dismissed L-1A Case: Information Technology

.
U.S. Citizenship 
and Immigration 
Services 
MATTER OF A-US LLC 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: AUG. 31,2017 
APPEAL OF CALIFORNIA SERVICE CENTER DECISION 
PETITION: FORM 1-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a provider of IT services and solutions, claims to be a new office 1 and seeks to 
temporarily employ the Beneficiary as "Managing Director & Sr. Account Executive" under the 
L-1 A nonimmigrant classification for intracompany transferees. See Immigration and Nationality 
Act (the Act) section 10l(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 Petitioner did 
not establish, as required, that: (1) it has a qualifying relationship with the Beneficiary's employer 
abroad; (2) the Beneficiary was employed abroad in a managerial or executive capacity; (3) the 
Beneficiary's proposed position would be in a managerial or executive capacity within one year of 
the petition' approval; and (4) it secured sufficient physical premises to house its office. 
On appeal, the Petitioner submits a statement disputing the denial. The Petitioner asserts that its 
response to the request for evidence (RFE) properly addressed concerns regarding its qualifying 
relationship with the Beneficiary's employer abroad as well as the Beneficiary's former and 
proposed employment. Although the Petitioner stated that it would provide a supplemental legal 
brief within 30 days of filing the appeal, the record does not contain evidence of any further 
submissions. Therefore, we will consider the record complete as presently constituted. 
Upon de novo review, we will withdraw the Director's finding regarding the Petitioner's physical 
premises, which was based on an erroneous determination that the Petitioner did not provide 
requested information regarding the square footage of its office premises. We will also withdraw the 
Director's finding that the Petitioner's "new office" would not support a managerial or executive 
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(1)(1 )(ii)(F). Although the Petitioner stated on the Form 1-129, Petition for a Nonimmigrant 
Worker, and at other times in the record that it was established in 2016, the record shows that it was in fact established as 
a New York limited liability company in March 2015, and that it started doing business in the United States in 
September 2015 pursuant to a contract with Invoices show that the Petitioner began providing 
services to on a regular basis on September 14, 2015. Therefore, the Petitioner did not qualify as a 
new office as of October 19, 2016, when it filed the petition. 
Matter of A-US LLC 
position within one year. The Director's analysis of the Beneficiary's proposed position was based 
on a misapplication of regulatory requirements that pertain only to petitions involving new oftices. 
See 8 C.F.R. § 2142(1)(3)(v). In light of our finding that the Petitioner was not a new office at the 
time of filing, the facts presented should not have been assessed within the scope of these "new 
office" regulations. As the Director's analysis was flawed, the determination regarding the 
Beneficiary's U.S. employment must be withdrawn. However, the record as presently constituted 
does not establish that the Petitioner would employ the Beneficiary in a managerial or executive 
capacity as of the date of filing. The Petitioner would have to demonstrate that it meets this 
requirement if it pursues this matter further. 
Notwithstanding our withdrawal of two of the Director's findings, we find that the Petitioner has not 
submitted sufficient evidence to overcome the two remaining grounds for denial. We will therefore 
dismiss the appeal. 
I. LEGAL FRAMEWORK 
To establish eligibility for the L-lA nonimmigrant visa classification, a qualifying organization must 
have employed the beneficiary in a managerial or executive capacity, or in a position involving 
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. 
The regulation at 8 C.F.R. § 214,2(1)(3) states that an individual petition tiled on Form I-129, 
Petition for a Nonimmigrant Worker, must include evidence that the petitioner will employ the 
beneficiary in an executive or managerial capacity, including a detailed description of the services to 
be performed. The evidence must also show that the beneficiary has at least one continuous year of 
full-time employment abroad with a qualifying organization, in an executive or managerial capacity 
or a position involving specialized knowledge, within the three years preceding the filing of the 
petition. 
II. QUALIFYING RELATIONSHIP 
The first issue to be addressed in this decision is whether the Petitioner established that it has a 
qualifying relationship with the Beneficiary's employer abroad. 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 focused on the lack of evidence showing that the 
foreign entity made a capital contribution in exchange for a 5 I% ownership share of the Petitioner. 
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Matter of A- US LLC 
The Director also pointed to the Petitioner's inconsistent claims regarding its ownership. 
Specifically, the Director observed that in its initial support letter, the Petitioner claimed that 
the Beneficiary's employer in Pakistan, owns 51% of the U.S. entity and that the 
Beneficiary owns the remaining 49%, while the operating agreement lists the Beneficiary as directly 
owning 51% of the Petitioner with owning the remaining 49%. The Director also 
noted that the Beneficiary's fund contribution was not proportional to his claimed majority 
ownership when compared to the fund contribution of the claimed minority owner. On appeal, the 
Petitioner submits a letter contending that the creation of a qualifying relationship "is not dependent 
upon the financial contributions ofthe principals." 
While we agree with the Petitioner's assertion and find that the Petitioner provided sufficient 
evidence to document the Beneficiary's and monetary contributions towards their 
respective ownership interests, we find that the Petitioner has not provided sufficient evidence to 
show that it has a qualifying relationship with the Beneficiary's employer abroad. Despite the 
Petitioner's repeated statements that it is a subsidiary of the foreign entity, the Petitioner's operating 
agreement and evidence of fund contributions show that the Beneficiary, rather than the foreign 
entity, directly owns 51% of the Petitioner. The Petitioner's claim that the Beneficiary is also the 
majority owner of the foreign entity therefore indicates that the Petitioner's qualifying relationship 
claim is based on the definition of "affiliate" rather than the definition of "subsidiary." 
The term "affiliate" is defined in relevant part, as (1) one of two subsidiaries both of which are 
owned and controlled by the same parent or individual, or (2) one of two legal entities owned by the 
same group of individuals, each individual owning and controlling approximately the same share or 
proportion of each entity. 8 C.F.R. § 214.2(l)(l)(ii)(K). Accordingly, in order to establish that the 
ownership schemes of the Petitioner and the foreign entity are consistent with an affiliate 
relationship, the Petitioner would have to establish that the Beneficiary is the majority owner of the 
foreign entity. 
Although the Petitioner provided sufficient evidence to establish that the Beneficiary is more likely 
than not its majority owner, the same cannot be said of its evidence pertaining to ownership of the 
foreign entity. Despite submitting a supporting statement where the Petitioner named the 
Beneficiary as the sole owner of the foreign entity, the Petitioner's RFE response contains letters on 
the foreign entity's letterhead identifying alongside the Beneficiary as the 
entity's "Managing Director [and] Co-Founder." The RFE response also includes the foreign 
entity's corporate documents, which identified the Beneficiary and as "members" of the 
foreign entity. These documents contradict the Petitioner's claim that the Beneficiary is the sole 
owner of the foreign entity. The Petitioner has not submitted evidence to resolve these 
inconsistencies in the record with independent, objective evidence 
pointing to where the truth lies. 
Matter of Ho, 19 I&N Dec. 582, 591-92 (BIA 1988). 
As the Petitioner in this matter has not provided sufficient credible supporting evidence establishing 
who owns the foreign entity, we cannot conclude that the Petitioner has a qualifying relationship 
Matter of A-US LLC 
with the Beneficiary's employer abroad and on the basis of this finding, the instant petition cannot 
be approved. 
III. EMPLOYMENT ABROAD IN A MANAGERIAL OR EXECUTIVE CAPACITY 
The Director also found that the Petitioner did not establish that the Beneficiary was employed 
abroad in a managerial or executive capacity. 
The Act defines "managerial capacity" as 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 
s"Ubdivision 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) ofthe Act. 
The Act defines the term "executive capacity" as 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 101(a)(44)(B) ofthe Act. 
A. Duties 
When examining the managerial capacity of the Beneficiary, we will look first to the Petitioner's 
description of the job duties. The Petitioner's description of the job duties must clearly describe the 
duties performed by the Beneficiary and indicate whether such duties were in a managerial or 
executive capacity. See 8 C.F.R. § 214.2(1)(3)(ii). 
Based on the statutory definition of managerial 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). Second, the Petitioner must prove that the 
Beneficiary was 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); Champion World, 940 F.2d 1533. 
In support of the petition, the Petitioner provided a cover letter claiming that the foreign entity provides 
IT solutions services and that the Beneficiary's experience working abroad resulted in his acquiring 
"executive/managerial knowledge" in IT products and services. Although the Petitioner did not 
expressly state that the Beneficiary's position abroad was in a managerial capacity, it claimed that the 
Beneficiary's work involved overseeing professional personnel, which is an element of the statutory 
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Matter of A-US LLC 
definition of managerial capacity. Section 101(a)(44)(A)(ii) of the Act. The Petitioner stated that the 
Beneficiary, in his role as the foreign entity's managing director, has been "responsible for all 
aspects of sales, management, and business relationships" and "developed, presented, and managed 
the implementation of innovative business solutions." 
In response to the RFE, the Petitioner provided a statement claiming that the Beneficiary is 
responsible for the growth of the foreign entity in terms of profitability and market share. The 
statement indicates that the Beneficiary's other responsibilities include the following: holding daily 
meetings with the company's "senior management team" consisting of the "co-founder" of the 
foreign entity and two other employees; reviewing progress. indicators, such as the number of 
customers and profits; visiting "strategic customers" to gain an understanding of how to help meet 
their technical and business needs; evaluating and implementing new sales and marketing strategies 
based on the Beneficiary's evaluations ofthe company's finances; discussing sales opportunities and 
identifying new solution offerings; and meeting·with one of the senior team members to "find the 
right balance" of IT workers to increase profits and decrease costs. 
The same statement also listed various service delivery and client management duties, operational 
and functional duties, and technical duties that the Beneficiary shares with the foreign entity's "co­
founder." The statement did not state how much time the Beneficiary has allocated to each duty in 
these three categories or explain whether the Beneficiary and the "co-founder" evenly distributed 
their time among the various activities, particularly non-managerial activities, such as serving as 
"[l]ead interface" in account service issues, developing new services and solutions, managing vendor 
contracts, interfacing with other vendors experts and project managers, conducting new technology 
research, managing inventory, developing ' and network methods and 
procedures, developing and managing network services architectural plans, reviewing technical 
literature, and attending training seminars. It is unclear how much time the Beneficiary has allocated 
to these non-managerial duties. An employee who "primarily" performs the tasks necessary to 
produce a product or to provide services is not considered to be "primarily" employed in a 
managerial or executive capacity. See, e.g, sections 101(a)(44)(A) and (B) of the Act (requiring that 
one "primarily" perform the enumerated managerial or executive duties); Matter of Church 
Scientology lnt'l, 19 I&N Dec. 593,604 (Comm'r 1988). 
In denying the petition, the Director determined that the job description provided does not establish 
that the Beneficiary's employment abroad involved primarily managerial job duties.2 
As discussed above, we find that the Petitioner provided a deficient job description that did not 
establish that the Beneficiary's time during his employment abroad was primarily allocated to tasks 
of a managerial nature. Although the Petitioner appealed the denial, it did not specifically address 
the Director's adverse finding with regard to the Beneficiary's employment abroad. As noted 
earlier, despite stating its intent to provide a legal brief after filing the appeal, there is no evidence 
2 
The Director also made an adverse finding regarding the Beneficiary's employment abroad based on a review of 
information that is outside of the record. We hereby withdraw that finding. 
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Matter of A-US LLC 
that the Petitioner has supplemented the record with additional evidence or a legal brief. Therefore, 
the Petitioner has not overcome the Director's adverse finding. 
Likewise, based on the above analysis and our finding that the Petitioner provided a deficient job 
description, we similarly cannot conclude that the Beneficiary was employed abroad in an executive 
capacity. 
B. Staffing 
Beyond the required description of the job duties, U.S. Citizenship and Immigration Services 
reviews the totality of the evidence when examining a beneficiary's claimed managerial capacity, 
including the company's organizational structure, the duties of a beneficiary's subordinate 
employees, the presence of other employees to relieve a beneficiary from performing operational 
duties, the nature of the business, and any other factors that will contribute to understanding a 
beneficiary's actual duties and role in a business. 
The statutory 'definition of "managerial capacity" allows for both "personnel managers" and 
"function managers." See section 101(a)(44)(A)(i) and (ii) of the Act. Personnel managers are 
required to primarily supervise and control the work of other supervisory, professional, or 
managerial employees. Contrary to the common understanding of the word "manager," the statute 
plainly states that 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 I 0 I (a)( 44 )(A)(iv) of the Act. If a beneficiary directly supervises other 
employees, the beneficiary must also have the authority to hire and fire those employees, or 
recommend those actions, and take other personnel actions. 8 C.F.R. § 214.2(l)(l)(ii)(B)(J). 
In the present matter, the Petitioner's initial supporting evidence included the foreign entity's 
organizational chart, which depicted the Beneficiary and as managing directors 
placed at the top level within the hierarchy. Despite depicting a second staffing tier consisting of 
four positions - a sales and marketing position, a professional services position, a resource 
management position, and a finance and operations position - the chart depicts the Beneficiary and 
in the respective positions of "resource management" and "finance and operations," 
thereby indicating that the Beneficiary and are part of the "senior management team" 
that the Beneficiary is claimed to oversee. The Petitioner did not discuss or elaborate on this 
ambiguity, nor did it explain which of the Beneficiary's listed duties were performed in his capacity 
as resource manager and which were performed in his capacity as managing director. 
We also note that the entire "senior management team," excluding the Beneficiary and 
effectively consisted of two people - a sales and marketing employee and a professional services 
employee. Although the foreign entity's organizational chart depicts the professional services 
employee as a supervisor or manager overseeing two employees, the Petitioner did not clarify how 
the Beneficiary and distributed the oversight of their two shared subordinates. At most, 
it appears that the Beneficiary may have shared supervisory responsibility over one supervisory 
Matter of A-US LLC 
employee. The remainder of the chart depicts two software engineers subordinate to the professional 
services employee. In light of this organizational structure, the Petitioner's earlier reference to a 
"senior management team" is unclear and appears to be an inaccurate portrayal of the foreign 
entity's organizational complexity. 
Although the Petitioner's RFE response included employee job descriptions, which indicated that the 
sales and marketing employee led a sales team, the organizational chart does not indicate that the 
foreign entity had such a team in place at the time of the Beneficiary's employment, thus indicating 
that the sales and marketing employee performed all sales and marketing functions of the 
organization. We further note that the record lacks evidence to show that the sales and marketing 
employee was either a supervisory or a professional position. 3 As stated earlier, the Petitioner must 
support its assertions with relevant, probative, and credible evidence. See Chawathe, 25 I&N Dec. 
25 I&N Dec. 369, 376 (AAO 2010). 
Iri denying the petition, the Director concluded that the foreign entity's organizational hierarchy 
lacked the complexity to elevate the Beneficiary to a positon that was higher than that of a first-line 
supervisor of non-professional employees. The Director also found that the record lacked evidence 
to show that the Beneficiary assumed the role of a function manager. Given that the Petitioner did 
not dispute the Director's finding or provide further evidence on appeal, and given our finding that 
the Beneficiary has been responsible for a number of non-qualifying duties related to service 
delivery, client management, and other operational and functional duties, we tind that the Petitioner 
did not overcome this adverse conclusion. 
IV. CONCLUSION 
For the reasons discussed above, the evidence submitted does not establish that the Petitioner has a 
qualifying relationship with the Beneficiary's employer abroad or that the Beneficiary has been 
employed abroad in a managerial or executive capacity. 
ORDER: The appeal is dismissed. 
Cite as Matter of A-US LLC, ID# 523125 (AAO Aug. 31, 2017) 
3 
In evaluating whether a beneficiary manages professional employees, we must evaluate whether the subordinate 
positions require a baccalaureate degree as a minimum for entry into the field of endeavor. Cf 8 C.F.R. § 204.5(k)(2) 
(defining "profession" to mean "any occupation for which a U.S. baccalaureate degree or its foreign equivalent is the 
minimum requirement for entry into the occupation"). Section 101 (a)(32) of the Act, states that "[t]he term prof"ession 
shall include but not be limited to architects, engineers, lawyers, physicians, surgeons, and teachers in elementary or 
secondary schools, colleges, academies, or seminaries." 
..,