dismissed L-1A Case: International Trade

MATTER OF 8-(- CO. lNC. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: SEPT. 27, 2018 
APPEAL OF CALIFORNIA SERVICE CENTER DECISION 
PETITION: FORM 1-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, an international trade, investment, and real estate company, seeks to continue the 
Beneficiary's employment as its chief executive officer (CEO) under the L-IA nonimmigrant 
classification for intracompany transferees. 1 See Immigration and Nationality Act (the Act) section 
101(a)(l5)(L), 8 U.S.C. § 110l(a)(15)(L). The L-IA classification allows a corporation or other legal 
e~tity (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 approved the petition, but further determined that the 
Beneficiary had engaged in unauthorized employment and did not maintain his nonimmigrant status. 
As such, the Director concluded that the Beneficiary was ineligible for the requested extension. The 
Petitioner later filed a motion to reopen that the Director granted. The Director denied the petition, 
concluding that the Beneficiary's proposed duties would be contrary to federal law, prohibiting an 
extension. The Petitioner subsequently filed the instant appeal. 
As a preliminary matter, we note that the appropriate procedure by the Director in this scenario 
would have been revocation of the approval rather than denial. However, the Petitioner has not 
raised this procedural error. This matter was adjudicated by the Director on the Petitioner's 
affirmative motion to reopen and is now before us on appeal. We deem the error to be harmless, as 
the Director provided notice to the Petitioner of the derogatory information and afforded the 
Petitioner an opportunity to rebut it prior to denying the petition. Compare 8 C.F.R. 
§~ 103.2(b)(8)(iv) and 2 l 4.2(1)(9)(iii)(B). Therefore, we see no purpose in having the Director 
adjudicate this matter again in a revocation proceeding, as the Petitioner was already afforded an 
equivalent process, and now has the opportunity to submit additional arguments and evidence on 
appeal and have the merits of the matter addressed de novo. 
1 The Petitioner previously filed a "new office" petition on the Beneficiary's behalf which was approved for the period 
January 11. 2016, until February 2, 2017. 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(1)( I )(ii)(F). The regulation at 
8 C.F.R. § 214.2(1)(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. See also 8 CFR 214.2(1)( 14)(ii). 
Malter of B-1- Co. Inc. 
In its appeal, the Petitioner contends that its proposed marijuana cultivation plans are not contrary to 
federal law and asserts that it has not possessed, cultivated, or distributed "large quantities of 
cannabis." The Petitioner states that it would only proceed with its marijuana cultivation plans if it 
received all necessary state and federal permits. 
Upon de novo review, we will 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 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 his or her services to the same employer or a subsidiary or affiliate thereof in a 
managerial or executive capacity. Id. 
A petitioner seeking to extend an L-1 A 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(1)(14)(ii). 
II. ILLEGAL OR INVALID EMPLOYMENT 
The first issue to analyze is whether the Petitioner's proposed extension of the Beneficiary's 
employment is based on an illegal offer of employment. In Matter of I- Corp., Adopted Decision 
2017-02 (AAO Apr. 12, 2017), we concluded that although U.S. Citizenship and Immigration 
Services' (USCIS) primarily responsibility is to adjudicate immigration benefit requests available 
under applicable immigration law, we will also take into account other intersecting areas of law; 
including federal criminal law. In other words, USCIS cannot approve a visa petition that is based 
on employment that contravenes another federal law. 
A. Background 
The Petitioner indicated that it is engaged in international trade, including the importation of food, 
beverages, cosmetics, fruits, and baby products. The Petitioner submitted evidence indicating that it 
is wholly owned by the Beneficiary. In addition, the Petitioner submitted the foreign employer's 
"articles" reflecting that the foreign employer was formed through a capital contribution of 500,000 
Chinese Yuan (CNY), including a 300,000 CNY contribution by the Beneficiary and 200,000 CNY 
provided by another individual. The Petitioner _stated in a support letter provided with the petition 
that the Beneficiary "owns a majority 60% of stock shares of [the foreign employer]" and that he is a 
majority shareholder in both entities. 
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Maller of B-1- Co. Inc. 
The Petitioner also provided evidence indicating that it created a subsidiary company in the United 
States, that is 60% owned by the Beneficiary's foreign employer, 
20% owned by the company's chief financial officer, and -20% owned by another individual. The 
Petitioner stated in response to a request for evidence (RFE) issued by the Director that "[the 
Beneficiary] approved to set up the subsidiary entity, " 
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The Petitioner submitted documentation indicating that purchased a 19.4 acre piece of 
land it planned to de\;elop into an "ecological industry park." An accompanying project plan titled 
detailed plans to construct a ten building 
campus for the cultivation of "cannabis," including "I 0,000 square feet of outdoor grow areas, 
laboratories, processing section, staff residence area and inventories warehousing space." The 
Petitioner stated in the business plan that "cannabis is highly valued and has many medical benefits" 
and further noted that the drug could be sold to pharmaceutical companies to produce medicines for 
the treatment of a wide range of ailments. In addition, the business plan indicated that California 
"has the highest marijuana sales" and that the State was expected to legalize recreational marijuana 
in January 2018. The business plan also explained that in California cannabis could "be used in 
pharmaceutical production [ and] recreation, [ and that] the extracts can also be the ingredients of 
food additives, supplements and even cosmetics." The plan further stated that projected investment 
in the project was $15 million. 
The Petitioner submitted duties performed by the Beneficiary during the previous year reflecting that 
he had devoted 90% of his time to the Petitioner's import and export business, including negotiating 
distribution agreements with vaping, baby, and beauty and cosmetic product companies in the 
United States. The Beneficiary's duties also indicated that he spent 10% of his time under the new 
office petition overseeing the Petitioner's affiliated company in the United States, 
including approving the purchase of the aforementioned 19 acres of land in California and 
developing and approving the discussed "ecological industry park project." 2 The Petitioner also 
provided duties the Beneficiary would perform under the extended petition, again indicating that he 
would spend 10% of his time giving direction and leadership to and establishing its 
policies, objectives , and strategies. 
The Director denied the petition concluding that the Beneficiary had signed documents pertaining to 
the purchase of land and taken action to carry out a business plan that contravened federal law, 
namely the intent to manufacture, distribute, or dispense a controlled substance. On appeal, the 
Petitioner asserts that beyond purchasing land, its affiliate has not conducted any 
business or employed anyone. The Petitioner refers to a Drug Enforcement Agency (DEA) program 
through which a license for the production of marijuana can be granted and contends that it intends 
to acquire this license prior to any marijuana production. The Petitioner asserts that plans 
to manufacture marijuana legally, noting that it "has not possessed, cultivated, or distributed large 
2 We note that several documents submitted by the Petitioner, including the Form 1-129 and accompanying letters of support, 
state that the Petitioner was doing business as 
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Malter of B-1- Co. Inc. 
quantities of cannabis." It further states that would "implement its plans only if they can 
obtain all necessary pennits from federal and local governments." 
B. Analysis 
The Controlled Substances Act (CSA) imposes restrictions on the manufacture and distribution of 
marijuana in the United States. See 21 U.S.C. § 812, 841(a)(l). The-CSA states that "it shall be 
unlawful for any person knowingly or intentionally ... to manufacture, distribute, or dispense, or 
possess with intent to manufacture, distribute, or dispense, a controlled substance." 2-1 U .S.C. 
§ 84l(a)(l). Under the CSA, anyone seeking to manufacture or distribute marijuana must apply for 
registration. See21 U.S.C § 822(a)(1). 
Although certain states have legalized or decriminalized the use of marijuana-including the state of 
California-its possession, cultivation, and · distribution remains illegal under federal law. A 
memorandum issued by the Attorney General of the United States in January 2018 encapsulates the 
federal government's current policy with respect to marijuana: 
In the Controlled Substances Act, Congress has generally prohibited the cultivation, 
distribution, and possession of marijuana. 21 U.S.C. § 801 et seq. 1t has established 
significant penalties for these crimes. 21 U.S.C. § 841 et seq. These activities also 
may serve as the basis for the prosecution of other crimes, such as those prohibited by 
the money laundering statutes, the unlicensed money transmitter statute, and the Bank 
Secrecy Act. 18 U.S.C. §§ 1956-57, 1960; 31 U.S.C. § 5318. These statutes reflect 
Congress's determination that marijuana is a dangerous drug and that marijuana 
activity is a serious crime. 
Jefferson B. Sessions, Ill, Att'y Gen., Memorandum for All United States Attorneys: Marijuana 
Enforcement (Jan. 4, 2018). 
As such, there is little question that the marijuana manufacturing and distribution plans set forth in 
the Petitioner's business plan contravene federal law. We acknowledge the Petitioner's assertion 
that it and its affiliate may not have currently violated federal law, although we take no position as to 
this contention. Our assessment here does not lie in a determination of criminal culpability, but 
whether it is more likely than not that the Beneficiary's employment as stated in the petition would 
.involve conduct that contravenes federal law. Except where a different standard is specified by law, 
a petitioner must prove eligibility for the requested immigration benefit by a preponderance of the 
evidence. Matter ofChawathe, 25 I&N Dec. 369, 375-76 (AAO 2010). Under the preponderance of 
the evidence standard, the evidence must demonstrate that the petitioner claim is "probably true." 
Id. at 376. Therefore, following the Director's notice of intent to deny based on the legality of the 
proposed job duties, the Petitioner was required to demonstrate that it is more likely than not that the 
Beneficiary's employment would not contravene federal law. 
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Matter of B-1- Co. Inc. 
We will first address the Petitioner's assertion on appeal that the Beneficiary is not an employee of 
and therefore, not a party to the proposed marijuana production plans. Regardless of 
whether the Beneficiary is deemed an employee of the Petitioner states directly in his 
duties that he has, and would, devote 10% of his time to overseeing the activities of its affiliate. The 
description of the Beneficiary's duties during the first year indicate that he approved the purchase of 
the 19.4 acres of land in California and developed and approved the "ecological industry park 
project" on behalf of Further, the Petitioner also stated that the Beneficiary approved the 
creation of and the evidence reflects that he has a controlling interest in based 
on his majority interest in the foreign employer, who owns 60% of In addition, the 
Petitioner submitted a Form 1-129 and accompanying support letters reflecting that it was "doing 
business as" , despite its attempt to now distance itself and the Beneficiary, its asserted 
CEO, from ___ operations. 
In sum, the Petitioner's assertion that the Beneficiary is not an employee of and in tum, 
not a party to its proposed marijuana production plans is not convincing given the evidence 
submitted. The submitted evidence indicates that the Beneficiary ordered the affiliate's creation, 
that he directed its operations related to potential marijuana production, and that he holds a· 
controlling ownership interest in this entity. Therefore, it appears more likely than not that he would 
continue to do this under an extended petition. 
The submitted evidence demonstrates that the Beneficiary's proposed employment would more 
likely than not involve duties that contravene federal law. As noted, the Petitioner submits a 
business plan, which it still provides on appeal, outlining detailed plans for its affiliate to build an 
extensive marijuana production facility on land purchased in California for this stated purpose. 
While the Petitioner indicates that it does not plan to proceed until it receives DEA, and other 
applicable, licenses to produce marijuana, this claim is speculative. USCIS regulations require a 
petitioner to establish eligibility for the benefit it is seeking at the time the petition is filed. 8 C.F.R. 
§ l 03 .2(b )(1 ). A visa petition may not be approved based on speculation of future eligibility or after 
a petitioner or beneficiary becomes eligible under a new set of facts. See Matter of Michelin Tire 
Corp., 17 l&N Dec. 248, 249 (Reg'l Comm'r 1978); see also Matter of Katigbak, 14 I&N 45, 49 
(Reg'l Comm'r 1971). 
Also, the DEA license cited by the Petitioner is narrowly granted only for the provision of marijuana 
to government approved research projects consistent with 21 U .S.C § 823(f).3 The submitted 
business plan provides no indication that 
3 On August 12, 2016, the DEA issued guidance "to facilitate research involving marijuana and its chemical constituents ... 
designed to increase the number of entities registered under the Controlled Substances Act (CSA) to grow (manufacture) 
marijuana to supply legitimate researchers in the United States." Applications to Become Registered Under the Controlled 
Substances Act To Manufacture Marijuana To Supply Researchers in the United States, 81 Fed. Reg. 156, 21 CFR Part 1301, 
53846-48 (Aug. 12, 2016). The DEA guidance discusses its close control over the growing process, including taking 
"physical possession of all cannabis crops rrom all cultivators as soon as possible" and an extensive vetting and application 
process. Ibid. 
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Matter of B-1- Co. hJc. 
plans to construct a marijuana production facility would be for the limited purpose of 
supplying marijuana strictly for government approved research projects through the DEA. The 
provided business plan points to the medical benefits of marijuana, its use in the treatment of various 
ailments, its medical and recreational use in California, its robust sales in California, its recreational 
legalization in California, and its potential use in foods, supplements, and cosmetics. Further, the 
submitted plans do not mention a DEA license and the provision of marijuana for approved research 
projects only, nor has the Petitioner provided any evidence that it, or its affiliate, have sought a 
license for this purpose from the DEA. 
In fact, the Petitioner states that it has not possessed "large [ emphasis added] quantities" of 
marijuana to date, indicating that it has or is actively possessing marijuana and potentially already 
acting in violation of federal law. As such, although the Petitioner asserts that its business activities 
have not, and would not, be in violation of federal law, its statements and the supporting evidence 
indicate otherwise. The Petitioner must resolve inconsistencies and ambiguities in the record with 
independent, objective evidence pointing to where the truth lies. Matter of Ho, I 9 l&N Dec. 582, 
591-92(BIA 1988). 
As such, we conclude that it is more likely than not that the Beneficiary's duties would contravene 
federal law. For this reason, the petition is not approvable and the appeal must be dismissed. 
III. U.S. EMPLOYMENT IN AN EXECUTIVE CAPACITY 
Apart from the reasons for dismissal discussed above, review of the record reveals an additional issue 
which the Petitioner must resolve if it seeks to pursue this matter further. Although not addressed by 
the Director, we note that it does not appear that the Beneficiary would be employed in an executive 
capacity under the extended petition.4 
The statute defines an "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) of the Act. · 
As discussed, beyond its proposed marijuana production plans and related land investment through 
the Petitioner indicated that it was engaged in "international trade," including the export 
and sale of foods, beverages, cosmetics, and baby products. Although the Petitioner submitted a 
lengthy description of the Beneficiary's duties, the provided tasks are repetitive, many times relisting 
or rewording the same responsibilities related to vague strategies, goals, policies, and financial 
· 4 The Petitioner did not claim that the Beneficiary would be employed in a managerial capacity; therefore, our brief 
discussion is restricted to the executive capacity claim. See section \0l(a)(44) of the Act; see also 8 CFR 214.2(1)(l)(ii) 
(defining managerial and executive capacity). 
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Matter of B-I- Co. Inc. 
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matters. The duty description includes several generic duties that could apply to any executive 
acting in any business or industry and they do not provide sufficient insight into the actual nature of 
the Beneficiary's role. Furthermore, the Petitioner emphasized the Beneficiary's substantial 
responsibilities related to the company's board of directors. However, such duties are questionable 
as supporting documentation reflects that he is the only member of the company's board. 
The Petitioner also provided insufficient evidence substantiating the Beneficiary's delegation of non­
qualifying operational duties to his subordinates. It is not clear which employees were performing 
the non-qualifying operational tasks of the business, namely those related to the export and sale of 
goods, at the time the petition was filed. The Petitioner only provided evidence to substantiate one 
operational-level employee, a sales employee based in the United States, as of the date the petition 
was filed. Further, the Petitioner submitted no evidence to support its assertion that it engaged 
foreign employees to perform the non-qualifying operational-level duties of the business as 
necessary to relieve its claimed managers and the Beneficiary from these tasks. 
For these reasons, the Petitioner did not sufficiently demonstrate that the Beneficiary would act in an 
executive capacity under the extended petition. Therefore, even if the Petitioner had overcome the 
illegal offer of employment issue, we would have been required to remand this matter to the Director 
for the issuance of a new notice of intent to revoke to address this additional ground of eligibility. 
IV. CONCLUSION 
The appeal will be dismissed as the Beneficiary's proposed employment is based on an offer of 
employment that contravenes federal law. 
ORDER: The appeal is dismissed. 
Cite as Matter of B-1- Co. Inc., ID# 1221782 (AAO Sept. 27, 2018) 
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