dismissed L-1A Case: It Services

U.S. Citizenship 
and Immigration 
Services 
In Re: 15465813 
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: MAR. 02, 2021 
The Petitioner, an IT services company, seeks to employ the Beneficiary temporarily as its "Senior 
Director/Digital Transformation" 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 capacity or executive capacity. The matter is now before us on appeal.1 
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. QUALIFYING RELATIONSHIP 
As a preliminary matter, and beyond the decision of the Director, the first issue we will address is 
whether the Petitioner established that it has a qualifying relationship with the Beneficiary 's foreign 
1 Although the Petitioner referred to the motion to reopen and reconsider in the title and contents of its supporting legal 
brief, it marked box 1.b in the Form 1-290B, Notice of Appeal or Motion, thereby indicating that it intended to file an 
appeal, rather than a motion to reopen, motion to reconsider, or a combined motion to reopen and reconsider. Therefore, 
we will treat the Petitioner's filing as an appeal. 
employer. To establish a "qualifying relationship," the 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 that they are related as a "parent and subsidiary" or as "affiliates." See section 
101(a)(15)(L) of the Act; see also 8 C.F.R. § 214.2(1)(1)(ii) (providing definitions of the terms 
"parent," "branch," "subsidiary," and "affiliate"). As we discuss below, the Petitioner has not 
established that it has a qualifying relationship with the Beneficiary's foreign employer. 
In the L Classification Supplement, the Petitioner stated that the same two individuals -I I 
,___ _____ _.' and I I-own 100% of its stock and 60% of the foreign entity's 
stock, respectively. The Petitioner stated that these common ownership schemes result in an affiliate 
relationship between it and the Beneficiary's foreign employer. 
The term "affiliate" applies when two entities are owned and controlled by the same parent or 
individual or by the same group of individuals with each individual owning and controlling 
approximately the same share or proportion or each entity. See 8 C.F.R. § 214.2(I)(1)(L). In support 
of the claim that the Petitioner and the foreign entity are affiliates, the Petitioner provided ownership 
documents pertaining to both entities. Regarding its own ownership, the Petitioner provided an 
operating agreement, which lists,___ ________ ____. and,___ _____ ~as its two 
owners and shows that each individual has a 50% ownership interest. This information was reiterated 
in the Petitioner's 2018 tax return. 
Regarding the foreign entity's ownership, the Petitioner provided a memorandum of association 
showing that the foreign entity was established in 2016 and issued a total of 10,000 shares - 5000 to 
I I and 5000 to ,___--------,,--.....-----~" The Petitioner also provided 
documents indicating that this ownership scheme had significantly change in the time period leading 
up to the filing of this petition. Namely, the Petitioner provided two documents dated December 2018 
and titled "Form No. SH-1," each indicating that it represents a previously issued stock certificate. 
One Form No. SH-1 states that it represents stock certificate no. 3 and was created for the purpose of 
issuing 3000 shares tol t2 "in lieu of share certificate no. 1"; the other Form No. SH-
1 states that it represents stock certificate no. 7 and was created for the purpose of issuing 3000 shares 
to I I "in I ieu of share certificate no. 3." Together, these documents account for only 
6000 out of the 10,000 originally issued shares. This scheme identifies! l as a new 
owner and indicates that although,___ _____ ~still has ownership in the foreign entity, he no 
longer has the 50% interest he had at the time of the original share issuance and which he currently I 
still has with respect to the petitioning entity. Rather, the new ownership scheme indicates that 
I I and I ~ each owns 30% of the foreign entity, thereby indicating that no 
one individual has a controlling interest. 
Regulation and case law confirm that ownership and control are the factors that must be examined in 
determining whether a qualifying relationship exists between United States and foreign entities. See, 
e.g., Matter of Church Scientology lnt'I, 19 l&N Dec. 593 (Comm'r 1988); Matter of Siemens Med. 
Sys., Inc., 19 l&N Dec. 362 (Comm'r 1986); Matter of Hughes, 18 l&N Dec. 289 (Comm'r 1982). 
Ownership refers to the direct or indirect legal right of possession of the assets of an entity with full 
power and authority to control; control means the direct or indirect legal right and authority to direct 
2 The record contains multiple iterations and spellings of this name. 
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the establishment, management, and operations of an entity. Matter of Church Scientology lnt'I, 19 
l&N Dec. at 595. 
In the matter at hand, the Petitioner claims that an affiliate relationship exists between it and the foreign 
entity because both entities are majority owned byl I and.__ _____ __,. The 
Petitioner focuses on these individuals' collective ownership interests and claims that together they 
own 100% and 60% of the Petitioner and foreign entity, respectively. However, the Petitioner's 
interpretation of the term "affi I iate" is not consistent with the term's regulatory definition, which states 
that in order for two entities to qualify as affiliates they must be owned and controlled by the same 
parent or individual or by the same group of individuals with each individual in the group owning and 
controlling approximately the same share. See 8 C.F.R. § 214.2(1)(1)(L). The record in the present 
matter shows that I I andl ~ each owns 50% and therefore controls 
the petitioning entity by virtue of having veto power over 50% of the votes. The same is not true of 
I I andl l's respective ownership interests in the foreign entity of 
which each individual owns only 30% and does not have "de jure" control by reason of owning 51 
percent of the foreign entity's outstanding stock. Matter of Hughes, 18 l&N Dec. 289 (Comm'r 1982). 
Control may also be "de facto" by reason of control of voting shares through partial ownership and 
possession of proxy votes. Id. In order to establish de facto control by an individual, a petitioner must 
provide agreements relating to the control of a majority of the shares' voting rights through proxy 
agreements. Id. at 293. In addition, such proxy agreements must show that the proxy votes 
establishing control are "irrevocable from the time of filing the L-1 petition through the time of 
adjudication." USCIS Policy Memorandum PM 602-0155, L-1 Qualifying Relationships and Proxy 
Votes 4 (Dec. 29, 2017), https://www.uscis.gov/legal-resources/policy-memoranda. A "proxy" within 
the context of corporate law is a person who is authorized to vote another's shares. Proxy, Black's 
Law Dictionary (11th ed. 2019). When there is evidence of a formal agreement allowing a shareholder 
to vote by "proxy" for another, the voting shareholder has de facto control over the shares. The 
agreement of two individuals to vote shares in concert does not rise to the level of a "proxy" agreement 
giving one individual control over the voting rights of a majority of the issued shares. In this instance, 
the record contains no evidence demonstrating thatl I has de facto control of the 
foreign entity. Thus, although I I owns and controls the Petitioner, he owns only 
30% of the foreign entity, which he does not control. 
In light of the evidence discussed above, we conclude that the degree of common ownership and 
control between the Petitioner and the foreign entity does not rise to the level of an affi I iate 
relationship. Therefore, a qualifying relationship did not exist between the Petitioner and the 
Beneficiary's foreign employer at the time of filing and for this reason the petition cannot be approved. 
Ill. U.S. EMPLOYMENT IN A MANAGERIAL CAPACITY 
The second issue to be addressed in this decision is whether the Petitioner has established that the 
Beneficiary's proposed employment will be in a managerial capacity.3 
3 In a supporting statement, the Petitioner stated that the Beneficiary will "manage existing client engagements and seed 
growth," thereby indicating that the proposed position would be in a managerial capacity. The Petitioner does not claim 
that the Beneficiary will be employed in an executive capacity. Therefore, we will limit our discussion to whether the 
Beneficiary will be employed in a managerial capacity. 
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"Managerial capacity" means 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 subdivision 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) of the Act. 
To be eligible for L-lA nonimmigrant visa classification as a manager, the Petitioner must show that 
the Beneficiary will perform the high-level responsibilities set forth in the statutory definition at 
section 101(a)(44)(A)(i)-(iv) of the Act. If the record does not establish that the offered position meets 
all four of these elements, we cannot conclude that it is a qualifying managerial position. 
If the Petitioner establishes that the offered position meets all elements set forth in the statutory 
definition, the Petitioner must prove that the Beneficiary will be 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). In determining whether a given 
beneficiary's duties will be primarily managerial, we consider the Petitioner's description of the job 
duties, the company's organizational structure, the duties of a beneficiary's subordinate employees, 
the presence of other employees to relieve the 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 Petitioner must provide a job description that clearly describes the duties to be performed by the 
Beneficiary and indicate whether such duties are in a managerial capacity. See 8 C.F.R. 
§ 214.2(I)(3)(ii). Beyond the required description of the job duties, we examine the company's 
organizational structure, the duties of the Beneficiary's subordinate employees, the presence of other 
employees to relieve the Beneficiary from performing operational duties, the nature of the business, 
and any other factors that will contribute to understanding the Beneficiary's actual duties and role in 
a business. 
Accordingly, we will discuss evidence regarding the Beneficiary's job duties along with evidence of 
the nature of the Petitioner's business, its staffing levels, and its organizational structure. 
A. Supporting Evidence 
In the petition form the Petitioner claimed 150 employees and stated that the Beneficiary would be 
paid an annual salary of $120,000. The Petitioner stated that the Beneficiary will oversee "8 direct 
reports and 10+ indirect reports" and provided a proposed organizational chart showing the 
Beneficiary overseeing nine subordinates within the context of a 27-person staff. The chart shows the 
Beneficiary and three vice presidents (VPs) as the direct subordinates of the company's president, who 
sits at the top of the hierarchy. The Beneficiary and the three VPs are each shown as overseeing 
subordinates in digital transformation, technology, delivery, and sales, respectively. The chart depicts 
the Beneficiary as heading the digital transformation component, which is shown to include one 
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technical manager, three software developers, two consultants, two analysts, and one technical lead as 
the Beneficiary's direct subordinates. With the exception of the technical lead, the Petitioner listed 
the subordinates' duties and salaries, showing that six subordinates earn annual salaries of $100,000 
or less, while the senior Oracle consultant, technical manager, and programmer analyst receive annual 
salaries of $135,000, $134,400, and $120,000, respectively. 
The Petitioner also provided the Beneficiary's job duty breakdown, which is divided into five broad 
categories, each containing a list of corresponding activities. The breakdown shows that the 
Beneficiary will allocate 30% of his time to enhancing client engagement and satisfaction, which will 
include communicating with "stakeholders" at the client organization, assessing client satisfaction, 
participating in client meetings, and serving as "first escalation point of contact" for client services; 
25% of his time will be spent adding new projects to existing accounts, which will involve 
communicating with the client's "new existing groups," presenting the Petitioner's business model to 
"new groups," and communicating with the client to address and resolve problems; and 30% of his 
time will be spent acquiring new clients and engaging in "Global expansion," which will include 
meeting with prospective clients, exploring "new territories as part of global expansion," and 
negotiating contracts. The remaining 15% of the Beneficiary's time is allocated to developing a 
subordinate team and monitoring project delivery. 
In a request for evidence (RFE), the Director found that the job duties listed in the original job 
description did not support the claim that the Beneficiary would be employed in a managerial capacity 
and therefore asked the Petitioner to list the Beneficiary's typical managerial duties and the percentage 
of time he would allocate to each duty. The Director also instructed the Petitioner to provide an 
organizational chart depicting the organizational structure and staffing levels as well as the 
Beneficiary's department and staffing within the organization. 
In response, the Petitioner provided an updated organizational chart that was nearly identical to the 
chart submitted in support of the petition and stated that the Beneficiary will have eight direct 
subordinates and "10+ indirect reports." The updated list of subordinates did not include a technical 
lead position. The Petitioner also resubmitted the Beneficiary's job duty breakdown. 
B. Analysis 
In this instance, the Petitioner has not provided sufficient evidence demonstrating that the Beneficiary 
will be employed in a managerial capacity. 
First, despite being instructed to supplement the record with a more detailed job description itemizing 
the Beneficiary's managerial duties and the percentage of time he will allocate to each duty, the 
Petitioner resubmitted the same job description, which did not adequately distinguish between 
managerial and non-managerial job duties and did not allocate a percentage of time to individual job 
duties. For instance, the Beneficiary's job duty breakdown shows that 30% of his time would be 
allocated to enhancing client engagement and satisfaction, a job category that includes communicating 
with "stakeholders" at the client organization, assessing client satisfaction, participating in client 
meetings, and serving as "first escalation point of contact" for client services. Without further 
information, these tasks cannot be readily deemed managerial. Likewise, the Petitioner's discussion 
of the Beneficiary's role with respect to adding new projects to existing accounts and acquiring new 
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clients includes more job duties that also may not qualify as managerial. Namely, the Petitioner 
indicated that there is a sales element to the Beneficiary's position requiring him to engage in various 
communications with the client to acquire new business and solve problems, meet with prospective 
clients and present the Petitioner's business model, explore "new territories as part of global 
expansion," and negotiate contracts. 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). Because the Petitioner did not comply with the RFE 
which asked the Petitioner to allocate a percentage of time to individual job duties, we are unable to 
assess what portion of the Beneficiary's time would be spent performing non-managerial tasks. 
Failure to submit requested evidence that precludes a material line of inquiry shall be grounds for 
denying the petition. 8 C.F.R. § 103.2(b)(14). 
On appeal, the Petitioner asserts that the Director "ignored to apply [sic] basic rule of interpretation" 
and asked that we use "the basic principles of interpretation" on appeal. However, these broad 
references are confusing and preclude an understanding of whether the "basic rule" and "the basic 
principles" are one and the same or whether these terms have different meanings. The Petitioner has 
not specifically defined these terms in its legal brief, nor has it pointed to legal authority, such as a 
statute, regulation, or binding USCIS policy, that mandates the application of a "basic rule" or "basic 
principles" in making a determination regarding the Petitioner's eligibility for the immigration benefit 
sought herein. 
The Petitioner also restates portions of the Beneficiary's job description, claiming that the listed tasks 
"are considered managerial" in the IT industry. However, the Petitioner does not offer evidence in 
support of this claim. Instead, the Petitioner makes another confusing claim stating that "the 
[B]eneficiary will perform the task along with him [sic] team." The Petitioner does not specify which 
tasks the Beneficiary will perform alongside a "team," nor does it establish that the Beneficiary's 
performance of tasks alongside his subordinates, as the Petitioner indicates, supports the chief claim 
that the Beneficiary's proposed position would be in a managerial capacity. The Petitioner must 
support its assertions with relevant, probative, and credible evidence. See Matter of Chawathe, 25 
l&N Dec. 369, 376 (AAO 2010). As noted above, the Petitioner has not provided sufficient evidence 
demonstrating that the Beneficiary's time will be primarily allocated to tasks of a managerial nature. 
Further, although the Petitioner claimed 150 "current" employees at the time of filing, it has not 
provided an organizational chart depicting the Beneficiary's position within the context of a 150-
person staffing structure. Rather, the Petitioner's most recent organizational chart shows 26 
employees total, of which eight employees are depicted as the Beneficiary's subordinates. Despite 
claiming that the Beneficiary will oversee "10+ indirect reports" in addition to the eight subordinates, 
the Petitioner did not provide an organizational chart reflecting this staffing hierarchy. As noted 
above, the Petitioner must support its assertions with relevant, probative, and credible evidence. See 
id. Although the RFE instructed the Petitioner to provide a comprehensive staffing and management 
structure of the organization, the organizational chart included in the response was substantially 
similar to the chart that was originally submitted and shows only a limited cross section of the 
organization, accounting for approximately 17% of the 150-person workforce the Petitioner claimed 
at the time of filing. As previously noted, failure to submit requested evidence that precludes a 
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material line of inquiry shall be grounds for denying the petition. 8 C.F.R. § 103.2(b)(14). Without 
an accurate representation of the Petitioner's staffing and management structure, we are unable to 
gauge the Beneficiary's placement within the context of the broader organizational hierarchy and 
therefore cannot conclude that the Beneficiary's position is consistent with someone who will manage 
the organization, or a department, subdivision, function, or component within the organization. 
We also note that the list of the Beneficiary's subordinates' salaries shows that three subordinates 
receive annual compensation at a rate that is equal to or greater than that of the Beneficiary. This 
anomaly, particularly when considered alongside the previously described evidentiary deficiencies, 
further detracts from the Petitioner's claim that these employees are subordinate to the Beneficiary 
and that the Beneficiary's proposed position will be in a managerial capacity. If USCIS finds reason 
to believe that an assertion stated in the petition is not true, USCIS may reject that assertion. See, e.g., 
Section 204(b) of the Act, 8 U.S.C. § 1154(b); Anetekhai v. I NS, 876 F.2d 1218, 1220 (5th Cir. 1989); 
Lu-Ann Bakery Shop, Inc. v. Nelson, 705 F. Supp. 7, 10 (D.D.C. 1988); Systronics Corp. v. INS, 153 
F. Supp. 2d 7, 15 (D.D.C. 2001). 
IV. CONCLUSION 
The Petitioner has not established that it has a qualifying relationship with the Beneficiary's foreign 
employer and that the Beneficiary will be employed in the United States in a managerial capacity. 
Because these bases for dismissal of the appeal are dispositive, we decline to reach and hereby reserve 
the issue pertaining to the Beneficiary's employment abroad. 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 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). 
Accordingly, the appeal will be dismissed for the above stated reasons. 
ORDER: The appeal is dismissed. 
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