dismissed L-1A Case: Jewelry

US. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Administrative Appeals Ofice, MS 2090 
Washington, DC 20529-2090 
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File: WAC 0 1 13 7 5493 7 Office: CALIFORNIA SERVICE CENTER Date: JUN Ofim 
Petition: 
 Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(15)(L) of the Immigration 
and Nationality Act, 8 U.S.C. 5 1 10 l(a)(15)(L) 
IN BEHALF OF PETITIONER: 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to 
the office that originally decided your case. Any further inquiry must be made to that office. 
If you believe the law was inappropriately applied or you have additional information that you wish to have 
considered, you may file a motion to reconsider or a motion to reopen. Please refer to 8 C.F.R. 5 103.5 for 
the specific requirements. All motions must be submitted to the office that originally decided your case by 
filing a Form I-290B, Notice of Appeal or Motion, with a fee of $585. Any motion must be filed within 30 
days of the decision that the motion seeks to reconsider or reopen, as required by 8 C.F.R. 5 103.5(a)(l)(i). 
uhn F. Grissom 
Acting Chief, Administrative Appeals Office 
WAC 01 137 54937 
Page 2 
DISCUSSION: The Director, California Service Center, denied the petition for a nonimrnigrant 
visa. The director subsequently certified the denial to the Administrative Appeals Office (AAO) for 
review. The AAO will affirm the director's decision.' 
The petitioner seeks to employ the beneficiary temporarily in the United States as an L-1A 
nonimmigrant intracompany transferee pursuant to section 101 (a)(15)(L) of the Immigration and 
Nationality Act (the Act), 8 U.S.C. tj 1101(a)(15)(L). The U.S. petitioner, a corporation organized in 
the State of California, seeks to employ the beneficiary as president of its new office. The petitioner 
claims that it is the subsidiary of Darya Gold & Jewel located in Shiraz, Iran. 
The director denied the petition on the basis of four independent grounds of ineligibility: 1) the 
petitioner failed to establish that the beneficiary is qualified for a visa under the L nonimrnigrant 
classification pursuant to 31 C.F.R. 560.505(c); 2) the petitioner had failed to establish that the 
petitioner and the organization that employed the beneficiary in Iran had a qualifying relationship; 
3) the petitioner failed to establish that the beneficiary was employed abroad in a qualifying 
managerial or executive capacity; and 4) the petitioner failed to establish that it had obtained 
sufficient physical premises to house its new U.S. business. 
The AAO has not received a brief or additional evidence addressing any of the director's grounds for 
denial. 
To establish eligibility for the L-1 nonimmigrant visa classification, the petitioner must meet the 
criteria outlined in section 10 1 (a)(15)(L) of the Act. Specifically, a qualifying organization must 
have employed the beneficiary in a qualifying managerial or executive capacity, or in a specialized 
knowledge capacity, for one continuous year within three years preceding the beneficiary's 
application for admission into the United States. 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, executive, or specialized knowledge capacity. 
The regulation at 8 C.F.R. tj 214.2(1)(3) states that an individual petition filed on Form 1-129 shall be 
accompanied by: 
(i) 
 Evidence that the petitioner and the organization which employed or will employ 
the alien are qualifying organizations as defined in paragraph (l)(l)(ii)(G) of this 
section. 
1 
 It is noted that, according to California State corporate records, the petitioner's corporate status in California has been 
suspended. See http://kepler.ss.ca.gov/corpdata~ShowAllList?QueCoNumbe~C23O4O35 (last accessed May 26, 
2009). Therefore, the petitioner can no longer be considered a legal entity authorized to conduct business in the United 
States. In order to meet the definition of "qualifying organization," there must be a United States employer. See 8 C.F.R. 
2 14.2(l)(l)(ii)(G)(2). 
WAC 01 137 54937 
Page 3 
(ii) 
 Evidence that the alien will be employed in an executive, managerial, or 
specialized knowledge capacity, including a detailed description of the services to 
be performed. 
(iii) 
 Evidence that the alien 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. 
(iv) 
 Evidence that the alien's prior year of employment abroad was in a position that 
was managerial, executive or involved specialized knowledge and that the alien's 
prior education, training, and employment qualifies himher to perform the 
intended services in the United States; however, the work in the United States 
need not be the same work which the alien performed abroad. 
In addition, the regulation at 8 C.F.R. § 214.2(1)(3)(~) states that if the petition indicates that the 
beneficiary is coming to the United States as a manager or executive to open or to be employed in a 
new office, the petitioner shall submit evidence that: 
(A) 
 Sufficient physical premises to house the new office have been secured; 
(B) 
 The beneficiary has been employed for one continuous year in the three year 
period preceding the filing of the petition in an executive or managerial capacity and 
that the proposed employment involved executive or managerial authority over the 
new operation; and 
(C) 
 The intended United States operation, within one year of the approval of the 
petition, will support an executive or managerial position as defined in paragraphs 
(l)(l)(ii)(B) or (C) of this section, supported by information regarding: 
(I) 
 The proposed nature of the office describing the scope of the entity, its 
organizational structure, and its financial goals; 
(2) 
 The size of the United States investment and the financial ability of the 
foreign entity to remunerate the beneficiary and to commence doing 
business in the United States; and 
(3) The organizational structure of the foreign entity. 
The first issue in the present matter is whether the petitioner established that the beneficiary is 
qualified for a visa under the L nonimmigrant classification. The director determined that, given the 
beneficiary's ownership of an Iranian entity, the beneficiary would be coming to the United States as 
an employee of that entity, which the director determined as being prohibited by the provisions cited 
in 3 1 C.F .R. 5 560.505(c). The petitioner has not submitted a rebuttal of the director's conclusion. 
WAC 01 137 54937 
Page 4 
On March 15, 1995, the President declared a national emergency with respect to Iran pursuant to the 
International Emergency Economic Powers Act, 50 U.S.C. $ 1701, to address "the unusual and 
extraordinary threat to the national security, foreign policy, and economy of the United States" 
constituted by the Government of Iran, including its support for international terrorism, efforts to 
undermine the Middle East peace process, and acquisition of weapons of mass destruction and the 
means to deliver them. E.O. 12957, 60 Fed. Reg. 14615 (March 17, 1995). The President 
subsequently issued Executive Order 12959 imposing more comprehensive sanctions to further 
respond to the Iranian threat. 60 Fed. Reg. 24757 (May 9, 1995). Finally, on August 19, 1997, the 
President issued Executive Order 13059 to consolidate and clarify the previous orders. 62 Fed. Reg. 
4453 1 (August 21, 1997). Executive Order 13059 continues in effect. See 70 Fed. Reg. 12581 
(March 10,2005) ("Continuation of the National Emergency With Respect to Iran"). 
Executive Order 13059 and the regulations relating to Iranian economic sanctions must be applied 
when a United States petitioner requests nonimmigrant classification under section 10 1 (a)(15)(L) of 
the Act for an Iranian citizen or national. The executive order specifically prohibits "the importation 
into the United States . . .of any goods or services of Iranian origin." E.O. 13059 at tj 1. Executive 
Order 13059 also prohibits "any transaction or dealing by a United States person . . . related to . . . 
services of Iranian origin." Id. tj 2(d). The executive order defines a "United States person" as "any 
United States citizen, permanent resident alien, entity organized under the laws of the United States 
(including foreign branches), or any person in the United States." Id. 8 4(c). 
In a policy memorandum dated January 15, 1998, the Immigration and Naturalization Service (INS) 
Office of General Counsel advised that the Executive Order 13059 requires the denial, or the 
revocation of an approval, of visa petitions predicated on the employment of Iranian citizens residing 
in Iran. See Lori Scialabba, INS Acting General Counsel, "Prohibition on Employment-Based 
Immigration from Iran," HQCOU 7018.5P (Jan. 15, 1998). Relying on the United States Department 
of Treasury, Office of Foreign Assets Control (OFAC) interpretation of the implementing 
regulations, the memorandum states: "Given OFAC's holding that an employer in the United States 
may not lawfully make a binding offer of employment to an Iranian national residing in Iran, we 
believe that the Service should deny an employment-based immigrant or nonimmigrant visa petition 
filed by an employer seeking to do so." (Emphasis added.) 
On April 26, 1999, the Office of Foreign Assets Control subsequently amended the regulations to 
allow certain Iranian-origin services in the United States related to specific visa categories, including 
the L nonimmigrant visa. 
 64 Fed. Reg. 20168 (April 26, 1999). 
 The regulation at 31 C.F.R. 
§ 560.505(c) states the following: 
Persons otherwise qualified for a visa under categories E-2 (treaty investor), H 
(temporary worker), L (intra-company transferees) and all immigrant visa categories 
are authorized to carry out in the United States those activities for which such a visa 
has been granted by the U.S. State Department, provided that the persons are not 
coming to the United States to work as an agent, employee or contractor of the 
Government of Iran or a business entity or other organization in Iran. 
WAC 01 137 54937 
Page 5 
(Emphasis added.) 
In the present matter, the petitioner claims that it is a subsidiary of an Iranian business entity and that 
the beneficiary is an Iranian citizen, who was previously employed by the Iranian business in Shiraz, 
Iran. According to the petitioner's assertions, the beneficiary would be coming to the United States 
to work as the president of an Iranian-owned business entity. Accordingly, as properly determined 
by the director, there is a clear nexus between the beneficiary and an Iranian-based business, 
organization, or government entity. 
As the petitioner has not submitted a rebuttal to the director's finding, the AAO concludes that the 
petitioner is precluded by Executive Order 13059 from offering employment to the beneficiary. 
Therefore, the AAO hereby affirms the director's decision on this initial basis. 
The second issue in this proceeding is whether the petitioner and the foreign organization are 
qualifying organizations as defined by 8 C.F.R. 5 214.2(1)(l)(ii)(G). The regulation defines the term 
"qualifying organization" as a United States or foreign firm, corporation, or other legal entity which: 
(I) Meets exactly one of the qualifying relationships specified in the definitions of a parent, 
branch, affiliate or subsidiary specified in paragraph (l)(l)(ii) of this section; 
(2) Is or will be doing business (engaging in international trade is not required) as an 
employer in the United States and in at least one other country directly or through a parent, 
branch, affiliate, or subsidiary for the duration of the alien's stay in the United States as an 
intracompany transferee; and 
(3) Otherwise meets the requirements of section 101 (a)(15)(L) of the Act. 
Additionally, the regulation at 8 C.F.R. 5 214.2(1)(l)(ii) provides: 
(I) "Parent" means a firm, corporation, or other legal entity which has subsidiaries. 
(J) "Branch" means an operating division or office of the same organization housed in a 
different location. 
(IS) "Subsidiary" means a firm, corporation, or other legal entity of which a parent owns, 
directly or indirectly, more than half of the entity and controls the entity; or owns, directly or 
indirectly, half of the entity and controls the entity; or owns, directly or indirectly, 50 
percent of a 50-50 joint venture and has equal control and veto power over the entity; or 
owns, directly or indirectly, less than half of the entity, but in fact controls the entity. 
(L) "Affiliate" means 
WAC 01 137 54937 
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(I) One of two subsidiaries both of which are owned and controlled by the same parent 
or individual, or 
(2) One of two legal entities owned and controlled by the same group of individuals, 
each individual owning and controlling approximately the same share or proportion of 
each entity, or 
(3) In the case of a partnership that is organized in the United States to provide 
accounting services along with managerial andlor consulting services and that markets 
its accounting services under an internationally recognized name under an agreement 
with a worldwide coordinating organization that is owned and controlled by the member 
accounting firms, a partnership (or similar organization) that is organized outside the 
United States to provide accounting services shall be considered to be an affiliate of the 
United States partnership if it markets its accounting services under the same 
internationally recognized name under the agreement with the worldwide coordinating 
organization of which the United States partnership is also a member. 
The 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 for purposes of this visa classification. Matter of Church Scientology International, 19 I&N 
Dec. 593 (BIA 1988); see also Matter of Siemens Medical Systems, Inc., 19 I&N Dec. 362 (BIA 
1986); Matter of Hughes, 18 I&N Dec. 289 (Cornrn. 1982). In context of this visa petition, 
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 
the establishment, management, and operations of an entity. Matter of Church Scientology, 19 I&N 
Dec. at 595. 
The director found that while the documentation seems to indicate that the beneficiary, in fact, owns 
and controls the U.S. and foreign entities, the documents showing ownership of the U.S. entity are 
incomplete. The director specifically noted that the stock certificates allegedly issued by the 
petitioner were unsigned and that the Notice of Transaction Pursuant to Corporations Code Section 
25 102(f) failed to show the corporation's total offering amounts. As a result of these significant 
deficiencies, the director concluded that the petitioner failed to show common ownership and control 
between the U.S. and foreign entities. 
The AAO acknowledges that the petitioner provided a signed copy of its March 5, 2001 meeting 
minutes signifying its intent to distribute 70% of its authorized shares to the foreign entity and 30% 
of its shares to the beneficiary. However, the petitioner has not provided any statements or evidence 
rebutting the significant deficiencies pointed out in the director's decision. Therefore, the AAO will 
affirm the director's second ground as a basis for ineligibility. 
The third issue in this proceeding is whether the petitioner established that the beneficiary was 
employed abroad in a qualifying managerial or executive capacity. The director found that the 
WAC 01 137 54937 
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petitioner failed to provide a sufficient job description delineating the beneficiary's specific tasks 
during his employment with the foreign entity. The director further found no evidence to support the 
petitioner's claim as to the number of employees and contractors the beneficiary directed during his 
employment abroad. Again, due to the petitioner's failure to address the director's adverse findings 
on the issue of the beneficiary's foreign employment, the petitioner has not overcome the ultimate 
finding. Therefore, the AAO will affirm the director's third ground as a basis for denial. 
The fourth issue in this proceeding is whether the petitioner had secured sufficient physical premises 
to house its new office per 8 C.F.R. 5 214.2(1)(3)(v)(A). The director determined that, in light of the 
petitioner's claim that it was still in the process of locating and leasing a location for its intended 
retail business, it had had failed to satisfy the regulatory requirement discussed herein. However, the 
AAO has conducted its own independent review of the record and finds that the record contains 
sufficient evidence that business premises had been secured at the time of filing. Specifically, the 
record shows that the Form 1-129 was filed on March 16,2001. The record also contains a copy of a 
lease signed by the petitioner and the leasing party, showing that the one-year lease term was due to 
commence on March 15, 2001, the day prior to the filing of the petition. Thus, while the petitioner 
may have been in the process of securing the leased premises as of March 9, 2001, when counsel 
wrote the letter that was submitted in support of the petition, it appears that the premises had been 
secured at the time of filing. Therefore, the AAO hereby withdraws the fourth ground as a basis for 
the director's denial. 
Notwithstanding the AAO's withdrawal of one of the director's grounds for denial, the record clearly 
establishes that the director properly cited three other grounds for denial. As previously stated, the 
petitioner has not submitted any statements or evidence rebutting the director's sound reasoning. 
Therefore the director's decision will be affirmed on the basis of three out of the four grounds as 
discussed herein. 
Additionally, by virtue of the beneficiary's claimed ownership of the U.S. petitioner, it appears more 
likely than not that the beneficiary would not be an "employee" of the United States operation. As 
explained in 8 C.F.R. 5 214.2(1), the petitioner must establish that the beneficiary will be "employed" 
in an executive or managerial capacity. It is noted that "employer," "employee," and "employed" are 
not specifically defined for purposes of the Act even though these terms are used repeatedly in the 
context of addressing the multinational executive and managerial immigrant classification. Section 
203(b)(l)(C), 8 U.S.C. 5 1 153(b)(l)(C), requires beneficiaries to have been "employed" abroad and to 
render services to the same "employer" in the United States. Further, section 101(a)(44), 8 U.S.C. 
5 1 10 1 (a)(44), defines both managerial and executive capacity as an assignment within an organization 
in which an "employee" performs certain enumerated qualifying duties. Finally, the specific definition 
of "managerial capacity" in section 10 1 (a)(44)(A), 8 U.S.C. tj 1 101 (a)(44)(A), refers repeatedly to the 
supervision and control of other "employees." Neither the legacy Immigration and Naturalization 
Service nor U.S. Citizenship and Immigration Services (USCIS) has defined the terms "employee," 
"employer," or "employed" by regulation for purposes of the multinational executive and managerial 
immigration classification. See, e.g., 8 C.F.R. 4 204.5 and 8 C.F.R. 5 214.2(1). Therefore, for 
purposes of this immigrant classification, these terms are undefined. 
WAC 01 137 54937 
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The Supreme Court of the United States has determined that where a federal statute fails to clearly 
define the term "employee," courts should conclude "that Congress intended to describe the 
conventional master-servant relationship as understood by common-law agency doctrine." 
Nationwide Mutual Ins. Co. v. Darden, 503 U.S. 318, 322-323 (1992) (hereinafter "Darden") 
(quoting Community for Creative Non-Violence v. Reid, 490 U.S. 730 (1989)). That definition is as 
follows: 
In determining whether a hired party is an employee under the general common law 
of agency, we consider the hiring party's right to control the manner and means by 
which the product is accomplished. Among the other factors relevant to this inquiry 
are the skill required; the source of the instrumentalities and tools; the location of the 
work; the duration of the relationship between the parties; whether the hiring party 
has the right to assign additional projects to the hired party; the extent of the hired 
party's discretion over when and how long to work; the method of payment; the hired 
party's role in hiring and paying assistants; whether the work is part of the regular 
business of the hiring party; whether the hiring party is in business; the provision of 
employee benefits; and the tax treatment of the hired party. 
Darden, 503 U.S. at 323-324; see also Restatement (Second) ofAgency 5 220(2) (1958); Clackamas 
Gastroenterology Associates, P.C. v. Wells, 538 U.S. 440 (2003) (hereinafter "Clackamas"). As the 
common-law test contains "no shorthand formula or magic phrase that can be applied to find the 
answer, . . . all of the incidents of the relationship must be assessed and weighed with no one factor 
being decisive." Darden, 503 U.S. at 324 (quoting NLRB v. United Ins. Co. of America, 390 U.S. 
254,258 (1968). 
Within the context of immigrant petitions seeking to classify the beneficiary as a multinational 
manager or executive, when a worker is also a partner, officer, member of a board of directors, or a 
major shareholder, the worker may only be defined as an "employee" if he or she is subject to the 
organization's "control." See Clackamas Gastroenterology Associates, P. C. v. Wells, 53 8 U.S. 440, 
449-450 (2003); see also New Compliance Manual at 5 2-III(A)(l)(d). Factors to be addressed in 
determining whether a worker, who is also an owner of the organization, is an employee include: 
Whether the organization can hire or fire the individual or set the rules and 
regulations of the individual's work. 
Whether and, if so, to what extent the organization supervises the individual's 
work. 
Whether the individual reports to someone higher in the organization. 
Whether and, if so, to what extent the individual is able to influence the 
organization. 
WAC 01 137 54937 
Page 9 
Whether the parties intended that the individual be an employee, as expressed 
in written agreements or contracts. 
Whether the individual shares in the profits, losses, and liabilities of the 
organization. 
Clackamas, 538 U.S. at 449-450 (citing New Compliance Manual). 
Applying the Darden and Clackamas tests to this matter, the petitioner has not established that the 
beneficiary would be an "employee" employed in a managerial or executive capacity. As explained 
above, the petitioner is a corporation, which the petitioner claims is ultimately owned and controlled 
by the beneficiary, who purports to assume a role as the petitioner's principal. There is no evidence 
that anyone other than the beneficiary himself is in a position to exercise any control over the work 
to be performed by the beneficiary. As such, it appears the beneficiary is the employer for all 
practical purposes. He will control the organization; set the rules governing his work; and share in 
all profits and losses. Therefore, the petitioner has not established that an employer/employee 
relationship exists between the beneficiary and the petitioner. For this additional reason this petition 
cannot be approved. 
An application or petition that fails to comply with the technical requirements of the law may be 
denied by the AAO even if the Service Center does not identify all of the grounds for denial in the 
initial decision. See Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d 1025, 1043 (E.D. 
Cal. 2001), afd. 345 F.3d 683 (9th Cir. 2003); see also Dor v. INS, 891 F.2d 997, 1002 n. 9 (2d Cir. 
1989)(noting that the AAO reviews appeals on a de novo basis). 
The petition will be denied for the above stated reasons, with each considered as an independent and 
alternative basis for denial. In visa petition proceedings, the burden of proving eligibility for the 
benefit sought remains entirely with the petitioner. Section 291 of the Act, 8 U.S.C. fj 1361. Here, 
that burden has not been met. 
ORDER: 
 The decision of the director is affirmed. The petition is denied.