dismissed L-1A Case: International Trade

U.S. Citizenship 
and Immigration 
Services 
MATTER OF F-A-E-INC . 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: SEPT. 6, 2019 
APPEAL OF CALIFORNIA SERVICE CENTER DECISION 
PETITION: FORM 1-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, describing itself as engaged in the "international trade of materials," seeks to temporarily 
employ the Beneficiary as its "Manager Director (2)" under the L-lA nonimmigrant classification for 
intracompany transferees. Immigration and Nationality Act (the Act) section 101(a)(15)(L), 8 U.S.C. 
§ 11 0l(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 on multiple grounds, concluding that 
the record did not establish , as required , that: (1) the Beneficiary's foreign employer was doing 
business as of the date the petition was filed; (2) the Petitioner was doing business; (3) the Beneficiary 
was employed in a managerial or executive capacity in his former capacity abroad; and (4) the 
Beneficiary would be employed in a managerial or executive capacity in the United States. 
On appeal, the Petitioner asserts that the regulations indicate that it and the foreign employer are not 
required to do business as of the date the petition was filed. The Petitioner emphasizes that a qualifying 
organization can be one that "will be" doing business. Further, with respect to the Beneficiary 's 
employment in a managerial or executive capacity abroad, and his proposed employment in the United 
States, the Petitioner states that: "given that the company is in its development stage, the function of 
an international business executive is essential." 
Upon de nova 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 10l(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. Id. The petitioner 
Matter of F-A-E- Inc. 
must also establish that the beneficiary's prior education, training, and employment qualify him or her 
to perform the intended services in the United States. 8 C.F.R. § 214.2(1)(3). 
II. FOREIGN EMPLOYER DOING BUSINESS 
The first issue we will analyze is whether the Petitioner established that the Beneficiary's foreign 
employer 1 was doing business as of the date the petition was filed. 
The regulations indicate that the Petitioner must submit evidence to demonstrate that it maintains a 
qualifying relationship with the beneficiary's foreign employer; farther, the regulations define 
qualifying organizations as those doing business "as an employer in the United States and in at least 
one other country." See 8 C.F.R. § 214.2(l)(l)(ii)(G) and 8 C.F.R. § 214.2(1)(14)(ii). "Doing 
business," is defined as the regular, systematic, and continuous provision of goods or services. 
8 C.F.R. § 214.2(1)(14)(ii)(A) and 8 C.F.R. § 214.2(1)(1)(ii)(H). 
In the Form 1-129, the Petitioner indicated that it was engaged in the "international trade of minerals 
and [the] foundry of metals," but it otherwise provided little detail and supporting documentation 
related to the foreign employer's business operations abroad in support of the petition. Therefore, in 
a request for evidence [RFE], the Director requested that the Petitioner submit evidence to demonstrate 
that the Beneficiary's foreign employer was, and is, doing business; suggesting it provide probative 
evidence such as annual reports, tax documentation, audited financial statements, transactional 
documents, or contracts. 
In response, the Petitioner stated that the owner of the foreign employer "is one of the holders of [a] 
mining license ... granted by the National Mining Agency of the Republic of Colombia" and that he "is 
able to harness manganese ore to then market it nationally and globally." The Petitioner farther 
asserted that this mining license had been "recently updated" and had a duration of 10 years. The 
Petitioner also submitted a copy of the mining license. In addition, the Petitioner provided a purchase 
order dated in December 2018 reflecting that the foreign employer had purchased approximately 
$52,000 of manganese dioxide ore from a vendor in Colombia. In addition, the Petitioner provided 
bills of lading and other documentation indicating the shipment of "used sample parts" in 2011. 
In denying the petition, the Director stated that the Petitioner did not submit sufficient evidence to 
demonstrate that the foreign employer was doing business continuously as of the date of the petition 
was filed. The Director noted that most of the provided documentation was outdated and that the 
Petitioner had only provided one purchase order dated after the date the petition was filed. 
On appeal, the Petitioner asserts that the foreign employer is not required to do business upon filing 
the petition stating that a qualifying organization is defined as a legal entity which is, "or will be," 
doing business. The Petitioner asserts that this "infers that there is a possibility for the business to be 
doing business in the future." It farther contends that the "outdated invoices show that it is doing 
business in the past" and that the purchase order from December 2018 reflects that it "is and has the 
1 The Petitioner indicates that the Beneficiary was employed by the foreign employer from January 2015 to April 2018. 
The petitioner was filed on May 17, 2018. 
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Matter of F-A-E- Inc. 
potential (will be doing business) ... continuously and systematically considering that the owner [ of the 
foreign employer] has a current and valid mining license for the next 10 years." 
The first issue we will address is the Petitioner's apparent contention on appeal that the Beneficiary's 
foreign employer need not be doing business according to the regulations as of the date the petition 
was filed. As noted, the Petitioner points to the definition of a qualifying organization and asserts that 
this references a legal entity that "is or will be [emphasis added] doing business." See 8 C.F.R. 
§ 214.2(1)(1)(ii)(G)(2). 
We disagree with the Petitioner's interpretation of the regulations. We acknowledge that the 
regulatory definition of a qualifying organization refers to a legal entity that is, or will be, doing 
business; however, we note that a qualifying organization can refer to both the foreign and U.S. 
employer sharing common ownership. Therefore, the "will be" referred to by the Petitioner in the 
definition of a qualifying organization is a reference to a "new office," or a U.S. based 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). 
United States Citizenship and Immigration Service (USCIS) has indicated a "requirement [that a 
petitioner and its foreign entity] continue to do business in the U.S. and at least one other country for 
the duration of the L's stay." 52 Fed. Reg. 5741 (Feb. 26, 1987). Congress did not intend the L 
category to accommodate the complete relocation of foreign businesses to the United States, as 
throughout the legislative history of section 101(a)(15)(L), Congress refers to "international 
companies." Id. The final rule defining qualifying organizations states that a qualifying organization 
must be doing business "as an employer in the United States and in at least one other country." See 8 
C.F.R. § 214.2(l)(l)(ii)(G). "Doing business," is defined as the regular, systematic, and continuous 
provision of goods or services. 8 C.F.R. § 214.2(1)(14)(ii)(A) and 8 C.F.R. § 214.2(1)(1)(ii)(H). As 
such, there is no basis in the regulations for the Petitioner's claim that the foreign employer could not 
be doing business as of the date of the petition was filed, or that it could be a qualifying organization 
doing business according to the regulations, based on the prospect of doing business. 
The record in this matter is clear, the Petitioner appears to acknowledge that the foreign employer is 
not doing business as of the date the petition was filed and indicates it is still not doing business as of 
the date of the current appeal. Although the Petitioner appears to suggest that the foreign employer 
"is" doing business, it also only discussed the potential of the foreign employer doing business based 
on a mining license its owner holds and based on a purchase order dated after the date the petition. 
However, this does not demonstrate that the foreign employer is providing goods or services in a 
regular, systematic, and continuous [ emphasis added] fashion as of the date the petition was filed. See 
8 C.F.R. § 214.2(1)(14)(ii)(A) and 8 C.F.R. § 214.2(1)(1)(ii)(H). The Petitioner has submitted only 
one foreign employer purchase order dated after the time the petition was filed. However, this is not 
relevant to establishing that the foreign employer was doing business as of the date the petition was 
filed. We note that the Petitioner must establish that all eligibility requirements for the immigration 
benefit have been satisfied from the time of the filing and continuing through adjudication. 8 C.F.R. 
§ 103.2(b)(l). 
Further, the submitted foreign employer purchase order, even if sufficient to establish the continuous 
or regular provision of goods (which we find that it is not), only indicates the purchase of manganese 
ore on one occasion, not its sale; namely the provision of goods. Beyond this, the Petitioner only 
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Matter of F-A-E- Inc. 
provides three foreign entity transactional documents from 2011 dating well before the date the petition 
was filed. In addition, the Petitioner did not submit, and still does not provide on appeal, the more 
probative evidence requested by the Director to demonstrate that the foreign employer was doing 
business as of the date the petition was filed, such as tax documentation, audited financial statements, 
contracts, or transactional documents dating from prior to the date the petition was filed. 
As such, there is insufficient documentation to establish that the foreign company is actively engaged 
in the regular, systematic, and continuous provision of goods or services as an employer in the United 
States or in a foreign country. Therefore, we cannot conclude that the Petitioner has established that 
the foreign employer is a qualifying organization as required by the regulation at 8 C.F.R. 
section 214.2(l)(l)(ii)(G)(2). 
III. PETITIONER DOING BUSINESS 
We will next analyze whether the Petitioner was doing business as required by the regulations as of 
the date the petition was filed. 2 
On appeal, the Petitioner offers a similar contention specific to its operations as that asserted with 
respect to the foreign employer's; specifically, it points to the regulatory definition of a qualifying 
organization referring to a legal entity that "will be" doing business. It also emphasizes the prospect 
of it doing business based on a mining license held by the foreign employer. As we have noted, the 
regulations clearly provide the option to file a petition related to a newly intended U.S. based 
operation. 3 However, the Petitioner did not indicate in the L Classification Supplement to Form I-129 
under Section 1, Item 12, or elsewhere on the record, that it was filing a new office petition. In fact, 
the Petitioner stated in Part 9, Item 3 of the Form I-129 that "the company already has a functioning 
office in the US." As such, the Petitioner is required to establish that it was doing business as of the 
date the petition was filed. 
Again, "doing business," is defined as the regular, systematic, and continuous provision of goods or 
services. 8 C.F.R. § 214.2(l)(l)(ii)(H) (defining the term "doing business"). The mere presence of an 
agent or office of the qualifying organization will not suffice. Id. The Petitioner has not provided 
sufficient evidence to establish that it was doing business as of the date the petition was filed. First, 
based on its assertions on appeal, it appears that the Petitioner acknowledges that it was not doing 
business. Second, the Petitioner only submits one purchase order between it and the foreign employer 
dated in January 2019, approximately seven months after the date the petition was filed, reflecting the 
sale of $92,000 worth of manganese dioxide. Once again, as this invoice postdates the petition, it is 
not relevant to demonstrating that it was doing business as of the date the petition was filed. Beyond 
this, the Petitioner submits little evidence to establish that it was regularly, systematically, and 
continuously providing goods and services as of the date the petition was filed, such as tax 
documentation, audited financial statements, contracts, or transactional documents dated prior to the 
date the petition was filed. 
2 Because of the dispositive effect of the above finding of ineligibility; namely, our affirmation of the Director's conclusion 
that the Petitioner did not establish that the Beneficiary's foreign employer was doing business as of the date the petition 
was filed, we will only briefly address the remaining issues addressed by the Director. 
3 8 C.F.R. § 214.2(1)(1)(ii)(F). 
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Matter of F-A-E- Inc. 
IV. REMAINING ISSUES 
As we have discussed, the Director also denied the petition concluding that the Petitioner did not 
establish that the Beneficiary was employed in a managerial or executive capacity abroad or that he 
would be employed in a managerial or executive capacity in the United States. 
In denying the petition on these grounds, the Director indicated that the Petitioner did not provide a 
sufficient description of the Beneficiary's foreign duties or his proposed duties in the United States. 
Further, the Director concluded that the Petitioner did not provide information related to the 
Beneficiary's subordinates abroad and submitted evidence indicating that its organizational chart in 
the United States was folly vacant. The Petitioner does little to address these apparent insufficiencies 
on appeal, stating only that "given that our company is in its development stage, the function of an 
international business executive is essential." 
Upon review, the provided evidence does not sufficiently demonstrate that the Beneficiary would act 
in a managerial or executive capacity in the United States or that he acted in this capacity abroad. 
With respect to the Beneficiary's foreign employment, the Petitioner only vaguely indicated that he 
designed, developed, and implemented "strategies," "his management was directed towards foreign 
communications and business relations," he was responsible for "commercial outreach" and "market 
research," and he "led various potential business agreements." This foreign duty description is generic 
and the Petitioner submitted little documentation to substantiate the Beneficiary's daily qualifying 
managerial and executive level tasks abroad. The provided foreign duties could apply to any manager 
or executive acting in any industry and they provide little insight into his actual day-to-day managerial 
or executive tasks abroad. For instance, the Petitioner did not sufficiently detail or document strategies 
the Beneficiary implemented, foreign communications or business relations he managed, commercial 
outreach he conducted, or business agreements he led. Specifics are clearly 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 ofreiterating the regulations. Fedin Bros. Co., Ltd. v. Sava, 
724 F. Supp. 1103, 1108 (E.D.N.Y. 1989), ajf'd, 905 F.2d 41 (2d. Cir. 1990). 
Further, the Petitioner only provided a brief duty description of the Beneficiary's proposed U.S. 
managerial or executive role reflecting he would likely be primarily engaged in non-qualifying 
operational duties. For instance, the U.S. duty description indicated that the Beneficiary would be 
tasked with purchasing "electrical, electronical [sic] equipment and other related products to ship to 
the U.S. to our company's facility located in Colombia" and that he would act "as our translator and 
interpreter for foreign customers." Not only is this duty description overly brief and vague, it appears 
to reflect that the Beneficiary would likely be exclusively devoted to non-qualifying operational duties 
under an approved petition. 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 l0l(a)( 44)(A) and (B) of the Act (requiring that one "primarily" 
perform the enumerated managerial or executive duties); Matter o_f Church Scientology Int 'l, 19 I&N 
Dec. 593, 604 (Comm'r 1988). 
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Matter of F-A-E- Inc. 
Even though the Beneficiary holds a senior position within the Petitioner or foreign employer, the fact 
that he will manage or direct a business does not necessarily establish eligibility for classification as 
an intracompany transferee in a managerial or executive capacity within the meaning of section 
10l(a)(44)(A) and (B) of the Act. By statute, eligibility for this classification requires that the duties 
of a position be "primarily" managerial or executive in nature. Id. The Beneficiary may exercise 
discretion over the Petitioner's or foreign employer's day-to-day operations and possess the requisite 
level of authority with respect to discretionary decision-making; however, the position descriptions 
alone are insufficient to establish that his actual duties would be primarily managerial or executive in 
nature. 
Again, the Petitioner has submitted little documentation to substantiate its, or the foreign employer's, 
staffing levels. In fact, the Petitioner provided an organizational chart reflecting several positions, all 
of which were vacant. Indeed, this makes sense in light of the fact that the Petitioner did not 
demonstrate that it is doing business as of the date the petition was filed. As such, the Petitioner did 
not demonstrate that it has staff to relieve the Beneficiary from primarily performing the non­
qualifying operational tasks listed in his U.S. duty description. With respect to the foreign employer's 
staffing, the Petitioner provided an organizational chart; however, it did not provide the names, duty 
descriptions, education levels, and salaries for each of these asserted positons, as requested by the 
Director. Further, it submitted no supporting documentation to substantiate these employees abroad. 
Therefore, the Petitioner did not provide adequate evidence to demonstrate that the foreign employer 
was sufficiently developed or staffed to support the Beneficiary in a managerial or executive capacity. 
In fact, as discussed, the Petitioner appears to acknowledge that the foreign employer was, and is, not 
doing business, leaving substantial question as to whether it was sufficiently operational to support 
the Beneficiary in a managerial or executive capacity. 
For the foregoing reasons, the Petitioner did not establish that the Beneficiary was employed in a 
managerial or executive capacity abroad or that he would be employed in a managerial or executive 
capacity in the United States. 
V. CONCLUSION 
The appeal will be dismissed for the above stated reasons, with each considered an independent and 
alternative basis for the decision. In visa petition proceedings, it is the petitioner's burden to establish 
eligibility for the immigration benefit sought. Section 291 of the Act, 8 U.S.C. § 1361. The Petitioner 
has not met that burden. 
ORDER: The appeal is dismissed. 
Cite as Matter of F-A-E- Inc., ID# 5213490 (AAO Sept. 6, 2019) 
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