dismissed L-1A Case: Sales

MATTER OF B-, INC. 
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APPEAL OF VERMONT SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: NOV. 8, 2018 
PETITION: FORM 1-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, an importer, wholesaler, and retailer of interior and exterior doors, seeks to 
temporarily employ the Beneficiary as sales director of its new office1 under the L-1 A non immigrant 
classification for intracompany transferees. See Immigration and Nationality Act (the Act) section 
10l(a)(l 5)(L), 8 U.S.C. § l 101{a)(l5)(L). The L-lA classification allows a corporation or other legal 
entity (including its afliliate or subsidiary) to transfer a qualifying foreign employee to the United States 
to work temporarily in a managerial or executive capacity. 
The Acting Director of the Vermont Service Center denied the petition concluding that the Petitioner 
did not establish, as required, that the Beneficiary: (I) was employed abroad in a managerial or 
executive capacity; (2) would be employed in the United States in a managerial or executive 
capacity; and (3) had at least one continuous year of full-time employment abroad with a qualifying 
organization within the three years preceding the filing of the petition. 
On appeal, the Petitioner disputes the three grounds for denial, contending that the Beneficiary met 
all eligibility requirements. The Petitioner contends that neither the request for evidence (RFE) nor 
the U.S. Citizenship and Immigration Services (USCIS) website stated that the Beneficiary had to be 
physically outside of the United States during his period of foreign employment. 
Upon de nova review, we will dismiss the appeal because the Petitioner has not established that the 
Beneficiary was employed for the requisite one-year period within the three years prior to filing this 
petition. See 8 C.F.R. § 214.2{1)(3)(iii). However, we will reserve the remaining two issues as the 
Petitioner has not satisfied a fundamental element of eligibility, which requires it to establish that the 
Beneficiary was employed abroad for one year during a specific three-year period. 
1 The tenn "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(1)( I )(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 appro~al of the petition to support an executive or managerial position. 
Matter of B-. Inc. 
I. LEGAL FRAMEWORK 
To establish eligibility for the L-1 A 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. § 2 l 4.2(1)(3)(v)(B). 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. 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). 
The term "intracompany transferee" is defined as: 
An alien who, within three years preceding the time of his or her application for 
admission into the United States, has been employed abroad continuously for one 
year by a firm or corporation or other legal entity or parent, branch, affiliate or 
subsidiary thereof, and who seeks to enter the United States temporarily in order to 
render his or her services to a branch of the same employer or a parent, affiliate, or 
subsidiary thereof in a capacity that is managerial, executive or involves specialized 
knowledge. Periods spent in the United States in lawful status for a branch of the 
same employer or a parent, affiliate, or subsidiary thereof and brief trips to the 
United States for business or pleasure shall not be interruptive of the one year of 
continuous employment abroad but such periods shall not be counted toward 
fulfillment of that requirement. 
8 C.F.R. § 214.2(l)(l)(ii)(A). 
II. EMPLOYMENT ABROAD 
The only issue we will discuss in this decision is whether the Petitioner established that the 
Beneficiary had at least one continuous year of full-time employment abroad with a qualifying 
organization within the three years immediately preceding the filing of the petition. 8 C.F.R. 
§ 214.2(1)(3)(iii). Specifically, the question is whether the Beneficiary's periods of physical 
presence in the United States in B l/B2 status should be counted towards the required one-year 
period of continuous employment abroad. 
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Maller of B-. Inc. 
A. Facts and Procedural History 
The Petitioner filed the instant Form 1-129 on November 16, 2017. 2 The petition form states that the 
Beneficiary has been employed by the Petitioner's parent entity from February 1, 2017, through the 
present and that prior to this time, the Beneficiary was employed by the parent entity's Russian 
affiliate from August 5, 2016 , through January 3 1, 2017 . The aggregate of these two time periods of 
employment totals to 469 days . However, records show that during this 469-day period the 
Beneficiary entered and remained in the United States in 8-1 or 8-2 nonimmigrant status for a total 
of 142 days during the following time periods: ( 1) September 20 to October 3, 2016; (2) March 6 to 
May 5, 2017 ; and (3) June 26 to August 31, 2017 . 
In the RFE, the Director noted the above dates of the Beneficiary's absences and informed the 
Petitioner that the extended trips to the United States may not be deemed brief and therefore they 
may preclude the Beneficiary from being able to meet the foreign employment requirement, which 
states that the Beneficiary must have one continuous year of full-time employment abroad in the 
three years preceding the filing of the petition . The Petitioner was asked to provide evidence to 
demonstrate that the Beneficiary meets this requirement. . ' 
In response, the Petitioner stated that each of the Beneficiary ' s periods of stay in the United States 
was for less than 90 days and should therefore be deemed as brief The Petitioner also provided the 
Beneficiary's translated paystubs demonstrating full-time employment with from 
February through November 2017 as well as payroll records demonstrating full-time employment 
with ____ from August 2016 through January 2017 .3 
In the denial , the Director subtracted the 142 days during which the Beneficiary was physically 
present in the United States from the 469 total number of days claimed _employment abroad and 
determined that the Beneficiary had only 327 days - less than one year - of employment abroad with 
a qualifying entity during the relevant three-year time period that preceded the filing of this petition . 
On appeal, the Petitioner disputes the denial and asserts that the Beneficiary's absences were brief. 
The Petitioner explains that it sought guidance from the USCIS website, which does not state that 
~ Given that the one-year period of foreign employment with a qualifying entity must have taken place between the date 
of filing and three years prior to that date, the relevant three-year time period we will use as our point of reference here is 
from November 16, 2014, through the date of filing. 
·1 The translated payroll record from lists the year 2016 next to each month of the Beneficiary's six­
month period of employment with that entity. With the exception of January, the payroll record lists all the other months 
in ascending order from August through December; it lists January 2016 last, despite the fact that January 2016 precedes 
all the months from August through December 2016. However, we have reviewed the Russian language original payroll 
record, which shows 20_16 next to the first five months listed - August through December- and 2017 for the final month 
of January. When this information is considered within the context of the Russian language original payroll record and 
the information in the petition form - which indicates that the Beneficiary was employed by from August 
2016 through January 2017 - it appears that the year "2016'" next to the month of January in the translated payroll record 
was likely a typographical error and is not indicative of an inconsistency between the Petitioner's claim and the 
supporting evidence. 
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Maller t~f B-. Inc. 
the Beneficiary must be physically present outside of the United States in order to meet the foreign 
employment requirement. The Petitioner further contends that the RFE also neglected to mention 
this requirement. 
B. Analysis 
In the present matter, the Petitioner does not dispute the Beneficiary's presence in the United States 
during the time period in question; rather, the Petitioner's appeal focuses on whether the 
Beneficiary's absences were long enough to be deemed interruptive of the Beneficiary's period of 
employment abroad.4 Upon review, we find that the Petitioner's focus on whether the absences were 
"brief' is misplaced as the definition of "intracompany transferee" acknowledges that while such 
visits "shall not be interruptive of the one year of continuous employment abroad," the time periods 
during which a beneficiary is physically present in the United States "shall not be counted toward 
fulfillment of that requirement." 8 C.F.R. § 214.2(1)(l)(ii)(A). 
Therefore, the Director correctly subtracted the 142 days during which the Beneficiary was 
· physically present in the United States from the 469 total number of days of claimed employment 
abroad. The remaining 327 days is less than one year and therefore the Petitioner did not establish 
that the Beneficiary met the foreign employment criteria, which requires a beneficiary to have one 
continuous year of full-time employment with a qualifying entity during the relevant three-year time 
period that preceded the filing of this petition. Because the remaining number of days during the 
· relevant time period is less than one year, we do not need to analyze whether those 142 days were 
"brief' or interruptive of the Beneficiary's employment abroad. Accordingly, in this matter, it is not 
the length of the Beneficiary's visits in the United States in 8-1 or B-2 status, but rather the 
insufficient time spent working abroad as a result of those visits that renders the total time spent 
working abroad with a qualifying entity insufficient to meet the required period of one year. 5 See id. 
For the reasons discussed above, we find that the Beneficiary was employed abroad for only 327 
days during the relevant three-year time period. 
III. CONCLUSION 
The Petitioner did not establish that the Beneficiary had one year of continuous employment with a 
qualifying entity abroad in the three years preceding the filing of the petition. 
4 To the extent that the Petitioner relied on information on the USCIS website and the RFE's lack of notice regarding this 
issue, we note that the USCIS website only contains filing instructions and general information regarding this 
classification. The specific eligibility criteria is found in the relevant sections of the Code of Federal Regulations and the 
Immigration and Nationality Act. Further, while the RFE often provides relevant definitions and some eligibility 
criteria. it is not the sole source from which petitioners should expect to obtain a comprehensive list of eligibility 
requirements; rather. the purpose of an RFE is to elicit further information that clarifies whether eligibility for the benefit 
sought has been established. 8 C.F.R. § l03.2(b)(8). 
5 The fact that the Beneficiary continued to receive a full salary during his physical presence in the United States does 
not exempt the Petitioner from the regulatory provisions discussed herein. 
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Maller ofB-, Inc. 
ORDER: The appeal is dismissed. 
Cite as Matter of B-, Inc., ID# 1727686 (AAO Nov. 8, 2018) 
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