dismissed L-1A Case: Information Technology

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: APR. 16, 2024 In Re: 30850777 
Appeal of California Service Center Decision 
Form 1-129, Petition for a Nonimmigrant Worker (L-lA Manager or Executive) 
The Petitioner, an information technology consulting company, seeks to temporarily employ the 
Beneficiary as the executive partner/controller of its new office under the L-lA 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-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 that the Beneficiary has been employed abroad in a managerial or executive capacity for 
one continuous year in the three years preceding the filing of the petition, and that he is qualified to 
perform the intended services in the United States. The matter is now before us on appeal pursuant to 
8 C.F.R. § 103.3. 
The Petitioner bears the burden of proof to demonstrate eligibility by a preponderance of the evidence. 
Matter ofChawathe , 25 I&N Dec. 369, 375-76 (AAO 2010). We review the questions in this matter 
de novo. Matter of Christo 's, Inc., 26 l&N Dec. 537, 537 n.2 (AAO 2015). Upon de novo review, 
we will dismiss the appeal. 
I. LAW 
To establish eligibility for the L-lA nonimmigrant visa classification in a petition involving a new 
office, 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(1)(3)(v)(B). In addition, the beneficiary must seek 
to enter the United States temporarily to continue rendering their services to the same employer or a 
subsidiary or affiliate thereof in a managerial or executive capacity. Id. 
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). A petitioner seeking approval of an L-lA new 
office petition 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. ANALYSIS 
The primary issue we will address is whether the Petitioner established 
that the Beneficiary has been 
employed abroad in a managerial or executive capacity as defined at section 10l(a)(44)(A) or (B) of 
the Act, 8 U.S.C. § l 10l(a)(44)(A) or (B). 
The Petitioner filed the Form 1-129, Petition for a Nonimmigrant Worker on May 22, 2023, and stated 
that the Beneficiary would be coming to open or be employed as an L-lA manager or executive in its 
new office in the United States. The Petitioner stated that its claimed foreign parent company had 
continuously employed the Beneficiary as a software engineer since February 2021. The Petitioner 
explained that his duties as a software engineer included defining and documenting business 
technologies solutions; debugging, troubleshooting, and resolving problems across multiple systems 
and applications; and creating various diagrams, flowcharts and models that illustrate the type of code 
needed for programmers. 
The Petitioner submitted evidence of the Beneficiary's academic credentials (a bachelor's degree in 
engineering and a master's degree in computer science), a copy of the Beneficiary's January 2021 
employment offer letter from the foreign entity for the position of"software engineer," and the foreign 
entity's employee roster, showing the Beneficiary as one of nine software engineers employed by the 
company. 
In a request for evidence (RFE), the Director advised the Petitioner that its initial evidence was 
insufficient to establish that the Beneficiary has been employed abroad in an executive or managerial 
capacity for one continuous year in the preceding three years. The Director requested additional 
evidence related to the Beneficiary's foreign employment, including personnel or pay records 
establishing at least one full year of employment with the foreign entity during the relevant period, a 
more detailed description of his job duties identifying his specific duties and the percentage of time 
he allocates to managerial or executive duties, and an organizational chart providing relevant 
information regarding any employees he has supervised. 
In response to the RFE, the Petitioner, referencing the definition of "specialized knowledge 
professional" at 8 C.F.R. § 214.2(l)(l)(ii)(E), stated "[t]he beneficiary serves the foreign company as 
a Software Engineer with a Bachelor of Engineering and a Master of Science Degree to qualify him 
as a "Specialized knowledge professional." 
The Petitioner provided copies of the Beneficiary's monthly pay slips issued to him by the foreign 
entity between March 2021 and March 2022, all of which show his designation as "software engineer." 
It also submitted "increment letters" dated March 2022 and March 2023 indicating that he received a 
pay raise in this position after successful annual performance appraisals. The Petitioner stated that 
"the beneficiary should be classified as a highly skilled professional with an advanced degree." 
2 
In the decision denying the petition, the Director acknowledged the Petitioner's assertion that the 
Beneficiary has been employed abroad as a specialized knowledge professional. However, the 
Director emphasized that, in order for the Beneficiary to be eligible for L-lA classification as a 
manager or executive of a new office under 8 C.F.R. § 214.2(1)(3)(v), the Petitioner must demonstrate 
that he has been employed abroad as a manager or executive for at least one year. The Director 
concluded that the Petitioner had not met this burden. 
On appeal, the Petitioner emphasizes that it provided "confidential employment records" 
demonstrating the Beneficiary's one year of employment abroad as a software engineer. The 
Petitioner once again references the regulatory definition of"specialized knowledge professional" and 
asserts that the Director "failed to present any legal argument to support their refusal to acknowledge 
the probative evidence submitted." The Petitioner also contends for the first time that the Beneficiary 
and the foreign entity's eight other software engineers all hold "executive positions," emphasizing that 
"[i]f not for the Software Engineers we would have no business to operate." 
The Petitioner further asserts that "USCIS relies on the Department of Labor to determine the 
Employment based preference when an employer files a Labor Certification for a potential employee" 
and states that to meet the second preference employment-based (EB-2) immigrant visa classification, 
"the employer must require 5 years' experience and a minimum of a Bachelor's degree to serve in an 
Executive or Managerial Role." The Petitioner maintains that the Beneficiary "clearly meets these 
requirements." 
The Petitioner resubmits copies of the Beneficiary's educational credentials, along with the offer letter 
and "increment letters" the Beneficiary received from the foreign entity. 1 It also provides information 
regarding "Software Developers, Quality Assurance Analysts, and Testers," published in the U.S. 
Bureau of Labor Statistics' Occupational Outlook Handbook. Referencing this publication, the 
Petitioner states that 'there is no mention of the number of subordinate employees required for a 
software developer to supervise so they can maintain their role as an executive." 
Upon review, the Petitioner's assertions are not persuasive. As emphasized by the Director in the RFE 
and in the notice of decision, the regulations applicable to L-lA new office petitions allow for the 
transfer of foreign employees who have been employed abroad in a managerial or executive capacity. 
See 8 C.F.R. § 214.2(1)(3)(v)(B). Prior to the denial of the petition, the Petitioner consistently claimed 
that the Beneficiary, a software engineer, served in a specialized knowledge capacity with the foreign 
entity. As explained by the Director, the Petitioner cannot establish his eligibility for transfer to its 
new office in L-1 A classification based on a claim that he was employed abroad in a position involving 
specialized knowledge. 
On appeal, the Petitioner refers to the educational and experience requirements for classification of 
members of the professions holding an advanced degree at section 203(b)(2)(A) of the Act and asserts 
that the Beneficiary meets these requirements for "EB2" classification. However, the Petitioner cannot 
demonstrate the Beneficiary's eligibility for L-lA nonimmigrant classification by claiming he is 
eligible, based on his education and experience, for an unrelated immigrant visa category. The two 
1 The evidence submitted on appeal includes evidence that the Beneficiary completed a master's degree in computer 
science at in Illinois in December 2020. 
3 
classifications are based on different statutory and regulatory provisions. The Petitioner's reliance on 
the Department of Labor's published position description for the occupation of "software developer" 
is similarly misplaced. 
The Petitioner claims for the first time on appeal that the Beneficiary, and all the foreign entity's 
software engineers, hold "executive positions" because they are critical to its ongoing activities as an 
IT consulting business. To establish that the Beneficiary has been employed abroad in an executive 
capacity, the Petitioner must demonstrate that that he primarily performed the duties described at 
section 10l(a)(44)(B) of the Act. Under the statute, "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. 
Here, the job duties associated with the Beneficiary's position as a software engineer, as described on 
the Form 1-129 and in the Beneficiary's resume, are consistent with his job title, and do not demonstrate 
that he performs the higher-level responsibilities reflected in the statutory definition of "executive 
capacity." While we do not doubt that the work performed by software engineers is critical to the success 
ofthe foreign company's IT consulting business, the Petitioner has not demonstrated that the Beneficiary 
has been an executive employee of the foreign entity within the meaning of section 10l(a)(44)(B) of the 
Act. Further, the Petitioner has neither claimed nor established that the Beneficiary has been employed 
abroad in a managerial capacity as defined at section 101(a)(44)(A) of the Act. 
For the reasons discussed, the Petitioner has not overcome the Director's determination on this issue, 
and the appeal will be dismissed. Because this issue is dispositive of the Petitioner's appeal, we decline 
to reach and hereby reserve its appellate arguments regarding the Beneficiary's qualifications to 
perform the intended services in the United States. See INS v. Bagamasbad, 429 U.S. 24, 25 (1976) 
("courts and agencies are not required to make findings on issues the decision of which is unnecessary 
to the results they reach"); see also Matter ofL-A-C-, 26 I&N Dec. 516,526 n.7 (BIA 2015) (declining 
to reach alternative issues on appeal where an applicant is otherwise ineligible). 
III. ADDITIONAL ISSUE 
Although not addressed in the Director's decision, the record as presently constituted contains 
insufficient evidence to establish that the Beneficiary has at least one continuous year of full-time 
employment abroad with a qualifying organization within the three years preceding the filing of the 
petition. See 8 C.F.R. § 214.2(1)(3)(iii). 
This foreign employment requirement is only satisfied by the time a beneficiary spends physically 
outside the United States working full-time for a qualifying entity; a petitioner cannot use any time 
that the beneficiary spent in the United States to meet the one year of foreign employment requirement, 
even if a qualifying foreign entity continued to employ and pay the beneficiary. See 8 C.F.R. 
§ 214.2(l)(l)(ii)(A) (providing that periods spent in the United States shall not be counted toward 
fulfillment of the one year of continuous employment abroad requirement); see generally 2 USCIS 
Policy Manual L.6(G), https://www.uscis.gov/policy-manual. 
4 
The Petitioner filed the Form I-129 in May 2023 and indicated that the Beneficiary had been employed 
by its claimed parent company since February 2021. The Petitioner stated that the Beneficiary, as of 
the date of filing, was in the United States in F-1 student status and that he was last admitted on 
September 6, 2022. Although the Petitioner provided one year of monthly payroll records as evidence 
of the Beneficiary's employment with the foreign entity, Department of Homeland Security records 
reflect that he has been physically present in the United States in F-1 status for most of his tenure with 
the Indian company and spent no more than two to three months abroad between February 2021 and 
May 2023.2 
While this additional deficiency is not grounds for our dismissal of this appeal, the Petitioner will be 
required to address it in any future filings, whether in further pursuit of the instant petition or with 
regard to any other employment-based petition where this issue is relevant to eligibility. 
III. CONCLUSION 
For the reasons discussed, the Petitioner has not established that the Beneficiary has been employed 
abroad in a managerial or executive capacity. Accordingly, the appeal will be dismissed. 
ORDER: The appeal is dismissed. 
2 Specifically, DHS arrival and departure records indicate that the Beneficiary was in the United States from January 12, 
2020 until March 22, 2022; from April 5, 2022 until April 29, 2022; from June 4, 2022 until August 20, 2022; and from 
September 6, 2022 until the filing of this petition on May 22, 2023. 
5