dismissed L-1A Case: Retail

U.S. Citizenship 
and Immigration 
Services 
In Re: 7094608 
Appeal of California Service Center Decision 
Form I-129, Petition for Nonimmigrant Worker (L-lA) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: JAN. 23, 2020 
The Petitioner, describing itself as a dollar value retail store, seeks to temporarily employ the 
Beneficiary as a retail buyer in its new office 1 under the L-lA nonimmigrant classification for 
intracompany transferees. Immigration and Nationality Act (the Act) section 101(a)(15)(L), 8 U.S.C. 
§ 1101(a)(15)(L). 
The Director of the California Service Center denied the petition on multiple grounds, concluding that 
the Petitioner did not establish, as required, that: 1) it had a qualifying relationship with the 
Beneficiary's foreign employer; 2) the Beneficiary is employed in a managerial or executive capacity 
abroad; and 3) the Beneficiary would be employed in a managerial or executive capacity in the United 
States within one year. 
On appeal, the Petitioner contends that the submitted evidence demonstrates that it and the foreign 
employer are owned and controlled by the same individual; and therefore, that they have a qualifying 
relationship. The Petitioner further asserts that the Beneficiary qualifies as a function manager abroad. 
Lastly, the Petitioner indicates that the Beneficiary would devote his time primarily to managerial 
duties in the United States. 
In these proceedings, it is the Petitioner's burden to establish eligibility for the requested benefit. 
Section 291 of the Act, 8 U.S.C. § 1361. Upon de nova review, we will dismiss the appeal. 
I. LEGAL FRAMEWORK 
To establish eligibility for the L-lA nonimmigrant visa classification in a petition involving a new 
office, a qualifying organization must have employed the beneficiary in a managerial or executive 
capacity for one continuous year within three years preceding the beneficiary's application for 
admission into the United States. 8 C.F.R. § 214.2(1)(3)(v)(B). In addition, the beneficiary must seek 
1 The term "new office" refers to an organization which has been doing business in the United States 
for less than one year. 8 C.F.R. § 214.2(l)(l)(ii)(F). The regulation at 8 C.F.R. § 214.2(1)(3)(v)(C) 
allows a "new office" operation no more than one year within the date of approval of the petition to 
support an executive or managerial position . 
to enter the United States temporarily to continue rendering his or her services to the same employer 
or a subsidiary or affiliate thereof in a managerial or executive capacity. Id. 
The petitioner must submit evidence to demonstrate that the new office will be able to support a 
managerial or executive position within one year. This evidence must establish that the petitioner 
secured sufficient physical premises to house its operation and disclose the proposed nature and scope 
of the entity, its organizational structure, its financial goals, and the size of the U.S. investment. See 
generally, 8 C.F.R. § 214.2(1)(3)(v). 
II. QUALIFYING RELATIONSHIP 
The first issue we will address is whether the Petitioner established that it has a qualifying relationship 
with the Beneficiary's former foreign employer. 
To establish a "qualifying relationship," the Petitioner must show that the Beneficiary's foreign 
employer and the proposed U.S. employer are the same employer (i.e. one entity with "branch" 
offices), or related as a "parent and subsidiary" or as "affiliates." See section 101 (a)( l 5)(L) of the Act; 
see also 8 C.F.R. § 214.2(1)(1 )(ii) (providing definitions of the terms "parent," "branch," "subsidiary," 
and "affiliate"). Regulation and case law confirm that ownership and control are the factors that must 
be examined in determining whether a qualifying relationship exists between United States and foreign 
entities. See, e.g., Matter of Church Scientology Int'!, 19 I&N Dec. 593 (Comm'r 1988); Matter of 
Siemens Med. Sys., Inc., 19 I&N Dec. 362 (Comm'r 1986); Matter of Hughes, 18 I&N Dec. 289 
(Comm'r 1982). Ownership refers to the direct or indirect legal right of possession of the assets of an 
entity with foll 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 Int'l, 19 I&N Dec. at 595. 
As a preliminary matter, the Petitioner has not established its ownership as necessary to demonstrate 
a qualifying relationship. In section 1, items 9 and 10 of the L Classification Supplement to the Form 
I-129 the Petitioner stated that it and its foreign are subsidiaries and both 100% owned byl I 
I I However, in response to the Director's request for evidence (RFE), the Petitioner stated that 
'I I owns both the foreign and the U.S. company completely." However 
~ same letter, the Petitioner indicated that its corporate bylaws were signed by two parties,D 
L___.hnd its vice president; and it stated that "each party declar[ ed] [a] 50% interest in the U.S. entity." 
On appeal, the Petitioner again sets forth these conflicting ownerships; namely, stating both that the 
Petitioner is wholly owned byl land that he only owns 50% along with its vice president. The 
conflicting statements as to the ownership in the Petitioner leave substantial uncertainty as to its actual 
ownership. The Petitioner must resolve discrepancies in the record with independent, objective 
evidence pointing to where the truth lies. Matter of Ho, 19 I&N Dec. 582, 591-92 (BIA 1988). 
Further, the Petitioner submits insufficient supporting documentation to substantiate its ownership. 
As general evidence of a petitioner's claimed qualifying relationship, a Petitioner must submit 
supporting documentation to demonstrate its ownership. This evidence would include stock 
certificates, a corporate stock certificate ledger, stock certificate registry, corporate bylaws, and the 
minutes of relevant annual shareholder meetings. This evidence must be examined to determine the 
total number of shares issued, the exact number issued to shareholders, and the subsequent percentage 
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ownership and its effect on corporate control. In addition, a petitioning company must disclose all 
agreements relating to the voting of shares, the distribution of profit, the management and direction of 
the subsidiary, and any other factor affecting control of the entity. See Matter of Siemens Med. Sys., 
Inc., 19 I&N Dec. at 365. 
The Petitioner has not submitted any supporting documentation to establish its ownership; for instance, 
it did not provide stock certificates, a stock ledger, articles of incorporation, minutes of shareholder 
meetings, evidence of consideration paid for stock, or other such evidence to definitively demonstrate 
its ownership. The Petitioner only provided its bylaws, signed by its claimed owner,I land 
two other parties. However, the bylaws do not definitively set forth the Petitioner's ownership nor do 
they indicate to whom shares in the company were issued. In fact, the Petitioner leaves even farther 
question as to its ownership by stating that "the issuance of private stock is also therefore contingent 
upon the business becoming operational" and that "there are future plans to issue the private stock to 
its owners." This statement appears to reflect that no Petitioner shares were issued to any owners as 
of the date the petition was filed, leaving substantial doubt as to its ownership and status as a qualifying 
entity. We recognize that the Petitioner's statement that is not a publically traded company and that it 
is not registered with the U.S. Securities and Exchange Commission (SEC); however this does not 
explain the lack of evidence of its ownership or its issuance of shares to owners. Therefore, since the 
Petitioner has not sufficiently established its ownership, it has not demonstrated that it has a qualifying 
relationship with the foreign employer. 
In addition, the Petitioner has not submitted evidence to demonstrate the ownership in the foreign 
employer. The Petitioner stated in response to the Director's RFE that the foreign employer "is a sole 
proprietorship business ... therefore, there are no Articles of Incorporation, or Securities and Exchange 
Commission Forms." The Petitioner indicated that "establishments or Sole Proprietorships are only 
required to register with the~--------~ Ministry of Commerce and Industry." We note 
that it is the Petitioner's burden to establish common ownership between it and the foreign employer; 
however, it has provided no supporting documentation to establish the foreign employer's ownership. 
In fact, its statements as to the lack of ownership in the foreign employer leave uncertainty as to 
whether the foreign employer is a qualifying organization. For this additional reason, the Petitioner 
has not established a qualifying relationship between it and the foreign employer. 
The appeal must be dismissed as the Petitioner has not demonstrated that there was a qualifying 
relationship between it and the foreign employer. 
III. FOREIGN EMPLOYMENT IN A MANAGERIAL CAPACITY 
As we have discussed, the Director also denied the petition concluding that the Petitioner did not 
establish that the Beneficiary was be employed in a managerial or executive capacity abroad. Because 
of the dispositive effect of the above finding of ineligibility, we will only briefly address whether the 
Beneficiary acts in a managerial or executive capacity abroad. The Petitioner does not claim that the 
Beneficiary is employed in an executive capacity abroad. Therefore, we restrict our analysis to 
whether the Beneficiary is employed in a managerial capacity. 
In denying the petition on these grounds, the Director determined that the Beneficiary's foreign duties 
appeared to include non-qualifying operational tasks and noted that the Petitioner did not indicate how 
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much time she would devote to these non-qualifying duties. The Director also indicated that the 
foreign organizational chart reflected that the Beneficiary would have no subordinates; and therefore, 
no one to relieve her from performing the aforementioned non-qualifying tasks. On appeal, the 
Petitioner contends that the Beneficiary qualifies as a function manager. 
The term "function manager" applies generally when a beneficiary does not supervise or control the 
work of a subordinate staff but instead is primarily responsible for managing an "essential function" 
within the organization. See section 101(a)(44)(A)(ii) of the Act. If a petitioner claims that a 
beneficiary is managing an essential function, it must clearly describe the duties performed in 
managing the essential function. In addition, the petitioner must demonstrate that "(l) the function is 
a clearly defined activity; (2) the function is 'essential,' i.e., core to the organization; (3) the 
beneficiary primarily manages, as opposed to performs, the function; (4) the beneficiary will act at a 
senior level within the organizational hierarchy or with respect to the function managed; and ( 5) the 
beneficiary will exercise discretion over the function's day-to-day operations." Matter of G- Inc., 
Adopted Decision 2017-05 (AAO Nov. 8, 2017). 
As noted by the Director, the Petitioner has not established that the Beneficiary qualifies as a function 
manager as her duties indicate that she is primarily engaged in non-qualifying operational duties; or 
more specifically, performing her function rather than managing it. For instance, the Beneficiary's 
foreign duty description includes a number of day-to-day operational tasks, including her conducting 
site safety inspections, taking account of workplace hazards, keeping records of these matters, 
producing statistics for managers, creating management reports and newsletters, ensuring the safe 
installation of equipment, investigating accidents and injuries in the workplace, and delivering 
educational programs related to safety. In fact, the foreign organizational chart reflects that the 
Beneficiary reports to a health and safety manager, while her position is that of health and safety 
officer. As such, it appears most likely that the Beneficiary is performing all the non-qualifying 
operational tasks of the health and safety function, while the health and safety manager oversees this 
function. 
Whether the Beneficiary is a managerial employee turns on whether the Petitioner has sustained its 
burden of proving that their duties are "primarily" managerial. See sections 10l(a)(44)(A) of the Act. 
Here, the Petitioner does not document what proportion of the Beneficiary's duties would be 
managerial functions and what proportion would be non-qualifying. The Petitioner lists the 
Beneficiary's duties as including both managerial tasks and administrative or operational tasks, but 
does not quantify the time she spends on these different duties. For this reason, we cannot determine 
whether the Beneficiary is primarily performing the duties of a manager. See IKEA US, Inc. v. US. 
Dept. of Justice, 48 F. Supp. 2d 22, 24 (D.D.C. 1999). In sum, the submitted evidence indicates that 
the Beneficiary is more likely than not performing her asserted function, rather than managing it. 
For this reason, the Petitioner has not established that the Beneficiary acts in a managerial capacity 
abroad. 
IV. U.S. EMPLOYMENT IN A MANAGERIAL CAPACITY 
The last issue we will address is whether the Petitioner established that the Beneficiary would be 
employed in a managerial or executive capacity in the United States within one year of an approval of 
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the petition. Again, because of the dispositive effect of the above findings of ineligibility, we will 
only briefly address this issue. 
In denying the petition, the Director noted that the Beneficiary would act as a "retail buyer" for the 
Petitioner's planned dollar store and determined that she would likely be primarily engaged in non­
qualifying operational duties in this position. Further, the Director pointed to conflicting hiring plans, 
including those provided in a projected U.S. organizational chart as compared to those reflected in a 
submitted business plan. Lastly, the Director stated that the Petitioner did not submit sufficient 
evidence of the foreign employer's investment in the new office as required by the regulations. 
On appeal, the Petitioner does little to overcome the Director's reasons for denying the petition on this 
ground. In order to qualify for L-1 nonimmigrant classification during the first year of operations, the 
regulations require a petitioner to disclose the proposed nature of the business and the size of the U.S. 
investment, and establish that the proposed enterprise will support a managerial position within one 
year of the approval of the petition. See 8 C.F.R. § 214.2(1)(3)(v)(C). This evidence should 
demonstrate a realistic expectation that the enterprise will succeed and rapidly expand as it moves 
away from the developmental stage to full operations, where there would be an actual need for a 
manager who will primarily perform qualifying duties. 
First, the Petitioner does not address on appeal the conflicting hiring plans it submitted which were 
emphasized by the Director in the denial. As such, its first year plans are not clear; and in tum, whether 
they are likely to allow the new office to develop as necessary to support the Beneficiary in a 
managerial capacity within one year. Further, the Petitioner lists several apparent non-qualifying 
operational tasks for the Beneficiary in her proposed position, retail buyer, such as enacting a point of 
sale and video surveillance systems, establishing cash handling procedures and performing product 
purchasing and inventory duties. The Petitioner does not sufficiently articulate how the Beneficiary 
would be primarily relieved from performing these non-qualifying operational tasks within one year; 
in fact, it only further emphasizes these non-qualifying duties on appeal. 
Lastly, the Petitioner did not demonstrate the foreign employer's investment in the new venture in the 
United States as required by the regulations. On appeal, the Petitioner questionably states that it has 
only invested "limited funds" in the new venture for a bank account, a lease, permits, and basic 
supplies; but notes that "the partners will provide future funding when the Beneficiary is able to work 
in the U.S." However, there is no information on these referenced "partners," how much they would 
invest, how much investment is required to launch the business successfully, or any supporting 
documentation to substantiate that sufficient funds to invest are available. For these reasons, the 
Petitioner has not established the size of the U.S. investment in the proposed new office. See 8 C.F.R. 
§ 214.2(1)(3)(v)(C). 
For the above stated reasons, the Petitioner did not establish that the Beneficiary would act in a 
managerial capacity within the first year. 
V. CONCLUSION 
The appeal must be dismissed because the Petitioner has not established that: 1) it has a qualifying 
relationship with the Beneficiary's foreign employer; 2) Beneficiary is employed in a managerial or 
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executive capacity abroad; or 3) the Beneficiary would be employed in a managerial or executive 
capacity in the United States within one year. 
ORDER: The appeal is dismissed. 
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