dismissed L-1A Case: Marketing

U.S. Citizenship 
and Immigration 
Services 
MATTER OF P-W -, LLC 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: MAY 15,2018 
APPEAL OF CALIFORNIA SERVICE CENTER DECISION 
PETITION: FORM 1-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, describing itself as a marketing company, seeks to temporarily employ the 
Beneficiary as its managing director under the L-1 A nonimmigrant classification for intracompany 
transferees. Immigration and Nationality Act (the Act) section 101(a)(15)(L), 8 U.S.C. 
§ 1101(a)(I5)(L). The L-IA 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. 
On appeal, the Petitioner disputes the Director's decision and submits a brief in support of its 
contentions. 
Upon de novo review, we will dismiss the appeal. Although we find that the Petitioner submitted 
sufficient evidence to establish that the Beneficiary was employed abroad in a managerial or 
executive capacity, 1 we find that the Petitioner has not overcome the remaining ground for denial 
with regard to the Beneficiary's proposed employment. 
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 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. !d. The 
petitioner 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). 
1 We will withdraw the Director's finding with respect to the Beneficiary's foreign employment. 
Maller of P-W-, LLC 
II. U.S. EMPLOYMENT IN A MANAGERIAL CAPACITY 
In a supporting cover letter, the Petitioner stated that the Beneficiary will be employed in a 
managerial capacity and claimed that his duties would be "managerial in nature." The Petitioner did 
not claim that the proposed employment would be in an executive capacity; therefore, we will limit 
our discussion to the claim that the Beneficiary will be employed in a managerial capacity. 
"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. 
Based on the statutory definition of managerial capacity, the Petitioner must first show that the 
Beneficiary will perform certain high-level responsibilities. Champion World, Inc. v. INS, 940 F.2d 
1533 (9th Cir. 1991) (unpublished table decision). Second, the Petitioner must demonstrate that the 
Beneficiary will be primarily engaged in managerial duties, as opposed to ordinary operational 
activities alongside the Petitioner's other employees. See Family!nc. v. USCIS, 469 F.3d 1313, 
1316 (9th Cir. 2006); Champion World, 940 F.2d 1533. 
The description of the job duties must clearly describe 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(1)(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 the business. 
Accordingly, we will discuss evidence regarding the Beneficiary's job duties along with evidence of 
the nature of the Petitioner's business and its staffing levels. 
A Stalling 
If stalling levels are used as a factor in determining whether an individual is acting in a managerial 
capacity, we 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 in October 2016 claiming two employees. In support of the 
petition, the Petitioner submitted a business plan, which contained a "Milestones" timeline chart, a 
personnel plan, and an organizational chart. The organizational chart shows a 16+-person staff 
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Maller of P-W-, LLC 
headed by the managing director, who is depicted as overseeing four positions - (1) a general 
manager/creative director , (2) a Director" in Dubai , (3) a franchise 
manager, and (4) a second franchise manager. Each of these four positions would, in tum, oversee 
his or her own subordinate staff. The second franchise manager would oversee three franchise ' 
employees; the franchise manager would oversee two administrative employees ; the 
Director" would oversee . an undisclosed number of application developers , 
animators, modelers, and graphic designers; and the general manager/creative director would 
oversee an undisclosed number of sales and client service executives. 
The "Milestones" timeline chart indicated that most events that are critical to the Petitioner's 
operation (e.g ., hiring a sales and client services staff, attempting to sell products and services to 
prospective "top 5 clients, " and developing sales kits for the research and development team in 
Dubai) were not projected to commence until 2017. The Petitioner also indicated that transferring 
the money necessary to fund the U.S. operation , presumably a fundamental step prior to hiring any 
employees or commencing business activity , was not projected to take place until December 2016, 
several months after this petition's filing date . In fact, the business plan shows all these actions as 
"Pending L1 Visa," thereby indicating that hiring a staff and commencing business operations are 
both contingent upon the outcome of this visa petition. Despite claiming two employee s in the 
petition, the information in the business plan ' s timeline chart indicates that the Petitioner did not 
have a support staffto perform its daily operational and administrative tasks at the time offiling. 2 
In a request for evidence (RFE), the Petitioner was instructed to provide an organizational chart and 
quarterly wage reports for the last two quarters in 2016 as well as the company's payroll summary 
and Forms W-2, W-3, and 1099 showing wages paid to employees under the Beneficiary's control. 
In response , the Petitioner provided an amended business plan indicating that in order to promote 
"newly launched brands " and the Petitioner's own brands , it added an online store to its corporate 
website . The Petitioner provided more hiring projections, indicating that it intended to first hire 
brand managers who would assume the sales responsibility until an actual sales team is hired in 
2018. The amended business plan included another "Milestones" section reflecting new projections 
that included the added website. The Petitioner summarized its personnel plan by stating that it "will 
start its workforce naturally with its founders for the first six months of 2017 ." In light of this 
information, it appears that the Petitioner did not intend to staff itself with support personnel; 
therefore , it was not adequately staffed in October 2016 and likely unable to relieve the Beneficiary 
from having to primarily engage in operation al functions at the time of filing. 
In the denial decision, the Director acknowledged the·· Petitioner's submission of an organi zational 
chart, but found that the Petitioner did not provide information about the job duties to be carried out 
2 Although the business plan indicates that the Petitioner was at the beginning stages of development at the time this 
petition was filed , the Petitioner checked the "No" box in the L Classification Supplement , when asked if the Beneficiary 
was coming to the United States to open a new office . 
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Mauer of P-W-. LLC 
by the Beneficiary's subordinates to show that their positions correspond to their respective 
placements within the organizational hierarchy. 
On appeal, the Petitioner contends that it previously submitted evidence that was sufficient to 
establish that the Beneficiary will oversee the work of managers and that he will occupy the highest 
level. within the organizational hierarchy. We find, however, that the Petitioner's entire petition is 
based on projected actions, including the hiring of support personnel, which had not yet taken place 
at the time this petition was tiled. 
Although we acknowledge the Petitioner's submission of a business plan and the various personnel 
and business projections made therein, 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. § I 03 .2(b )(I). As noted earlier in our discussion, the record indicates that at 
the time of filing the Petitioner was at a rudimentary developmental phase and had no support staff 
to relieve the Beneficiary from having to allocate his time primarily to operational tasks in order to 
commence business operations and ensure that the Petitioner progresses to the next developmental 
phase. The Petitioner expressly stated that it planned to operate with only the Beneficiary and one 
other employee for the first six months of operation. The Petitioner has not established that an 
organizational hierarchy of only two employees, including the Beneficiary, would be sufficient to 
support the Beneficiary in a managerial capacity. Hi're, the Petitioner has not provided sufficient 
evidence to establish that at the time of filing it was adequately staffed with managers or 
professional employees for the Beneficiary to oversee. As stated earlier, the Petitioner must 
demonstrate 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. USC IS, 
469 F.3d at 1316; Champion World, 940 F.2d 1533. Here, the Petitioner appears to have had no 
lower-level employees to relieve the Beneficiary from having to primarily devote his time to the 
organization's operational and administrative functions at the time of filing. 
B. Duties 
Next, we will discuss the duties to be performed by the Beneficiary. In its initial cover letter, the 
Petitioner provided a vague job description indicating that the Beneficiary would develop and 
execute business strategies, oversee business plans and finances, ensure that "high-level 
management" understand company policies, assist with business expansion, communicate with 
shareholders and business partners, delegate responsibilities to executives, engage in public relations 
and maintaining a company profile, and analyze and provide solutions to resolve conflicts to ensure 
continued operations. The Petitioner restated the same list of duties in a formal company job 
description. 
In the RFE, the Petitioner was notified that the job description it provided with the petition was not 
sufficient and instructed it to provide more specific information describing the Beneficiary's typical 
managerial duties and assigning a percentage of time to each duty. 
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Matter of P-W-, LLC 
In response, the Petitioner provided the requested job duty breakdown with a percentage of time 
assigned to each duty; however, the job description was once again vague and did not include a 
detailed statement specifically identifying the job duties that the Beneficiary would perform within 
an organization where the Beneficiary is one of two employees. For instance, the Petitioner stated 
that the Beneficiary would devote 30% of his time to directing and coordinating financial and budget 
activities as well as production, pricing, sales, and distribution activities. The Petitioner did not 
specify the actual tasks involved in directing and coordinating these activities or establish that the 
Petitioner was able to relieve the Beneficiary from having to actually carry out the underlying 
activities, given its lack of support personnel at the time of filing. Reciting vague job responsibilities 
or broadly-cast business objectives is not sufficient; the regulations require a detailed description of 
the Beneficiary's daily job duties. See 8 C.F.R. § 2 I 4.2(1)(3)(ii). The duties listed herein are overly 
vague and do not disclose the Beneficiary's daily activities that are associated with directing and 
coordinating the Petitioner's finances and the various aspects of selling its products and services. 
The Petitioner also stated the Beneficiary would spend I 0% of his time consulting with 
"organization officials, and staff members," 10% setting goals and strategies "for all departments," 
and I 0% reviewing staff reports. However, all three of these components presume the existence of a 
staff that the Petitioner did not have when the petition was filed; therefore, they do not establish that 
the Beneficiary was ready to perform primarily' managerial-level tasks at the time of filing. While 
no beneficiary is required to allocate I 00% of his or her time to managerial-level tasks, the Petitioner 
must establish that the non-managerial tasks the Beneficiary would perform are only incidental to the 
proposed position. 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 capacity. See. 
e.g., sections IOI(a)(44)(A) of the Act (requiring that one "primarily" perform the enumerated 
managerial duties); Malter of Church Scientology Int 'I, 19 I&N Dec. 593, 604 (Comm'r 1988). 
In the present matter, while the Petitioner provided a job description indicating that the Beneficiary 
would oversee others who would carry out the organization's underlying operational and 
administrative tasks, it appears to offer invalid information when considered within the scope of an 
entity whose staff at the time of filing was comprised of the Beneficiary and one other employee. 
Despite claiming that a support staff would be· hired in 2017, as previously noted, all eligibility 
requirements must have been satisfied from. the time of the filing and continuing through 
adjudication. 8 C.F.R. § I 03.2(b)(l). Therefore, any organizational changes the Petitioner may 
undergo after the filing of the petition would be irrelevant for the purpose of determining the 
Petitioner's eligibility at the time of filing. 
In sum, we find that the Petitioner made broad and deficient claims about the Beneficiary's proposed 
job duties and provided insufficient evidence to show that it was able to relieve the Beneficiary from 
having to allocate his time primarily to non-managerial job duties at the time the petition was filed. 
Therefore, we cannot conclude that the Beneficiary would be employed in a managerial capacity 
under an approved petition. 
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Mauer of P-W-. LLC 
III. QUALIFYING RELATIONSHIP 
Further, while not addressed in the Director's decision, we find that the record does not establish that 
the Petitioner has a qualifying relationship with the Beneficiary's foreign employer. To establish a 
"qualifying relationship" under the Act and the regulations, a 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 related as a "parent and subsidiary" or as "affiliates." See generally 
section lOI(a)(l5)(L) of the Act; 8 C.F.R. § 2I4.2(l). 
In the present matter, the Petitioner marked the box for "subsidiary" at Section I, No. 9 of the Form 
I-129, L Classification Supplement; it also indicated that its relationship with the Beneficiary's 
foreign employer was that of parent-subsidiary, where the Petitioner is the subsidiary. In order to 
establish that the foreign entity is the parent in a parent-subsidiary relationship with the Petitioner, 
the Petitioner would have to provide evidence to show that the foreign entity owns the majority of 
the U.S. entity. See 8 C.F.R. §§ 214.2(l)(l)(ii)(K). However, the "Membership Information," which 
was submitted as Exhibit A of the Petitioner's operating agreement, indicates that the Beneficiary 
and one other individual each owns 50% of the Petitioner's ownership interest, thereby showing that 
the Petitioner is not owned by another entity and does not have a parent-subsidiary relationship with 
the Beneficiary's foreign employer. 
We also find that the two entities do not meet the criteria for an affiliate relationship, which requires 
the Petitioner to demonstrate that: (I) it is one of two subsidiaries that are both owned and 
controlled by the same parent or indiyidual, or (2) the Petitioner and the foreign entity are both 
owned by the same group of individuals with each individual owning and controlling approximately 
the same share or proportion of each entity. 8 C.F.R. § 214.2(l)(l)(ii)(L). As determined above, the 
Petitioner cannot be deemed a subsidiary of another entity and thus would not meet the first prong of 
this definition. Therefore, we will review each entity's ownership breakdown to determine whether 
they meet the second prong of the definition. The ownership scheme delineated in the foreign 
entity's Memorandum of Association shows that the foreign entity issued 15 shares each to three 
individuals, including the Beneficiary, and five shares to a fourth individual, for a total 50 shares. 
This ownership scheme indicates that the foreign entity has a group of four owners, as compared to 
the Petitioner's two owners; further, where each of the Petitioner's two owners has a 50% ownership 
interest resulting in each individual maintaining negative control of the entity, no one individual 
owns a majority interest or controls the foreign entity. 
Regulation and case law confirm that ownership and control are the factors that must be examined in 
determining whether a qualifying relationship exists be'tween United States and foreign entities. See. 
e.g., Matter of Church Scientology Int'/, 19 I&N Dec. 593; Matter of Siemens Med. Sys., Inc., 19 
I&N Dec. 362 (Comm'r 1986); Mauer of Hughes, 18 I&N Dec. 289 (Comm'r 1982). In light of the 
above, we cannot conclude that the requisite qualifying relationship exists between the Petitioner and 
the Beneficiary's foreign employer. Therefore the petition cannot be approved for this additional 
reason. 
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Mauer of P-W-, LLC 
IV. CORPORATESTATUS 
As a final matter, we are unable, through reference to a website maintained by the State of Texas, to 
determine that the Petitioner is in good standing and authorized to do business in Texas 3 Based on 
Texas state records, the Petitioner's corporate status was shown as "Franchise Tax Involuntarily 
Ended," which means that the Petitioner's "franchise tax responsibilities ended because it ceased to 
e;-cist in its state or country of formation or has ceased doing business in Texas." 4 The Petitioner's 
dissolution would raise questions about whether it continues to exist as an importing employer, 
whether it maintains a qualifying relationship with the Beneficiary's foreign employer, and whether 
it is authorized to conduct business in a regular and systematic manner, See section 214( c)( I) of the 
Act; see also 8 C.F.R. §§ 214.2(1)(1)(ii)(G) and (1)(3). While not a basis for the dismissal of this 
appeal, the Petitioner will need to address this deficiency in any future filing where it purports to be 
the employing entity. 
V. CONCLUSION 
For the reasons discussed above, we find that the Petitioner has not established that: (I) the 
Beneficiary will be employed in the United States in a managerial capacity; and (2) a qualifying 
relationship exists between the Petitioner and the Beneficiary's foreign employer. The appeal will 
be dismissed for these reasons. ' 
ORDER: The appeal is dismissed. 
Cite as Maller of P- W-, LLC, ID# II 06606 (AAO May 15, 20 18) 
3 
See https:l/mycpa.cpa.state.tx.us/coa/FranchiseStatusHelp.jsp. 
4 !d.