one 
continuous year of qualifying employment during the three years preceding the filing of the petition. 
On appeal, the Petitioner contends that the Director relied upon inaccurate information and 
disregarded rebuttal evidence that the Petitioner had submitted. 
We find that, although the Director relied upon flawed evidence, the Director did arrive at the correct 
conclusion by finding that the Beneficiary lacked the required 
experience. 
The Petitioner claims that the Beneficiary meets the experience requirement through her 
employment as finance manager of from December 2007 to January 2010, 
prior to her entry into the United States in February 2010. The Director doubted this claim, citing 
evidence that appeared to indicate that the Beneficiary was in the United States from 2004 until 
October 2009. 
By submitting a credible explanation supported by independent evidence, the Petitioner has refuted 
this finding and established, by a preponderance of the evidence, that she was outside the United 
States during the period claimed. This evidence, however, does not show that the Beneficiary meets 
the one-in-three requirement. 
The regulation at 8 C.F.R. § 214.2(1)(3)(iii) requires "at least one continuous year of full-time 
employment abroad with a qualifYing organization within the three years preceding the .filing of the 
petition " (emphasis added) . A beneficiary's lawful presence in the United States does not invariably 
suspend this three-year period. Rather , the regulations identify specific circumstances under which 
presence in the United States does not interrupt qualifying employment abroad: 
Periods spent in the United States in lawful status for a branch of the same employer 
or a parent, affiliate, or subsidiary thereof and brief trips to the United States for 
business or pleasure shall not be interruptive of the one year of continuous 
employment abroad but such periods shall not be counted towards fulfillment of that 
requirement. 
8 C.P.R. § 214.2(l)(l)(ii)(A). In this instance, from 2010 to 2017 the Beneficiary was not in the 
United States "for a branch of the same employer or a parent, affiliate, or subsidiary thereof. " 
Rather, she was in H-4 derivative status while her spouse was employed by an unrelated entity. 
Furthermore, a stay of more than seven years is not a "brieftrip." The Beneficiary's December 2016 
change of status from H-4 to B-1 did not reset the clock on the length of her stay or the continuity of 
her employment abroad. 
In an attempt to show that the Beneficiary's time in the United States does not disqualify her, the 
Petitioner cited 1994 correspondence from an official of what was then the Immigration and 
Naturalization Service. This correspondence, however, concerned a beneficiary who was employed 
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Matter of E-G-, Inc. 
by a qualifying entity m the United States, a circumstance contemplated by 8 C.F.R. 
§ 214.2(1)(1)(ii)(A). 
During the three years preceding the March 2017 filing of the petition, the Beneficiary was not 
employed by a qualifying organization either abroad or in the United States. The Beneficiary's long 
presence in the United States, in a status unrelated to qualifying employment, is disqualifying on its 
face and the petition cannot lawfully be approved. 
III. QUALIFYING RELATIONSHIP 
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 Director found that the 
Petitioner did not establish that it has a qualifying relationship with the Beneficiary's foreign 
employer. The Director based this finding not on any direct evidence, but on inferences drawn from 
the Petitioner's finances. 
The Petitioner claims to be "a wholly-owned subsidiary of ' The record 
documents the foreign entity's purchase of 100,000 shares of the petitioning company in exchange 
for a $1000 capital contribution. 
On November 7, 2016, two weeks after purchased its shares, the Petitioner 
received $75,000 from the From the size of this transaction, 
the Director concluded that the appeared to have purchased a controlling interest in 
the petitioning entity. On appeal, the Petitioner establishes that this payment was a loan against a 
line of credit. A trustee of the states that neither the trust nor anyone associated 
with it "have any ownership interest in [the petitioning entity] or otherwise exercise control over the 
company." Nothing in the record contradicts or casts doubt on this assertion. 
The transaction, identified as a loan and an extension of credit, does not show that the 
purchased shares of the petitioning entity. We withdraw the Director's finding that the 
Petitioner has not established a qualifying relationship with 
IV. NEW OFFICE 
If a petition indicates that the beneficiary is coming to the United States as a manager or executive to 
open or to be employed in a new office in the United States, the petitioner must submit evidence that 
the intended United States operation, within one year of the approval of the petition, will support an 
executive or managerial position. The petitioner must submit information regarding: (1) the 
proposed nature of the office describing the scope of the entity, its organizational structure, and its 
financial goals; (2) the size of the United States investment and the financial ability of the foreign 
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Matter of E-G-, Inc. 
entity to remunerate the beneficiary and to commence doing business in the United States; and (3) 
the organizational structure ofthe foreign entity. 8 C.F.R. § 214.2(1)(3)(v)(C). 
A. Managerial or Executive Capacity 
The petitioner in a new office petition must submit evidence to establish that the proposed 
employment involves executive or managerial authority over the new operation. 8 C.F.R. 
§ 214.2(1)(3)(v)(B). The position must be primarily managerial or executive within one year after 
approval ofthe petition. See 8 C.F.R. § 214.2(1)(3)(v)(C), (l)(ii)(B) and (C). 
The Director found that the Petitioner had not established that the Beneficiary's intended position 
will be managerial or executive. On appeal, the Petitioner asserts that the position will be 
managerial; we will therefore disregard the requirements for an executive capacity. 
A managerial capacity is an assignment within an organization in which the employee primarily 
manages the organization, or a department, subdivision, function, or component of the organization, 
and exercises discretion over the day-to-day operations of the activity or function for which the 
employee has authority. The statutory definition of "managerial capacity" allows for both 
"personnel managers" and "function managers." See sections 101(a)(44)(A)(i) and (ii) of the Act. A 
personnel manager supervises and controls the work of other supervisory, professional, or 
managerial employees; the duties of a first-line supervisor are not considered managerial unless the 
employees supervised are professional. A personnel manager must also have the authority to 
execute or recommend personnel actions such as hiring, firing, and promotions. A function manager 
need not directly supervise other employees, but must manage an essential function within the 
organization, or a department or subdivision of the organization, and function at a senior level within 
the organizational hierarchy or with respect to the function managed. Section 101(a)(44)(A) of the 
Act. 
The Director found that a majority (55%) of the Beneficiary's intended responsibilities do not reflect 
a managerial capacity. On appeal, the Petitioner asserts that the Director did not explain the basis 
for this finding. We agree that the Director did not sufficiently explain this basis for denial as 
required by 8 C.F.R. § 1 03.3(a)(l )(i). For this reason, we withdraw this particular finding, but the 
Petitioner has not met another key requirement relating to new office petitions. 
B. Financial Ability of the Foreign Entity 
A new office petition must include evidence establishing the size of the United States investment 
and the financial ability of the foreign entity to remunerate the beneficiary and to commence doing 
business in the United States. 8 C.F.R. § 214.2(1)(3)(v)(C)(2). 
The Petitioner's business plan anticipated $225,000 in startup expenses, plus $104,587 in salaries 
during the first year of operations. The Director concluded that, near the time of filing, the foreign 
entity's bank balance was "approximately 133,386GTQ which converts to roughly $18,184USD." 
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Matter of E-G-, Inc. 
The Petitioner also relies on a $300,000 line of credit from the as discussed earlier. 
The Director concluded that the available funds are not sufficient to cover the Petitioner's costs and 
remunerate the Beneficiary . The Director also found that the Petitioner's initial financial projections 
"do not appear to account for the cost of goods being acquired then shipped ." 
On appeal, the Petitioner does not dispute the figures cited by the Director, but asserts that 
"sufficient funding exists to pay the Beneficiary her salary and start doing business in the U.S." The 
Petitioner submits a projected profit and loss statement , anticipating the following first-year figures: 
Revenues 
Cost of Goods Sold 
Gross Profit 
Total Operating Expenses 
Net Profit 
$832,120 
580,592 
251 ,528 
184,375 
67,153 
The Petitioner did not say how it would raise the $580,592 necessary to pay for the cost of goods 
sold, or how soon during the first year that it would require that sum. 
The Petitioner emphasizes that it "secured a 
line of credit of up to $300,000 to cover startup costs of 
operation." The promissory note in the record shows that the made a loan directly 
to the Petitioner in the United States. A 
line of credit from an unrelated third party in the United 
States, making loans directly to the Petitioner , does not establish "the financial abilit y of the foreign 
entity to remunerate the beneficiary and to commence doing business in the United States." The 
regulations require the foreign entity to be financially responsible for the new office. In this case, 
the foreign entity has handed off this responsibility to an unrelated lender, in the form of an 
unsecured loan that places no obligation on the foreign entity. 
The Petitioner has not established the foreign entity ' s ability to remunerate the Beneficiary and to 
commence doing business in the United States. 
V. CONCLUSION 
Because the Beneficiary was in the United States from 201 0 to 20 1 7, and was not employed by a 
qualifying employer during that time, s he cannot meet the one-in-three employment requirement. 
Also, the Petitioner has not established the foreign entity' s ability to compensate the Beneficiar y and 
to commence doing business in the United States. 
ORDER: The appeal is dismissed. 
Cite as Matter of E-G-, Inc., ID# 879594 (AAO Feb. 28, 20 18) 
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