dismissed L-1A Case: Sign Manufacturing

U.S. Citizenship 
and Immigration 
Services 
MATTER OF S-S-INC. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: MAR. 21. 2019 
APPEAL OF CALIFORNIA SERVICE CENTER DECISION 
PETITION: FORM 1-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a sign company, seeks to continue the Beneficiary's temporary employment as its general 
manager under the L-lA nonimmigrant classification for intracompany transferees.1 Immigration and 
Nationality Act (the Act) section 10l(a)(l5)(L), 8 U.S.C. § l 10l(a)(l5)(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 of the California Service Center denied the petition, concluding that the record did not 
establish, as required, that the new office had developed to an extent that it was able to support a 
managerial and executive position. More specifically, the Director found that the Petitioner had not 
shown that: (1) it was doing business, as the regulations define that term; (2) the new office was 
financially able to support the Beneficiary's intended position; and (3) the Beneficiary's position was 
primarily that of a manager or executive. 
The matter is now before us on appeal. In its appeal, the Petitioner submits additional evidence and 
asserts that the Director did not cite any standard for what constitutes doing business, or take the 
Petitioner's circumstances into account when considering the Beneficiary's managerial capacity. 
Upon de nova review, we will dismiss the appeal. 
I. LEGAL FRAMEWORK 
To establish eligibility for the L-lA nonimmigrant visa classification, 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 to enter the United States temporarily to 
1 The Petitioner previously filed a "new office" petition on the Beneficiary's behalf which was approved for the period 
from April 17, 2017, until April 16, 2018. A "new office" is an organization that has been doing business in the United 
States through a parent, branch, affiliate, or subsidiary 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 one year within the date of approval of the petition to 
support an executive or managerial position. 
Matter ofS-S-Inc. 
continue rendering his or her services to the same employer or a subsidiary or affiliate thereof in a 
managerial or executive capacity. Id. 
A petitioner seeking to extend an L-lA petition that involved a new office must submit a statement of 
the beneficiary's duties during the previous year and under the extended petition; a statement 
describing the staffing of the new operation and evidence of the numbers and types of positions held; 
evidence of its financial status; evidence that it has been doing business for the previous year; and 
evidence that it maintains a qualifying relationship with the beneficiary's foreign employer. 8 C.F.R. 
§ 214.2(1)(14)(ii). 
11. EXTENSION OF VALIDITY OF NEW OFFICE PETITION 
A Doing Business 
A petition filed to extend the validity of a new office petition must include evidence that the United 
States entity has been doing business for the previous year. 8 C.F.R. § 214.2(1)(14)(ii)(B). "Doing 
business" means the regular, systematic, and continuous provision of goods, services, or both, by a 
qualifying organization and does not include the mere presence of an agent or office of the qualifying 
organization in the United States and abroad. 8 C.F.R. § 214.2(1)(l)(ii)(H). 
A Transaction Detail Report for the period from April 1, 2016 through March 30, 2018 listed 19 
invoices issued between July 1, 2017 and the filing date of March 20, 2018: 
July 2017 8 invoices issued 
August 3 
September 3 
October 2 
November 0 
December 1 
January 2018 0 
February 1 
March 1-20 1 
The Director denied the petition, stating that the Petitioner's provision of goods and services has been 
"limited" rather than "regular, systematic, and continuous prior to the time of filing." The Director 
did not consider invoices issued after the petition's filing date, because the Petitioner must establish 
eligibility at the time of filing. See 8 C.F.R. § 103 .2(b )(1 ); see also Matter of Michelin Tire Corp., 
17 I&N Dec. 248, 249 (Reg'l Comm'r 1978). 
On appeal, the Petitioner asserts that there is no statutory definition of the volume of business that a 
company must conduct in order for the activity to be regular, systematic, and continuous. In the 
absence of a statutory definition, we rely on the common understanding of these terms, which rule out 
approval of the petition when an entity's business activity is sporadic or infrequent. Furthermore, 
because the burden of proof rests on the Petitioner, it is the Petitioner's responsibility to show that its 
provision of goods or services was regular, systematic, and continuous. 
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Matter ofS-S-Inc. 
Because there are so many types of businesses, a single blanket definition would not be feasible. The 
absence of a single, fixed standard does not prohibit the Director from making a finding regarding the 
Petitioner's business activity. The Petitioner has not explained how a sign company that completed 
only three sales between October 20, 2017, and March 20, 2018, was engaged in the regular, 
continuous, and systematic provision of goods or services during that five-month period leading up to 
the filing of the petition. 
The Petitioner argues that "[a] business such as Petitioner ... will always have a slow start in its early 
stages of operation," and that the Director "cannot expect a brand new non-retail service oriented 
business like Petitioner ... to generate revenue of several hundred thousand dollars in the first two 
quarter[s] of its operations." The Petitioner, on whom the burden of proof rests, has not shown that 
intervals of several weeks between sales are typical for the Petitioner's industry. The Petitioner itself 
did not anticipate such gaps. In its 2016 business plan, the Petitioner projected $556,200 in first-year 
sales. The Petitioner, however, did not approach this goal. In the eight and a half months after the 
Petitioner issued its first invoice in July 2017, the 19 invoices yielded an aggregate gross total of 
$20,576, roughly 3.7% of the Petitioner's projected first-year sales revenue. 
The Director relied upon the Petitioner's projections in the business plan when the Director approved 
the new office petition. If those projections were unrealistic or inaccurate, then the approval rested on 
incorrect information and the Director did not err by refusing to extend the petition's validity. We 
note that, on appeal, the Petitioner submits a new business plan, in which the financial projections are 
significantly lower than those projected in the plan from 2016. These revisions amount, in effect, to 
a stipulation that the initial goals were not achievable. 
The Petitioner has not shown that its sales activity met the definition of "doing business" when it filed 
the extension petition. 
B. Financial Status 
Related to the question of doing business, the Director also denied the petition based on the evidence 
of the Petitioner's financial status. A new office can initially rely on the foreign entity to remunerate 
the Beneficiary, but the U.S. entity must itself be able to support the managerial or executive position 
within one year. See 8 C.F.R. § 214.2(1)(3)(v)(C). Because the Director requires evidence of this 
ability in order to make an informed decision, a petition to extend the validity of a new office petition 
must include evidence of the financial status of the United States operation. See 8 C.F.R. 
§ 214.2(1)(14)(ii)(E). 
As noted above, the Petitioner initially anticipated $556,200 in first-year sales to offset $514,213 in 
first-year costs, but the company took in less than $21,000 by the time of filing. The Petitioner's 2017-
2018 income tax return showed a net loss of $61,507 for the company's first year of existence. The 
Petitioner's gross income prior to the filing date would cover about half of the Beneficiary's annual 
salary, without taking into account any of the company's other expenses. 
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Matter ofS-S-Inc. 
Citing a balance sheet for March 31, 2018 (the same month as the filing date), the Petitioner noted that 
it showed total assets of $73,251. The same balance sheet, however, showed $186,143 in current 
liabilities (i.e., expenses due for payment within one calendar year), resulting in net equity of 
-$112,892. The submitted financial evidence does not show that the Petitioner had reached, or even 
approached, a level of self-sufficiency that would permit the U.S. employer to support a managerial 
or executive position at the time of filing. 
The Petitioner cites the stronger financial position of the foreign affiliate. Evidence regarding the 
foreign company's financial position is not relevant, because the Petitioner must show that the new 
U.S. office, itself, is able to support a managerial or executive position within one year. Foreign 
support is taken into account only during the one-year, non-renewable "new office" period. 
The Petitioner has not shown that its financial status at the time of filing could reasonably support a 
managerial or executive position. 
C. Managerial or Executive Capacity 
The Director found that the Petitioner did not establish that it will employ the Beneficiary in a 
managerial or executive 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 
10l(a)(44)(A) of the Act. 
"Executive capacity" means an assignment within an organization in which the employee primarily 
directs the management of the organization or a major component or function of the organization; 
establishes the goals and policies of the organization, component, or function; exercises wide latitude 
in discretionary decision-making; and receives only general supervision or direction from higher-level 
executives, the board of directors, or stockholders of the organization. Section 10l(a)(44)(B) of the 
Act. 
Based on the statutory definitions of managerial and executive 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 prove that 
the Beneficiary will be primarily engaged in managerial or executive duties, as opposed to ordinary 
operational activities alongside the Petitioner's other employees. See Family Inc. v. USCIS, 469 F.3d 
1313, 1316 (9th Cir. 2006); Champion World, 940 F.2d 1533. 
When examining the managerial or executive capacity of a given beneficiary, we will look to the 
petitioner's description of the job duties. The petitioner's description of the job duties must clearly 
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Matter ofS-S-Inc. 
describe the duties to be performed by the beneficiary and indicate whether such duties are in a 
managerial or executive 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 a beneficiary's 
subordinate employees, the presence of other employees to relieve a beneficiary from performing 
operational duties, the nature of the business, and any other factors that will contribute to 
understanding a beneficiary's actual duties and role in a 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. 
1. Duties 
Initially, the Petitioner stated that the Beneficiary's "U.S. pos1t10n is primarily executive," and 
described that position in the context of the definition of an executive capacity. On appeal, the 
Petitioner makes one reference to the Beneficiary's "senior executive capacity" but emphasizes a new 
claim that the Beneficiary "is a manager in the United States." The appellate brief includes a quotation 
and discussion of the regulatory definition of managerial capacity, but not executive capacity. 
The Petitioner listed the Beneficiary's claimed duties, including the approximate percentage of time 
devoted to each: 
• I 0% Review and analyze sales, production and activity reports, potential sales, and 
performance data to measure productivity and goal achievement to determine areas 
of cost reduction; 
• I 0% Direct, design, and implement strategic plans in a cost-effective and time­
efficient manner; 
• I 0% Ensure successful, on-time, and on-budget delivery of products and services; 
• 5% Remain alert concerning new trends in the Digital Printing Industry and collect 
information; 
• 15% Determine staff requirements, hire personnel, oversee training of new 
personnel and monitor management personnel activities; 
• I 0% Direct and approve products, price policies and discounts in order to ensure 
required competitive level, cost recovery, and profitability expected by the 
Company; 
• 8% Establish and communicate the Company's goals and objectives; 
• 5% Work on the setting up of a strategy for being time efficient and, therefore, 
reducing the Company's overall costs; 
• 2% Plan weekly management meetings to coordinate the operations of the 
Company; 
• 5% Prepare and analyze financial statements and forecasts; 
• 3% Oversee the promotion of the Company; 
• 7% Oversee the development of innovative marketing campaigns to increase the 
customer base; 
• 10% Direct the Company's competitive analysis. 
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Matter ofS-S-Inc. 
The Petitioner did not adequately show that the above breakdown accurately reflects the Beneficiary's 
daily responsibilities and duties. As the Beneficiary is the Petitioner's only employee, it is not clear 
who attends the "weekly management meetings" listed above, or to whom he communicates the 
company's goals. (Further below, we will address the Petitioner's staffing in more depth.) At the 
time of filing, the Beneficiary had sought to recruit key employees, but had not yet hired any, and 
therefore had no staffing-related duties. Also, as discussed above, the Petitioner's sales activity at the 
time of filing was minimal, and therefore would not have borne analysis over a significant share of the 
Beneficiary's time. 
Several described duties are vaguely worded, and do not show what actual tasks the Beneficiary 
performs relating to those duties. Examples include ensuring delivery and remaining alert to trends. 
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. 1103, 1108 (E.D.N.Y. 1989), aff'd, 905 F.2d 
41 (2d. Cir. 1990). The actual duties themselves will reveal the true nature of the employment. 
Reciting the beneficiary's vague job responsibilities or broadly-cast business objectives is not 
sufficient. Id 
The Petitioner has established the Beneficiary's discretionary authority over the petitioning entity, but 
has not provided enough details or substantiated information to show that his duties, at the time of 
filing, were primarily those of a manager or executive. 
2. Staffing 
We must take into account the reasonable needs of the organization in light of the overall purpose and 
stage of development of the organization if staffing levels are used as a factor in determining whether 
an individual is acting in a managerial or executive capacity. See section 10l(a)(44)(C) of the Act. 
However, the regulations provide strict evidentiary requirements for the extension of a "new office" 
petition and require consideration of the organizational structure and staffing levels of the Petitioner. 
See 8 C.F.R. § 214.2(1)(14)(ii)(D). The regulation at 8 C.F.R. § 214.2(1)(3)(v)(C) only allows the "new 
office" operation one year within the date of approval of the petition to support an executive or 
managerial position. If a business does not have the necessary staffing after one year to sufficiently 
relieve the beneficiary from performing operational and administrative tasks, the petitioner is 
ineligible for an extension. 
The Petitioner's business plan from 2016 indicated: "In Year 1, the Company will hire one Production 
Manager, one Production/Office Assistant, one Graphic Designer, one Sales Manager, and one 
Machine Operator." The Petitioner, however, did not hire fill any of these positions during its first 
year of operations ( covered by the new office petition). In the extension petition, the Petitioner stated 
that the Beneficiary "has relied on independent contractors to execute the design production tasks on 
a day to day basis," but now "is in the process of actively recruiting to fill the roles of Production 
Manager and Sales Manager." 
The assertion that the Petitioner contracted out "design production tasks" contradicts the Petitioner's 
own promotional literature in the record. A promotional flier stated that the company provides "[a]ll 
Matter ofS-S-Inc. 
service under one roof i.e. from Design to Printing." Printouts from the Petitioner's website indicated 
that the company prints signage materials "at our inhouse facility around the clock." Photographs of 
the Petitioner's business premises show several pieces of sign-making equipment. The Petitioner, 
however, did not have any employees other than the Beneficiary to operate that equipment. In this 
regard, the Petitioner's public assertion that it prints signs "at [its] inhouse facility" suggests that the 
Beneficiary performed this operational task himself. (If, on the other hand, the Petitioner's 
promotional claims were not true, then this would necessarily reflect on the Petitioner's overall 
credibility.) 
The Beneficiary's job description indicated that the Beneficiary would "analyze sales, production and 
activity reports, potential sales, and performance data," which raises the question of who prepares 
those reports for the Beneficiary's review. Similarly, the assertion that the Beneficiary will oversee 
or direct such functions as training, promotion, marketing, and competitive analysis presumes the 
presence of others (whether employees or contractors) to actually perform those functions. 
In the denial notice, the Director noted that the Petitioner had planned to have six employees at the 
end of the one-year new office period. However, when the Petitioner filed the extension petition, the 
Beneficiary was the company's only employee. 
On appeal, the Petitioner contends that the Director "failed to look to the totality of the circumstances" 
and asserts: "The facts at hand are highly similar to a case addressed by the Ninth Circuit Court of 
Appeals called Brazil Quality Stones v. Chertoff[53 l F.3d 1063 (9th Cir. 2008)]." We note that the 
Court affirmed the denial of the petition in the cited case. Brazil Quality Stones addressed a claimed 
manager who relied on contractors instead of subordinate employees. In the present case, the Director 
did not limit consideration to employees. Instead, the Director found that the Petitioner had "not 
established that the petitioner has hired any employees at the time of filing or sufficient contractors to 
relieve the beneficiary from primarily performing non-qualifying duties." The Director added: 
While you maintain that services to produce your organization[']s actual product have 
been contracted out to a vendor, significant amounts of non-qualifying duties remain 
due to overseeing tasks, meetings, and policies and goals for which you have no 
employees hired at the time of filing to direct. 
The Director also observed that any employees hired after the filing date cannot retroactively establish 
that the Petitioner met all eligibility requirements at the time of filing. 
The Petitioner, on appeal, asserts that "[t]here is no significant factual difference" between the initial 
filing and the extension petition "which would prompt a denial" of the second petition. The first 
petition, however, was a new office petition, in which the Petitioner set forth plans for the coming 
year. In the extension petition, the burden is on the Petitioner to show that it has realized those plans. 
Without such a showing, evidence that warrants approval of a new office petition may not suffice to 
justify extending that petition. 
In this instance, the approval of the new office petition rested in part on the Petitioner's assertion that 
it would hire six subordinate employees during the first year in order to relieve the Beneficiary from 
Matter ofS-S-Inc. 
having to perform the duties of those positions. The Director may properly take into consideration the 
extent to which the Petitioner has, or has not, fulfilled the first-year plans that justified the approval of 
the new office petition. 
Based on the deficiencies discussed above, the Petitioner has not established that the Beneficiary will 
be employed in a managerial or executive capacity under the extended petition. 
III. CONCLUSION 
The appeal will be dismissed for the above stated reasons, with each considered an independent and 
alternative basis for the decision. In visa petition proceedings, it is the petitioner's burden to establish 
eligibility for the immigration benefit sought. Section 291 of the Act, 8 U.S.C. § 1361. The Petitioner 
has not met that burden. 
ORDER: The appeal is dismissed. 
Cite as Matter ofS-S-Inc., ID# 2040694 (AAO Mar. 21, 2019)