dismissed L-1A Case: Online Marketing

U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rrn. 3000 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
PUBLIC COPy 
File: EAC 08 104 50369 Office: VERMONT SERVICE CENTER 
IN RE: 
~(3032(88 
Date: 
Petition: 
 Petition for a Nonimrnigrant Worker Pursuant to Section 10 1 (a)(15)(L) of the Immigration 
and Nationality Act, 8 U.S.C. $ 1 101(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. 
Robert P. Wiemann, Chief 
Administrative Appeals Office 
EAC 08 104 50369 
Page 2 
DISCUSSION: The Director, Vermont Service Center, denied the petition for a nonimrnigrant visa. The 
matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. 
The petitioner filed this nonimmigrant petition seeking to employ the beneficiary as its president and chief 
executive officer (CEO) as an L-I A nonimmigrant intracompany transferee pursuant to section 101(a)(15)(L) 
of the Immigration and Nationality Act (the Act), 8 U.S.C. 4 1101(a)(15)(L). The petitioner is a New Jersey 
corporation claiming to be engaged in the business of online marketing and sales of database management 
solutions. The petitioner seeks to employ the beneficiary from March 1,2008 until February 28,2013. 
The director denied the petition on the basis of three independent grounds of ineligibility. First, the director 
determined that the beneficiary was not employed abroad for the requisite one-year period within the three 
years prior to the date the Form 1-129 was filed; second, the director determined that even if the beneficiary 
had been employed abroad during the requisite time period, the petitioner failed to establish that the 
beneficiary's employment abroad was in a qualifying managerial or executive capacity; and third, the director 
found that the petitioner failed to establish that the beneficiary would be employed in the United States in a 
qualifying managerial or executive capacity. 
On appeal, counsel disputes the director's adverse conclusion and provides a supporting appellate brief and 
supplemental documentation to establish the petitioner's eligibility for the immigration benefit sought. 
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. 4 214.2(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. 
(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 
EAC 08 104 50369 
Page 3 
education, training, and employment qualifies hider 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. 
Section 101(a)(44)(A) of the Act, 8 U.S.C. tj 1101(a)(44)(A), defines the term "managerial capacity" as an 
assignment within an organization in which the employee primarily: 
(i) 
 manages the organization, or a department, subdivision, function, or component of 
the organization; 
(ii) 
 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; 
(iii) 
 if another employee or other employees are directly supervised, has the authority to 
hire and fire or recommend those as well as other personnel actions (such as 
promotion and leave authorization), or if no other employee is directly supervised, 
functions at a senior level within the organizational hierarchy or with respect to the 
function managed; and 
(iv) 
 exercises discretion over the day-to-day operations of the activity or function for 
which the employee has authority. A first-line supervisor is not considered to be 
acting in a managerial capacity merely by virtue of the supervisor's supervisory 
duties unless the employees supervised are professional. 
Section 101(a)(44)(B) of the Act, 8 U.S.C. tj 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 fiom higher level executives, the board 
of directors, or stockholders of the organization. 
The first issue in this proceeding is whether the beneficiary had the requisite one year of employment abroad 
within the three years prior to February 28,2008, the date the instant Form 1-129 was filed.' 
' As the beneficiary's last entry into the United States was not for the purpose of continuing her employment for an 
affiliate, branch, or subsidiary of the foreign employer, the relevant three-year period during which the petitioner must 
EAC 08 104 50369 
Page 4 
The record shows that the beneficiary entered the United States on September 29, 2005 as a B-2 visitor for 
pleasure. The record further shows that the beneficiary remained in the United States and subsequently 
obtained a change of status to that of an R-2 dependent of a religious worker. As the Form 1-129 in the 
present matter was not filed until February 28, 2008 and in light of the length of the beneficiary's lawful U.S. 
presence, which commenced on September 29,2005 and which cannot be termed as being brief, it is factually 
impossible for the beneficiary to have been employed abroad for one full year within the three years prior to 
February 28, 2008. Based on the facts presented herein, at most, the beneficiary could have only been 
employed abroad for seven months during the relevant three-year time period. Therefore, the petitioner has 
failed to establish that it meets the requirement specified in 8 C.F.R. 8 214.2(1)(3)(iii). 
The next two issues in this proceeding call for an analysis of the beneficiary's job duties. Specifically, the 
AAO will determine whether the beneficiary was employed abroad and whether she would be employed by 
the United States petitioner in a primarily managerial or executive capacity. 
In support of the Form 1-129, the petitioner provided a letter dated February 14, 2008 in which the 
beneficiary, on behalf of the petitioner, provided the following statements regarding her foreign employment 
and her proposed position with the U.S. entity, respectively: 
[The beneficiary's] duties as [plresident of [the] Korea [alffiliate have been as follows: to 
control all of the business and affairs of the corporation; preside at all share holders and 
[bloard of [dlirectors meetings; conceive, plan and implement long-term objectives and mid- 
term business development projects; to set annual goals; control, supervise and direct 
divisional managers of the corporation in their respective job performances; hre, fire and 
promote managers and key employees of the corporation; sign any deeds, mortgages, bonds, 
policies of insurance, contracts, investment certificates, or other instruments; and perform all 
duties incidental to the office of the CEO of a corporation under the Corporation Law of 
Korea. 
[The beneficiary's] primary responsibility [as president and CEO of the U.S. entity] will be: 
to control all of the business and affairs of [the] U.S. [alffiliate; preside at all share holders 
and [bloard of [dlirectors meetings; control, supervise and direct the vice-[plresident and 
[dlivisional [mlanagers, and key staff of the corporation; write business plans; set annual 
goals and long-term objectives; direct marketing research activities; identify marketing 
strategy for target market territories; negotiate lease and property acquisitions; negotiate with 
financial institutions for funding for property acquisition and equipment leases; formulate and 
[sic] personnel hiring and training policies; supervise hiring, firing and promotion activities; 
consult with [a] CPA on tax and management issues; consult with attorneys on compliance 
and other legal matters; sign any deeds, mortgages, bonds, insurance policies, contracts, 
investment certificates, or other instruments; and perform all duties incidental to the office of 
the CEO and [plresident under the [New Jersey corporate statutes]. 
establish the beneficiary's one year of foreign employment is the three years prior to the date the petition was filed. See 
8 C.F.R. §§ 214.2(1)(2)(A) and (3)(iii). 
EAC 08 104 50369 
Page 5 
On March 6, 2008, the director issued a request for additional evidence (RFE), informing the petitioner that 
the documentation submitted thus far was insufficient to establish that the beneficiary was employed abroad 
and would be employed in the United States in a qualifying managerial or executive capacity. 
With regard to the foreign employment, the petitioner was asked to outline the beneficiary's managerial or 
executive job duties and to discuss those duties in the context of the foreign entity's organization and 
personnel structure. With regard to the beneficiary's proposed employment with the U.S. entity, the petitioner 
was instructed to provide evidence of its management and personnel structure with an indication as to the 
number of subordinates that would be under the beneficiary's supervision, the subordinate employees' job 
titles and job duties, and a discussion of who will conduct the business of selling the company's product. The 
petitioner was also asked to provide a copy of its organizational chart. 
In response, the petitioner provided a letter from counsel dated April 15,2008 in which counsel stated that the 
beneficiary was charged with overseeing five divisional and sectional directors and managers within her 
position with the foreign entity. Counsel stressed the beneficiary's position as the organization's top-most 
executive, which resulted in broad discretionary authority over a broad range of corporate activities. Despite 
the director's request, neither counsel nor the petitioner provided a list of the beneficiary's actual foreign job 
duties. Rather, counsel repeated the broad list of responsibilities previously provided by the petitioner and 
added that the beneficiary wrote business plans; set annual and long-term goals; generated marketing brand 
name recognition; supervised market research and directed marketing activities; identified locations for 
expansion; negotiated terms for property and equipment leases, property acquisitions, and funding with regard 
thereto; established hiring and training policies; and assigned job duties to subordinate employees. It is noted 
that while certain job duties were provided, counsel's description was comprised primarily of broad job 
responsibilities, which failed to convey a true understanding of the beneficiary's daily tasks and, more 
importantly, did not explain how a variety of the broader job responsibilities were carried out. 
With regard to the beneficiary's proposed position with the U.S. entity, counsel stated that the beneficiary 
would manage three subordinate employees-the vice presidentlsupport division manager, a marketing 
manager, and an office manager. Counsel added that other non-executive and non-managerial employees 
were omitted from the discussion. However, it is noted that the Form 1-129 indicates that the petitioner 
employed a total of three employees at the time of filing. It is therefore unclear who, beyond the three 
employees that were previously identified, could have been employed by the petitioner during the critical time 
period. Furthermore, although the petitioner provided an organizational chart, the overwhelming majority of 
the positions listed in the chart are unfilled as of yet and will remain unfilled until some projected time in the 
future. Thus, while the petitioner attempted to illustrate the hierarchy of its corporate structure, the 
organizational chart submitted was effective as of April 7,2008, which is more than one month after the Form 
1-129 was filed. The AAO notes that the petitioner must establish its ability to employ the beneficiary in a 
managerial or executive capacity as of the date of filing. Matter of Michelin Tire Corp., 17 I&N Dec. 248 
(Reg. Comm. 1978). The petitioner's corporate structure as of the date the petition was filed is key to making 
such a determination. 
Lastly, counsel stated that "virtually 100 percent of the [bleneficiary's full[-]time work will be devoted to her 
EAC 08 104 50369 
Page 6 
executive function at [the petitioning entity]." 
 He reiterated that the beneficiary is the petitioner's sole 
shareholder and that she has complete discretion over the business development and operation. However, 
neither the beneficiary's placement within the petitioning entity's hierarchy nor her discretionary authority 
establish that she would be primarily employed in a qualifying capacity. In addition to the beneficiary's 
position and discretionary authority, the petitioner must provide a detailed description of the beneficiary's job 
duties and establish its overall ability to relieve the beneficiary from having to primarily focus on the 
petitioner's non-qualifying daily operational tasks. The petitioner did not succeed in establishing these key 
elements with the documentation submitted in response to the RFE. 
Accordingly, in a decision dated April 22, 2008, the director denied the petition, finding that the petitioner 
failed to establish that the beneficiary was employed abroad and that she would be employed by the U.S. 
entity in a position that is within a qualifying managerial or executive capacity. The director cautioned the 
petitioner from relying heavily on the beneficiary's position with either entity's organizational hierarchy, 
placing more emphasis on a thorough description of the beneficiary's job duties with respect to each entity. 
With regard to the U.S. entity, the director observed that two key elements were missing. The director 
determined first, that the petitioner failed to specify which duties the beneficiary would perform and second, 
that the petitioner failed to explain who is actually providing its goods and/or services on a daily basis. 
On appeal, counsel submits a brief itemizing the beneficiary's educational and professional background and 
names individuals with whom the beneficiary had dealings in her capacity as CEO of the foreign entity. 
Additionally, the petitioner provides statements from the beneficiary's peers, who discussed their business 
dealings with the beneficiary and attested to her competence in her employment abroad. 
With regard to the beneficiary's proposed employment, the petitioner provides a recent organizational chart 
updated to show the petitioner's organizational hierarchy as of May 2008. This information was accompanied 
by employee paystubs from May 2008 and another job description for the beneficiary and the remainder of 
the petitioner's employees. 
The MO finds, however, that neither counsel's statements nor the supporting evidence is persuasive in 
establishing that the beneficiary was employed abroad and would be employed by the U.S. petitioner in a 
qualifying managerial or executive capacity. 
When examining the executive or managerial capacity of the beneficiary, the AAO will look first to the 
petitioner's description of the job duties. See 8 C.F.R. 
 214.2(1)(3)(ii). The MO will then consider this 
information in light of a company's organizational hierarchy, the beneficiary's position therein, and the 
company's overall ability to relieve the beneficiary from having to primarily perform the daily operational 
tasks. While the petitioner has emphasized the beneficiary's prominent role in leading the foreign and U.S. 
entities with regard to all business matters, the petitioner has not provided comprehensive job descriptions 
detailing the specific duties performed abroad and the duties the beneficiary would be expected to perform in 
the United States at the time the Form 1-129 was filed. Specifics are clearly an important indication of 
whether a beneficiary's duties are primarily executive or managerial in nature; otherwise meeting the 
definitions would simply be a matter of reiterating the regulations. Fedin Bros. Co., Ltd. v. Sava, 724 F. 
Supp. 1 103 (E.D.N.Y. 1989), afd, 905 F.2d 41 (2d. Cir. 1990). 
EAC 08 104 50369 
Page 7 
Despite the professional opinions of the beneficiary's peers overseas, there is no indication that they are 
qualified to assess the beneficiary's daily job duties in light of the U.S. statutes and regulations that define the 
relevant terminology and specify the provisions the petitioner must meet in order to establish that the 
beneficiary was employed abroad in a managerial or executive capacity. It is noted that the common 
definition of manager or executive is different from the relevant statutory and regulatory definitions that are 
applicable in the matter at hand. Mere interaction with the beneficiary in the course of various business 
transactions does not render the beneficiary's peers qualified to weigh in and assist Citizenship and 
Immigration Services in determining whether the beneficiary was employed abroad in a qualifying capacity. 
Without proper disclosure of the beneficiary's specific daily tasks and a clear explanation of who within the 
foreign entity was actually providing the non-qualifying operational tasks, the petitioner cannot succeed in 
establishing that the beneficiary's employment abroad primarily involved the performance of qualifying 
managerial or executive duties. Therefore, even if the petitioner were able to establish that the beneficiary 
had the requisite amount of employment abroad during the relevant time period, it would nevertheless be 
ineligible for the benefit sought due to its failure to establish that the beneficiary was employed abroad in a 
qualifying managerial or executive capacity. 
Next, although the petitioner has provided the beneficiary's proposed job description on three different 
occasions, the three descriptions are almost identical in their content and all three primarily consist of broad 
responsibilities rather than specific job duties that convey an understanding of how the beneficiary's time 
would be spent on a daily basis. Merely claiming that 40 hours per week would be spent on the 
responsibilities and duties provided in the job description is not sufficient. A number of the responsibilities 
listed, i.e., negotiations for lease and property acquisitions and negotiations with financial institutions, do not 
appear to be duties that the beneficiary would need to carry out on a daily basis. As such, the petitioner 
should more specifically indicate how much of the beneficiary's time would be spent performing these 
particular duties as opposed to other duties that may be performed on a more regular, or daily, basis. In other 
words, while it is understandable that some duties are performed on a more frequent basis, the petitioner 
could have addressed this issue by specifically listing the duties and then by indicating the portion or the 
percentage of time assigned to the specific duties. This would enable the AAO to gauge which duties would 
be performed most fiequently and which would consume the greatest portion of the beneficiary's week. The 
actual duties themselves reveal the true nature of the employment. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 
at 1108. 
Additionally, the petitioner's organizational chart and pay stubs issued by the petitioner in May 2008 do not 
address the more relevant matter of the petitioner's staffing composition as of the date the Form 1-129 was 
filed. As previously indicated, the petitioner must establish eligibility at the time of filing the nonimmigrant 
visa petition. A visa petition may not be approved at a future date after the petitioner or beneficiary becomes 
eligible under a new set of facts. Matter of Michelin Tire Corp., 17 I&N Dec. 248. It is noted that in 
reviewing the relevance of the number of employees a petitioner has, federal courts have generally agreed that 
CIS "may properly consider an organization's small size as one factor in assessing whether its operations are 
substantial enough to support a manager." Family, Inc. v. U.S. Citizenship and Immigration Services, 469 
F.3d 13 13, 13 16 (9th Cir. 2006) (citing with approval Republic of Transkei v. INS, 923 F.2d 175, 178 (D.C. 
Cir. 1991); Fedin Bros. Co. v. Sava, 905 F.2d 41, 42 (2d Cir. 1990) (per curiam); Q Data Consulting, Inc. v. 
EAC 08 104 50369 
Page 8 
INS, 293 F. Supp. 2d 25, 29 (D.D.C. 2003). That being said, the petitioner has indicated that at the time the 
Form 1-129 was filed it was staffed with three employees-a technical support manager, a marketing 
manager, and an office manager. While the petitioner indicated that the beneficiary would be placed at the 
top of the hierarchy, the petitioner did not provide a thorough explanation of how, with the staffing 
composition it had in place at the time of filing, it would have been able to relieve the beneficiary fiom 
having to primarily perform non-qualifying job duties. 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 sections 101(a)(44)(A) and (B) of the Act (requiring that one ' 
"primarily" perform the enumerated managerial or executive duties); see also Matter of Church Scientology 
International, 19 I&N Dec. 593,604 (Comm. 1988). 
In summary, the petitioner failed to adequately describe the beneficiary's proposed job duties and did not 
explain how its organizational structure at the time of filing required and had the capability to support a 
managerial or executive employee. Therefore, in light of the documentation submitted by the petitioner thus 
far, the AAO concludes that the petitioner has failed to establish that it was ready and able to employ the 
beneficiary in a qualifying managerial or executive position at the time the Form 1-129 was filed. 
Lastly, given the petitioner's description of its business organization and the beneficiary's proposed 
relationship to this business, it appears more likely than not that the beneficiary will not be an "employee" of 
the United States operation. It is noted that "employer" and "employed" are not specifically defined for purposes 
of the Act even though these terms are used repeatedly in the context of addressing the cment employment-based 
nonirnmigrant classification. However, section I0 1 (a)(44), 8 U.S.C. 8 1 I0 l(a)(44), defines both managerial and 
executive capacity as an assignment withn an organization in which an "employee" performs certain enumerated 
qualifying duties. 
Furthermore, 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) of Agency tj 220(2) (1958); Clackamas 
EAC 08 104 50369 
Page 9 
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. ofAmerica, 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, 538 U.S. at 449-450; 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. 
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 
will be an "employee" employed in a managerial or executive capacity. The petitioner is a corporation, which 
is ultimately owned and controlled by the beneficiary, who purports to assume a role as the petitioner's 
principal. There is no evidence that any other individual has an ownership interest or is in a position to 
exercise any control over the work to be performed by the beneficiary. 
In view of the above, it appears that the beneficiary will be a proprietor of this business and will not be an 
"employee" as defined above. It has not been established that the beneficiary will be "controlled" by the 
petitioner or that the beneficiary's employment could be terminated. To the contrary, the beneficiary is the 
petitioner for all practical purposes. She will control the organization; she cannot be fired; she will report to 
no one; she will set the rules governing her work; and she will share in all profits and losses. Therefore, 
based on the tests outlined above, the petitioner has not established that the beneficiary will be "employed" as 
an "empIoyee." 
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), affd, 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). 
EAC 08 104 50369 
Page 10 
The petition will be denied for the above stated reasons, with each considered as an independent and 
alternative basis for denial. When the AAO denies a petition on multiple alternative grounds, a plaintiff can 
succeed on a challenge only if it is shown that the AAO abused its discretion with respect to all of the AAO's 
enumerated grounds. See Spencer Enterprises, Inc., 229 F. Supp. 2d at 1043. 
In visa petition proceedings, the burden of proving eligbility for the benefit sought remains entirely with the 
petitioner. 8 U.S.C. 
 1361. Here, that burden has not been met. Accordingly, the appeal will be dismissed. 
ORDER: The appeal is dismissed.