dismissed L-1A Case: Manufacturing

U.S. Citizenship 
and Immigration 
Services 
MATTER OF S-Q-S-USA-UK, LLC 
APPEAL OF VERMONT SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: JAN. 10,2017 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a manufacturing and packaging service company, seeks to temporarily employ the 
Beneficiary as the manufacturing and production director under the L-1 A 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, Vermont Service Center, denied the petition. The Director concluded that the 
Petitioner did not subinit sufficient evidence to establish that the Beneficiary would be employed in 
the United States in a managerial or executive capacity. 
The matter is now before us on appeal. ·In support of the appeal, the Petitioner submits a brief 
disputing the basis for denial. 
Upon de novo review, we will dismiss the appeal. 
I. LEGAL FRAMEWORK 
To establish eligibility for the L-1 nonimmigrant visa classification, a qualifying organization must 
have employed the Beneficiary in a managerial or executive capacity, or in a specialized knowledge 
capacity, for 1 continuous year within 3 years preceding the Beneficiary's application for admission 
into the United States. Section 101(a)(l5)(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, executive, or specialized knowledge capacity. I d. 
The regulation at 8 C.F.R. § 214.2(1)(3) states that an individual petition filed on Form 1-129, 
Petition for a Nonimmigrant Worker, 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) ofthis section. 
Matter ofS-Q-S-USA-UK, LLC 
(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 him/her to perform 
the intended s~rvices in the United States; however, the work in the United 
States need not be the same work which the alien performed abroad. 
II. U.S. EMPLOYMENT IN A MANAGERIAL OR EXECUTIVE CAPACITY 
The Director denied the petition based on a finding that the Petitioner did not establish that the 
Beneficiary will be employed in a managerial or executive capacity. The Petitioner does not claim 
that the Beneficiary will be employed in a managerial capacity. Therefore, we restrict our analysis 
to whether the Beneficiary will be employed in an executive capacity. 
Section 101(a)(44)(B) of the Act, 8 U.S.C. § 1101(a)(44)(B), defines the term "executive capacity" 
as "an assignment within an organization in which the employee primarily": 
(i) directs the management of the organization or a major component or function 
of the organization; 
(ii) establishes the goals and policies of the organization, component, or function; 
(iii) exercises wide latitude in discretionary decision-making; and 
(iv) receives only general supervision or direction from higher-level executives, 
the board of directors, or stockholders of the organization. 
If staffing levels are used as a factor in determining whether an individual is acting in a managerial 
or executive capacity, U.S. Citizenship and Immigration Services (USCIS) must take into account 
the reasonable needs of the organization, in light of the overall purpose and stage of development of 
the organization. See section 101 (a)( 44 )(C) of the Act. 
The Petitioner filed the Form I-129 on May 12, 2015 claiming that it was established in 2006 and 
that it currently has no employees or earnings. In a supplemental explanation the Petitioner stated 
that its activities in the United States have been limited as a result of the recession and that 
"resurgence in the economy" is the reason for the Petitioner's current desire to expand its U.S. 
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Matter ojS-Q-S-USA-uK, LLC 
operation. At part 9, item 3 of the petition, the Petitioner stated that the Beneficiary "is responsible 
for ensuring that the fastener and packaging products are produced in an accurate and efficient in 
[sic] accord with precise specifications and processes." The Petitioner added that the Beneficiary 
would also "reach[] beneficial arrangements" to obtain contractors and facilities that would best 
meet the demands of the company's operation. 
After reviewing the record, the Director issued a request for evidence (RFE) informing the Petitioner 
that it did not provide sufficient evidence to establish that it would employ the Beneficiary in an 
executive capacity. The Director offered the Petitioner an opportunity to resolve this evidentiary 
deficiency by submitting, in part, a statement describing the Beneficiary's proposed executive job 
duties and the percentage of time he would allocate to each job duty and stating how the Beneficiary 
would meet each prong of the four-prong definition of executive capacity. The Director also asked 
the Petitioner to provide evid~nce of employee wages and job duties. 
In response, the Petitioner provided a statement claiming that "[t]he majority of [the Beneficiary's] 
time would be spent overseeing [the Petitioner's] research and development, manufacturing and 
production activities" and that his typical daily job duties would include engineering metal parts, 
developing product specifications, sending emails, "holding Skype or telephone conferences with the 
onsite manager, [and] acting as a liaison with clients and engineering consultants." The Petitioner 
noted that the Beneficiary, in his capacity as majority shareholder of both the U.S. and foreign 
entities, has ultimate decision-making authority with regard to all business matters. The Petitioner 
did not provide any employee tax documents for 2014 or 2015, indicating that it did not incur 
"U[.]S[.] tax liability based upon the UK business activities" of its foreign subsidiary and therefore 
did not pay U.S. income taxes for those years. In a separate statement the Petitioner provided a brief 
history explaining how the Petitioner and its foreign subsidiary came to be established and discussed 
the business activities the foreign entity has conducted abroad. The Petitioner also provided 3-, 5-, 
and 10-year business plans, dated August 28, 2014, explaining the Petitioner's long-term objectives 
in expanding its business in the United States. The 3-year plan states that the Petitioner would 
conduct its business as a home office for the first year or two of its operations and further stated that 
its directors, including the Beneficiary, would be "hands on in all departments \Vorking long hours to 
stabilise [sic] grov.rth." 
In addition, the Petitioner provided organizational charts depicting its operation and corporate 
structure. The chart depicting U.S. operations shows the Beneficiary and as its 
director and manager, respectively. Although the chart shows offices in the States of Michigan and 
Florida, it indicates that the Petitioner's operations, including an engineering facility and a 
packing/kitting facility, are in Florida. The chart also shows a head office connected to both the 
Florida and Michigan locations and indicates that the head office consists of sales/marketing, 
finance, engineering, UK operations, and administration. The second chart, titled "Corporate," 
indicates that the Petitioner's U.S. operations would be divided into five segments - production 
engineering, business development, infrastructure and IT, sales and marketing, and finance. The 
Petitioner also provided documents titled "Directors Management Review Meetings," which list the 
various agenda items that the Beneficiary and his co-worker, considered and handled 
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Matter ofS-Q-S-USA-UK, LLC · 
between 2010 and 2015 in an effort to expand its operations in the United States. The Petitioner did 
not, however, expressly state what job duties the Beneficiary would be assigned under an approved 
petition or assign specific time allocations to the job duties listed in the original supporting 
statement, where the Petitioner indicated that the Beneficiary would oversee the company's research 
and development and manufacturing and production functions and further claimed that the 
Beneficiary would carry out nonexecutive functions, such as engineering metal parts, developing 
product specifications, and communicating with clients and engineering consultants in his capacity 
as liaison. 
The Director determined that neither the Beneficiary's job description nor the size and scope of the 
Petitioner lead to the conclusion that the Beneficiary would be employed in an executive capacity. 
Upon review of the petition and the evidence of record, including materials submitted in support of 
the appeal, we conclude that the Petitioner has not established that the Beneficiary would be 
employed in an executive capacity. 
When examining the executive capacity of the Beneficiary, we will look first to the description of 
the job duties. See 8 C.F.R. § 214.2(1)(3)(iv). Published case has determined that the duties 
themselves will reveal the true nature of the beneficiary's employment. Fedin Bros. Co., Ltd. v. 
Sava, 724 F. Supp. 1103, 1108 (E.D.N. Y. 1989), affd, 905 F.2d 41 (2d. Cir. 1990). Therefore, we 
look for a job description that clearly describes the Beneficiary's proposed job duties. 
The definition of executive capacity has two parts. First, the Petitioner must show that the 
Beneficiary performed certain high-level responsibilities. Champion World, Inc. v. INS, 940 F.2d 
1533 (9th Cir. 1991) (unpublished table decision). Second, the Petitioner must prove that the 
Beneficiary would primarily be engaged in executive duties, as opposed to ordinary operational 
activities alongside the company's other employees. See Family Inc. v. USCIS, 469 F.3d 1313, 1316 
(9th Cir. 2006); Champion World, 940 F.2d 1533. 
In the present matter, the Petitioner did not provide a specific list of the Beneficiary's proposed 
executive job duties as requested in the RFE. Instead, the Petitioner's RFE response contains notes 
from numerous directors' meetings, which preceded the filing of the petition and which listed 
various actions that were assigned to the Beneficiary and his co-worker, seemingly in an effort to 
further and eventually expand the Petitioner's operations. While the Petitioner states that the 
Beneficiary will assume the top-most position with the organizational hierarchy and make 
discretionary decisions on the Petitioner's behalf, neither h,is placement within the organization nor 
his decision-making authority would be sufficient to establish that the nature of the Beneficiary's 
underlying job duties would be primarily that of an executive. We note that the actual duties 
themselves reveal the true nature of the employment. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. at 
1108, aff'd, 905 F.2d 41. Here, the Petitioner focuses on the Beneficiary's use of discretionary 
authority and his organizational placement without specifying what types of executive job duties the 
Beneficiary would typically carry out on a daily basis. Further, as previously noted, the information 
in the Petitioner's initial supporting statement indicates that an unspecified portion of the 
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Matter ofS-Q-S-USA-UK, LLC 
Beneficiary's time would be allocated to such nonexecutive functions as engineering metal parts, 
developing product specifications, and communicating with clients and engineering consultants. In 
addition, while the same supporting statement indicates that the Beneficiary would "oversee" various 
other departments within the organization, the fact that the Petitioner claimed no employees or 
contractors at the time the petition was filed indicates that such oversight is a projection of tasks that 
the Beneficiary would perform sometime in the future, after a staff of workers become available to 
perform the job duties within the departments the Beneficiary would oversee. 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, e.g, Matter ofll1ichelin Tire Corp., 17 I&N Dec. 248 (Reg'l 
Comm'r 1978); ;uatter of Katigbak, 14 I&N Dec. 45, 49 (Comm'r 1971). 
On appeal the Petitioner compares itself to a new office because, although it was established in 2006, 
it has experienced "limited activity" since then. However, we note that the Petitioner did not request 
that the Beneficiary's position be considered under the new office regulations at 8 C.F.R. § 
214.2(l)(3)(v) on Form 1-129, L Classification Supplement, where it indicatec! that the Beneficiary 
would not be coming to the United States to open a new office. The Petitioner's claim on appeal that 
it qualifies as a new office constitutes a material change to the initial petition. A petitioner may not 
make material changes to a petition in an effort to make a deficient petition conform to USCIS 
requirements. See }'vfatter of Izummi, 22 I&N Dec. 169, 176 (Assoc. Comm'r I 998). 
Further, the statutory definition of the term "executive capacity" focuses on a person's elevated 
position within a complex organizational hierarchy, including major components or functions of the 
organization, and that person's authority to direct the organization. Section 101(a)(44)(B) of the 
Act, 8 U.S.C. § 1101(a)(44)(B). Under the statute, a beneficiary must have the ability to "direct the 
management" and "establish the goals and policies" of that organization. Inherent to the definition, 
the organization must have a subordinate .level of managerial employees for a beneficiary to direct 
and a beneficiary must primarily focus on the broad goals and policies of the organization rather than 
the day-to-day operations of the enterprise. An individual will not be deemed an executive under the 
statute simply because they have an executive title or because they "direct" the enterprise as the 
owner or sole managerial employee. A beneficiary must also exercise "wide latitude in discretionary 
decision making" and recei ye only "general supervision or direction from higher level executives, 
the board of directors, or stockholders of the organization." !d. 
The Petitioner stated that it did not have any employees at the time of filing, and was therefore not 
comprised of a complex organizational hierarchy. Rather, the organizational charts in the record 
show that the Beneficiary and his one prospective subordinate would be the Petitioner's only two · 
employees. While the Petitioner's business plans indicate that the Petitioner plans to hire additional 
employees in the future, as demonstrated in the Petitioner's proposed organizational charts, a visa 
petition may not be approved based on speculation of future eligibility or after the Petitioner or 
Beneficiary becomes eligible under a new set of facts. See, e.g, Matter of Michelin Tire Corp., I 7 
I&N Dec. 248; Matter of Katigbak, 14 I&N Dec. at 49. 
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Matter ofS-Q-S-USA-liK, LLC 
On appeal, the Petitioner submits a brief in which it contends that the definition of executive 
capacity does not require that the qualifying organization must be of a particular size and scope. The 
Petitioner then goes on to point to the various discretionary decisions that the Beneficiary will make, 
indicating that such authority is sufficient to classify the Beneficiary as an executive. While we do 
not dispute that the Beneficiary would have a high level of discretionary authority and would operate 
autonomously within the U.S. organization, these two characteristics alone are not suffident to 
establish that the Beneficiary would be employed in an executive capacity. As indicated above, a 
subordinate level of managerial employees is inherent to the definition of executive capacity, as this 
management . tier, along with other employees and/or contractors who would perform the 
organization's operational and administrative tasks, would elevate the Beneficiary's role within the 
organization to that of an executive whose primary concern would be to direct the management of 
the organization and focus on the organization's broad goals and policies rather than its day-to-day 
operations. 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 also, 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 International, at 604. 
In the present matter, the Petitioner neither claimed nor provided evidence to show that it employed 
a subordinate level of employees or had contractors perfOlming operational and administrative tasks 
at the time the petition was filed. It is therefore unclear how, with such a limited organizational 
structure, the Petitioner would have .the ability to relieve the Beneficiary from having to allocate his 
time to primarily operational and administrative tasks. While formulating the goals and policies of 
the organization may be one aspect of the Beneficiary's proposed position, the evidence indicates 
that this element \VOuld not be the Beneficiary's primary focus. Rather, the record indicates that the 
Petitibner's early stage of development would require the Beneficiary to carry out both executive 
and nonexecutive tasks and that the latter category of tasks would consume the primary portion of 
the Beneficiary's time until the Petitioner is able to advance to the next phase of development. As 
such, we cannot conclude that the Petitioner was ready and able to employ the Beneficiary in an 
executive capacity at the time of filing and on the basis of this adverse finding the instant petition. 
cannot be approved. 
Lastly, the Petitioner claims on appeal that USCIS approved an L-lA pet1t10n that was filed 
simultaneously by the same Petitioner on behalf of another employee. We note that each 
nonimmigrant petition filing is a separate proceeding with a separate record and a separate burden of 
proof. In making a determination of statutory eligibility, USCIS is limited to the information 
contained in that individual record of proceeding. 8 C.F .R. § 1 03.2(b )(16)(ii). In matters relating 
to a nonimmigrant visa petition validity involving the same petitioner, beneficiary, and underlying 
facts, USCIS will generally give some deference to a prior determination of eligibility. However, 
the mere fact that USCIS, by mistake or oversight, approved a visa petition on one occasion does not 
create an automatic entitlement to the approval of a separate petition of another visa. See, e.g., Royal 
Siam Corp. v. Chertoff, 484 F.3d 139, 148 (1st Cir 2007); Matter o[Church Scientology Int'l., 19 
I&N Dec. 593, 597 (Comm. 1988). 
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Matter ojS-Q-S-USA-UK, LLC 
In the present matter, the Director reviewed the record of proceeding and concluded that the 
petitioner was ineligible for the nonimmigrant visa based on the Petitioner's inability to establish 
eligibility. In both the RFE and the final denial, the Director clearly articulated the objective 
statutory and regulatory requirements and applied them to the case at hand. If the previous petition 
filed by the same Petitioner on behalf of a different beneficiary was approved based on the same 
minimal evidence as contained in the instant record of proceeding, the approval would constitute 
error on the part of the Director. Even if a service center Director had approved the nonimmigrant 
petition on behalf of the Beneficiary's proposed subordinate, we would not be bound to follow the 
contradictory decision of a service center. Louisiana Philharmonic Orchestra v. INS, 2000 WL 
282785 (E.D. La.), affd, 248 F.3d 1139 (5th Cir. 2001), cert. denied, 122 S.Ct. 51 (2001). 
III. EMPLOYER-EMPLOYEE RELATIONSHIP 
In addition, while not addressed by the Director, a remaining issue to be examined is whether the 
Petitioner established that tlie Beneficiary and the foreign entity had an employer-employee 
relationship at the time of the Beneficiary's claimed employment abroad and whether the Petitioner 
has such a relationship with the Beneficiary. ' · 
Section I01(a)(15)(L) ofthe Act states that only foreign nationals who were "employed" abroad and 
are coming to the United States "to continue to render services to the same employer or to an 
affiliate or subsidiary thereof' will merit classification as an intracompany transferee. The L-1 A 
classification allows a corporation or other legal entity (including its affiliate or subsidiary) to 
transfer a qualifying foreign employee to the United States, where he will be temporarily employed 
in a managerial or executive capacity. This is in contrast to provisions in the Act, such as section 
101(a)(15)(E), which permits the foreign national to file a nonimmigrant petition on behalf of 
himself or herself provided that the foreign national meets certain other conditions regarding a treaty . . 
trader or treaty investor. 
The factors of ownership and control are critical in determining whether the Beneficiary had an 
employer-employee relationship with his employer abroad and whether he has such a relationship 
with the Petitioner. See Clackamas Gastroenterology Assocs. P.C. v. Wells, 538 U.S. 440, 451 
(2003) (quoting Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318, 324 (I 992) ). 
In the matter at hand, the record indicates that Beneficiary directly owns and controls the majority of 
the Petitioner and the foreign entity where the Beneficiary has been employed. The record further 
shows that the Beneficiary assumed the top-most position within the foreign entity's organization 
and that the same would be true of the Beneficiary's proposed position with the Petitioner. The 
Petitioner claims that the Beneficiary was not and would not be subject to a higher authority in either 
of his respective positions. Thus, by virtue of owning the majority of the Petitioner and the foreign 
entity, thereby controlling both entities, the Beneficiary's employer-employee relationship \Vith 
either entity is compromised. For this additional reason, the appeal will be dismissed. 
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Matter ofS-Q-S-USA-UK, LLC 
IV. CONCLUSION 
The petition will be denied and the appeal dismissed for the above stated reasons, with each 
considered as an independent and alternative basis for the decision. 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. § 1361. Here, that burden has not been met. 
ORDER: The appeal is dismissed. 
Cite as Matter ofS-Q-S-USA-UK, LLC, ID# 126486 (AAO Jan. 10, 2017) 
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