dismissed L-1A Case: Investment And Consulting

U.S. Citizenship 
and Immigration 
Services 
In Re: 12065245 
Appeal of California Service Center Decision 
Form 1-129, Petition for L-lA Manager or Executive 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: NOV. 27, 2020 
The Petitioner, operating as an "investment and consultant" company, seeks to temporarily employ the 
Beneficiary as its "Executive Manager/President" 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, as required, that the Beneficiary was employed abroad and would be employed in the United 
States in a managerial or executive capacity. The matter is now before us on appeal. 
In these proceedings, it is the Petitioner's burden to establish eligibility for the requested benefit. See 
Section 291 of the Act, 8 U.S.C. § 1361. Upon de nova 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 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. Id. 
II. ANALYSIS 
As noted above, the Director denied the petition because the Petitioner did not establish: (1) that the 
Beneficiary was employed abroad in a managerial, executive, or specialized knowledge capacity; and 
(2) that the Beneficiary would be employed in the United States in a managerial or executive capacity. 
Each ground stands as an independent basis for the denial of the petition. With respect to the first 
ground, on appeal, the Petitioner offers only a general statement in which it disagrees with the 
Director's conclusion but does not explain how that conclusion was inconsistent with the submitted 
evidence or how the Director otherwise erred with respect to that ground.1 As the Petitioner does not 
address this issue on appeal, it has abandoned its claims. See Matter of R-A-M-, 25 l&N Dec. 657, 
658 n.2 (BIA 2012) (stating that when a filing party fails to appeal an issue addressed in an adverse 
decision, that issue is waived); see also Sepulveda v. U.S. Att'y Gen., 401 F.3d 1226, 1228 n. 2 (11th 
Cir. 2005); Hristov v. Roark, No. 09-CV-27312011, 2011 WL 4711885 at *1, 9 (E.D.N.Y. Sept. 30, 
2011) (the court found the plaintiff's claims to be abandoned as he failed to raise them on appeal to 
the AAO). When an appellant fails to properly challenge one of the independent grounds upon which 
the Director based the overall determination, the filing party has abandoned any challenge of that 
ground, and it follows that the Director's adverse determination will be affirmed. Sapuppo v. Allstate 
Floridian Ins. Co., 739 F.3d 678, 680 (11th Cir. 2014); United States v. Cooper, No. 17-11548, 2019 
WL 2414405, at *3 (11th Cir. June 10, 2019). For this reason, the appeal will be dismissed. 
In light of the above, it is unnecessary to analyze the remaining independent ground given that another 
ground is dispositive of the appeal. See I NS v. Bagamasbad, 429 U.S. 24, 25 (1976) (finding it 
unnecessary to analyze additional grounds when another independent issue is dispositive of the 
appeal); see also Matter of L-A-C-, 26 l&N Dec. 516, 526 n.7 (BIA 2015) (declining to reach 
alternative issues on appeal where an applicant is otherwise ineligible). Nevertheless, we will provide 
a brief analysis of the evidence to explain why the Petitioner would not prevail, even if the 
Beneficiary's proposed U.S. employment was the sole basis for the denial. 
Although the Petitioner stated that the Beneficiary would assume a position as its "Executive 
Manager/President," it did not specify whether the Beneficiary will be primarily engaged in 
managerial duties under section 101(a)(44)(A) of the Act, or primarily executive duties under section 
101(a)(44)(B) of the Act. Rather, the Petitioner provided ambiguous statements that did not clarify 
this critical point in any of its prior submissions and on appeal, asserts for the first time that the 
Beneficiary qualifies as both a manager and an executive. However, a petitioner claiming that a 
beneficiary will perform as a "hybrid" manager/executive will not meet its burden of proof unless it 
has demonstrated that the beneficiary will primarily engage in either managerial or executive 
duties. See section 101(a)(44)(A)-(B) of the Act. While in some instances there may be duties that 
could qualify as both managerial and executive in nature, it is the petitioner's burden to establish that 
the beneficiary's duties meet each set of criteria set forth in the statutory definition for either 
managerial or executive capacity. A petition may not be approved if the evidence of record does not 
establish that the beneficiary will be primarily employed in either a managerial or executive capacity. 
The Petitioner claims that the Beneficiary's proposed position fits the statutory provisions of 
managerial and executive capacity; however, the Petitioner has not offered sufficient evidence to 
support this claim. In the petition form, the Petitioner claimed three employees, a gross annual income 
of approximately $142,000, and a proffered wage of $80,000. In support of the petition, the Petitioner 
provided a brief job description stating that the Beneficiary would oversee "all aspects" of its 
operations, focusing on "client relations, budgeting, strategic planning, financial forecasts, 
maintenance, finances, team building, and staff development." In a request for evidence (RFE), the 
Petitioner was instructed to clarify whether the Beneficiary would be employed in a managerial or 
1 The appeal brief contains subsections with the headings "The Petitioner has established that the Beneficiary will be 
employed in a qualifying 'managerial capacity"' and 'The Petitioner has established that the Beneficiary will be employed 
in a qualifying 'executive capacity."' The brief does not contain subsections with parallel references to the Beneficiary's 
former employment with the foreign entity, nor does it otherwise reference the foreign employment. 
2 
executive capacity and to provide its organizational chart along with a detailed description of the 
managerial or executive job duties the Beneficiary would perform, but the RFE response did not 
include any of the requested information. Rather than addressing these issues, the Petitioner provided 
a copy of a 2014 statement that it offered in support of a previously filed L-1A petition and contained 
the same list of broadly stated job duties as those offered in the current petition form. Not only did 
the 2014 statement lack further details regarding the Beneficiary's proposed U.S. job duties, but it also 
lacked clarification as to whether the proposed position would be in a managerial or executive 
capacity. Further, although the RFE response indicates that an organizational chart had been submitted 
as Exhibit 24 at the time this petition was filed, the referenced exhibit includes contents pertaining 
exclusively to the Petitioner's claimed U.S. subsidiaries and does not include information about the 
staffing or management structure that is specific to the Petitioner. As such, it is unclear who in the 
Petitioner's three-person staff would perform the investment and consulting services the Petitioner 
claims to offer. 
In sum, the Petitioner declined to adequately address the issues highlighted in the RFE, thereby 
precluding a meaningful assessment of the Beneficiary's typical job duties and the Petitioner's 
staffing, factors that are critical to a determination of whether the Beneficiary would be employed in 
a managerial or executive capacity. Even where a petitioner establishes that the beneficiary will 
manage or direct a business, this factor alone does not necessarily establish eligibility for classification 
as an intracompany transferee in a managerial or executive capacity within the meaning of section 
101(a)(44) of the Act. By statute, eligibility for this classification requires that the duties of a position 
be "primarily" executive or managerial in nature. Sections 101(A)(44)(A) and (B) of the Act. 
Further, even if a beneficiary exercises discretion over a petitioner's day-to-day operations and 
possesses the requisite level of authority with respect to discretionary decision-making, the proposed 
employment may still be non-managerial or non-executive if the job duties performed are primarily 
operational in nature. 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'I, 19 l&N Dec. 593, 
604 (Comm'r 1988). To determine whether a beneficiary will primarily perform managerial or 
executive job duties, we rely on specific information about a beneficiary's actual daily tasks, as the 
actual duties themselves reveal the true nature of the employment. Fedin Bros. Co., Ltd. v. Sava, 724 
F. Supp. 1103, 1108 (E.D.N.Y. 1989), aff'd, 905 F.2d 41 (2d. Cir. 1990). As noted earlier, however, 
the Petitioner did not provide this information either at the time of filing or in response to the RFE, 
even though it was expressly requested to do so. 
On appeal, the Petitioner argues that the denial "misstates, misreferences [sic], and miscategorized 
[sic] several facts." The Petitioner repeatedly points to its previously approved L-1A petitions and 
continues to refence a policy memorandum, which has since been rescinded and superseded by a new 
memorandum, where U.S. Citizenship and Immigration Services (USCIS) clarified that "an 
adjudicator's fact-finding authority ... should not be constrained by any prior petition approval, but 
instead should be based on the merits of each case." USCIS Policy Memorandum, PM-602-0151, 
Rescission of Guidance Regarding Deference to Prior Determinations of Eligibility in the 
Adjudication of Petitions for Extension of Nonimmigrant Status (Oct. 23, 
3 
2017), https://www.uscis.gov/sites/default/fi I es/USC IS/Laws/Memoranda/2017 /2017-10-
23Rescission-of-Deference-PM6020151.pdf. Thus, the Petitioner's contention that the Director must 
provide a "proper basis" for not giving deference to the prior approvals is in direct conflict with this 
memorandum, which also emphasizes that "the burden of proof remains on the petitioner, even where 
an extension of nonimmigrant status is sought." Id. 
Further, although the Petitioner is not a "new office" 2 and therefore was not required to provide initial 
supporting evidence when filing this petition extension, the regulations require the Petitioner to 
provide "[s]uch other evidence as the director, in his or her discretion may deem necessary." 8 C.F.R. 
§ 214.2(1)((3)(viii); see also 8 C.F.R. § 214.2(1)(14)(i) (requiring a Petitioner to provide supporting 
evidence when requested by the director). Although the Petitioner argues that it provided an 
"abundance of documentary evidence" and that such evidence was "completely ignored," it does not 
elaborate on the specific evidence it claims was "completely ignored." The Petitioner must support 
its assertions with relevant, probative, and credible evidence. See Matter of Chawathe, 25 l&N Dec. 
369, 376 {AAO 2010). Likewise, given the evidentiary deficiencies described above, the record 
similarly does not support the Petitioner's contention that the Director "arbitrarily and capriciously 
scrutinized" this petition. 
Regardless, on appeal, the Petitioner does not address the issue of the Beneficiary's foreign 
employment. Therefore, the Petitioner has abandoned its claims regarding that issue and the petition 
cannot be approved. 
ORDER: The appeal is dismissed. 
2 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). The regulation at 8 C.F.R. § 214.2(1)(3)(v)(C) allows a "new office" operation no more than 
one year within the date of approval of the petition to support an executive or managerial position. 
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