dismissed L-1A Case: Software

(b)(6)
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Service 
Administrative Appeals Office (AAO) 
20 Massachusetts Ave. N.W ., MS 2090 
Washington , DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
DATE: MAY 2 7 2014 Office: CALIFORNIA SERVICE CENTER FILE: 
INRE: Petitioner: 
Beneficiary: 
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(15)(L) of the Immigration 
and Nationality Act, 8 U.S.C. § 1101(a)(15)(L) 
ON BEHALF OF PETITIONER: 
SELF-REPRESENTED 
INSTRUCTIONS: 
Enclosed please find the decision of the Administrative Appeals Office (AAO) in your case. 
This is a non-precedent decision. The AAO does not announce new constructions of law nor establish 
agency policy through non-precedent decisions. If you believe the AAO incorrectly applied current law or 
policy to your case or if you seek to present new facts for consideration, you may file a motion to reconsider 
or a motion to reopen, respectively. Any motion must be filed on a Notice of Appeal or Motion (Form 
I-290B) within 33 days of the date of this decision. Please review the Form I-290B instructions at 
http://www.uscis.gov/forms for the latest information on fee, filing location, and other requirements. 
See also 8 C.F.R. § 103.5. Do not file a motion directly with the AAO. 
Thank you, 
~ / Ron Rosenberg 
rchief , Administrative Appeals Office 
www.usds.gov 
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DISCUSSION: The Director, California Service Center, denied the nonimmigrant visa petition. 
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 classify the beneficiary as an L-lA 
nonimmigrant intracompany transferee pursuant to section 101(a)(15)(L) of the Immigration and 
Nationality Act (the Act), 8 U.S.C. § 1101(a)(15)(L). The petitioner is an Illinois corporation 
engaged in the development and sale of digital dictation software. The the petitioner indicates that 
it has a qualifying relationship with Ltd., the beneficiary's United Kingdom 
employer. The petitioner seeks to employ the beneficiary in the capacity of North American 
regional manager for a period of three years. 
The director denied the petition, concluding that the petitioner did not establish that the beneficiary 
was employed abroad in a qualifying managerial or executive capacity. Further, the director 
concluded that the petitioner had not demonstrated that it has a qualifying relationship with the 
beneficiary's foreign employer. 
The petitioner subsequently filed an appeal. The director declined to treat the appeal as a motion 
and forwarded the appeal to the AAO. On appeal, the petitioner submits additional evidence and 
requests that this office reconsider the director's decision to deny the petition. 
I. The Law 
To establish eligibility for the L-1 nonimmigrant visa classification, the petitioner must meet the 
criteria outlined in section 101(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.P.R. § 214.2(1)(3) states that an individual petition filed on Form I-129, 
Petition for a Nonimmigrant Worker, 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 . 
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(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 education, training, and employment qualifies him/her 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. 
II. The Issues on Appeal 
A. Managerial and Executive Capacity Abroad 
The first issue addressed by the director is whether the petitioner has established that the 
beneficiary has been employed abroad in a managerial or executive capacity. 
Section 101(a)(44)(A) of the Act, 8 U.S.C. § 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 
organiz ation, 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 actlvtty 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. § 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; 
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(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 from higher-level executives, 
the board of directors, or stockholders of the organization. 
Finally, if staffing levels are used as a factor in determining whether an individual is acting in a 
managerial or executive capacity, USCIS must take into account the reasonable needs of the 
organization, in light of the overall purpose and stage of development of the organization. Section 
101(a)(44)(C) of the Act. 
1. Facts 
The petitioner states that it is a wholly owned subsidiary of Ltd, a company based 
,in New Zealand. The petitioner explained that is a "world leading provider of 
software" and that it has locations in twenty-five countries. The petitioner indicated on 
the Form I-129 that it earned over $2 million in 2011 and that it has thirteen employees. The 
petitioner further stated that the beneficiary has been employed with its claimed affiliate located in 
the United Kingdom since November 2007 and described his current 
position as follows: 
(The beneficiary] is currently employed as UK Legal & Professional Manager. 
He is responsible for all accounts in these sectors ensuring a good relationship is 
maintained between the customer and the company. He is also responsible for the 
sales targets in these sectors ensuring they are achieved and maintaining working 
with his colleagues in all areas of the business. 
The petitioner's initial evidence included no additional information regarding the beneficiary's 
overseas employment. Accordingly, the director later issued a request for evidence (RFE) advising 
the petitioner that the initial evidence was insufficient to establish that the foreign entity employs 
the beneficiary in a qualifying managerial or executive capacity. Specifically, the director 
requested that the petitioner submit: (1) copies of the beneficiary's training, pay or other personnel 
records; (2) an organizational chart for the foreign entity including the names of all members of the 
beneficiary's immediate department , their job titles, a summary of their duties , education levels 
and salaries; (3) a letter from an authorized representative of the foreign entity describing the 
managerial or executive decisions made by the beneficiary, his typical duties, and the percentage 
of time he devotes to each duty. 
In response, the petitioner submitted an employment contract dated November 1, 2011 between the 
beneficiary and the foreign entity whereby the foreign entity contracted to employ the beneficiary 
as legal and professional manager. Appendix A of the agreement listed the beneficiary's duties as 
follows: 
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• Develops a business plan and sales strategy for the region that ensures 
attainment of company sales goals and profitability. 
• Responsible for the performance and development of the Account Executives. 
• Prepares action plans by individuals as well as by team for effective search of 
sales leads and prospects. 
• Initiates and coordinates development of action plans to penetrate new 
markets as agreed in the annual plan. 
• Assists in the development and implementation of marketing plans as needed. 
• Conducts one-on-one review with all Account Executives to build more 
effective communications, to understand training and development needs, and 
to provide insight for the improvement of Account Executive's sales and 
activity performanc e. 
• Provide weekly pipeline reporting for each member of the sales team. 
• Achieve accurate sales forecasting on line with agreed targets. 
• Provides timely feedback to senior management regarding performance. 
• Provides timely, accurate, competitive pricing on all completed prospect 
applications submitted for pricing and approval , while striving to maintain 
maximum profit margin. 
• Achieves own personal sales target. 
• Maintains accurate records of all pricings, sales, and activity reports submitted 
by Account Executives. 
• Creates and conducts proposal presentations and RFP responses. 
• Assists Account Executives in preparation of proposals and presentations. 
• Controls 
expenses to meet budget guidelines. 
• Ensures that all Account Executives meet or exceed all activity standards for 
prospecting calls, appointments, presentations, proposals, forecasting and 
closes. 
• Maintains contact with all clients in the market area to ensure high levels of 
client satisfaction. 
In denying the petition, the director stated that the beneficiary ' s duty description includes both 
managerial and non-managerial tasks and emphasized that the petitioner failed to clarify the 
amount of time devoted to specific duties , such that it could be concluded that he performs 
primarily managerial duties. The director also pointed to the petitioner's failure to submit the 
requested organizational chart for the foreign entity as necessary to support its claim that the 
beneficiary is employed in a qualifying managerial or executive capacity. 
On appeal, the petitioner submits additional evidence with respect to the beneficiary's foreign 
employment and requests that this office reconsider the director's denial. This evidence includes 
an organizational chart for the foreign entity, an expanded duty description for the beneficiary 
which assigns percentages to his various duties, position descriptions for the beneficiary's claimed 
subordinates within the foreign entity, and evidence of their educational credentials and salaries. 
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The petitioner also submits new evidence in an effort to document the nature of the beneficiary's 
duties abroad. For instance, the petitioner submitted a "legal & professional sales strategy" 
document drafted by the beneficiary, a listing of client accounts overseen by the beneficiary, and a 
request for proposal response drafted by the beneficiary. 
2. Analysis 
Upon review of the petition and the evidence, and for the reasons discussed herein, the petitioner 
has not established that the beneficiary has been employed in a qualifying managerial or executive 
capacity abroad. 
As a preliminary matter, we note that the director, prior to denying the petition , issued an RFE and 
requested that the petitioner submit a duty description indicating the amount of time the 
beneficiary devotes to his managerial or executive duties and an organizational chart for the 
foreign entity including the names of all members of the beneficiary 's immediate department , their 
job titles, a summary of their duties, education levels and salaries. The petitioner did not submit 
this evidence in response to the director's request and now provides this evidence on appeal. 
The regulation states that the petitioner shall submit additional evidence as the director, in his or 
her discretion, may deem necessary. The purpose of the request for evidence is to elicit further 
information that clarifies whether eligibility for the benefit sought has been established , as of the 
time the petition is filed. See 8 C.F.R. §§ 103.2(b)(8) and (12). The failure to submit requested 
evidence that precludes a material line of inquiry shall be grounds for denying the petition. 8 
C.F.R. § 103.2(b)(14). 
Where, as here, a petitioner has been put on notice of a deficiency in the evidence and has been 
given an opportunity to respond to that deficiency, the AAO will not accept evidence offered for 
the first time on appeal. See Matter of Soriano, 19 I&N Dec. 764 (BIA 1988); see also Matter of 
Obaigbena, 19 I&N Dec. 533 (BIA 1988). If the petitioner had wanted the submitted evidence to 
be considered, it should have submitted the documents in response to the director's request for 
evidence. Id. Under the circumstances, the AAO need not and does not consider the sufficiency of 
the evidence submitted on appeal. Consequently, this office will not consider the duty description 
submitted for the beneficiary on appeal or the newly submitted evidence regarding the 
beneficiary's subordinates and the foreign entity's staffing levels and organizational structure. 
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(l)(3)(ii). 
Whether the beneficiary is a managerial or executive employee turns on whether the petitioner has 
sustained its burden of proving that his duties are "primarily" managerial or executive. See sections 
101(a)(44)(A) and (B) of the Act. Here, the petitioner fails to document what proportion of the 
beneficiary's duties would be managerial functions and what proportion would be non-managerial. 
As observed by the director, the petitioner lists the beneficiary's duties as including both 
managerial and administrative or operational tasks, but failed to quantify the time the beneficiary 
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spends on them. This failure of documentation is important because several of the beneficiary's 
daily tasks, such as providing weekly pipeline reporting for each member of the sales team; 
achieving accurate sales forecasting; achieving his personal sales targets; providing timely, 
accurate, competitive pricing on all completed prospect applications ; maintaining accurate records 
of all pricing, sales and activity reports; creating request for proposal responses; and maintaining 
contact with all clients in the market area, do not fall directly under traditional managerial duties as 
defined in the statute. For this reason, the AAO cannot determine whether the beneficiary is 
primarily performing the duties of a function manager. See IKEA US, Inc. v. U.S. Dept. of Justice , 
48 F. Supp. 2d 22, 24 (D.D.C. 1999). 
Furthermore, new evidence submitted on appeal confirms that the beneficiary has been performing 
non-qualifying duties consistent with the provision of goods and services. For example, the 
petitioner provides a response to a request for proposal drafted by the beneficiary demonstrating 
that the beneficiary is directly engaged in the performance of operational duties. Further, the 
petitioner submitted listings of the beneficiary's client accounts, suggesting that the beneficiary is 
more closely engaged with monitoring sales and service and assuring that customer needs are met, 
rather than establishing and implementing broader goals and policies. In total, the evidence is 
insufficient to establish that the beneficiary performs primarily managerial or executive duties. 
Beyond the required description of the job duties, United States Citizenship and Immigration 
Service (USCIS) reviews the totality of the record when examining the claimed managerial or 
executive capacity of a beneficiary , including the company's organizational structure, the duties of 
the beneficiary ' s subordinate employees, the presence of other employees to relieve the beneficiary 
from performing operation al duties, the nature of the business, and any other factors that will 
contribute to understanding the beneficiary's actual duties and role in a business. Here, the 
petitioner failed to provide the information requested regarding the foreign entity's organizational 
structure and the beneficiary's subordinates. Without this material information, the director 
reasonably concluded that the totality of the evidence in the record was insufficient to establish 
that the beneficiary has been employed in a qualifying managerial or executive capacity abroad. 
As discussed above, this office need not and does not consider the sufficiency of previously 
requested evidence submitted on the first time on appeal. 
As such, our determination is based primarily on the job descriptions submitted at the time of filing 
and in response to the RFE, which are insufficient to establish that the beneficiary is employed 
abroad in a qualifying managerial or executive capacity. Accordingly , the appeal must be 
dismissed. 
B. Qualifying Relationship 
The next issue addressed by the director is whether the petitioner established that it has a 
qualifying relationship with the foreign employer. 
The pertinent regulations at 8 C.F.R. § 214.2(l)(l)(ii) define the term "qualifying organization" and 
related terms as follows: 
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(G) Qualifying organization means a United States or foreign firm , corporation, 
or other legal entity which: 
(1) Meets exactly one of the qualifying relationships specified in the 
definitions of a parent, branch , affiliate or subsidiary specified in 
paragraph (l)(1)(ii) of this section; 
(2) Is or will be doing business (engaging in international trade is not 
required) as an employer in the United States and in at least one 
other country directly or through a parent , branch, affiliate or 
subsidiary for the duration of the alien's stay in the United States 
as an intracompany transferee[.] 
* * * 
(I) Parent means a firm , corporation, or other legal entity which has 
subsidiaries. 
* * * 
(K) Subsidiary means a firm , corporation, or other legal entity of which a parent 
owns, directly or indirectly , more than half of the entity and controls the 
entity; or owns, directly or indirectly, half of the entity and controls the 
entity; or owns, directly or indirectly, 50 percent of a 50-50 joint venture 
and has equal control and veto power over the entity; or owns, directly or 
indirect! y, less than half of the entity, but in fact controls the entity. 
* * * 
(L) Affiliate means 
(1) One of two subsidiaries both of which are owned and controlled by the 
same parent or individual, or 
(2) One of two legal entities owned and controlled by the same group of 
individuals, each individual owning and controlling approxim ately the 
same share or proportion of each entity .... 
1. Facts 
On the Form I-129, the petltwner stated that the beneficiary ' s United Kingdom employer is 
Ltd. and indicated that it is a subsidiary of this company. The petitioner did not 
provide evidence of the ownership of The petitioner's initial evidence included 
a stock certificate indicating that it has issued lOU shares to Ltd. The petitioner also 
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submitted its Illinois articles of incorporation which indicate that the company was authorized to 
issue 10,000 common shares and proposed to issue 100 shares at the time of incorporation in 
February 2003. 
The director issued an RFE requesting that the petitioner provide additional evidence to document 
the ownership of both companies. The director stated that such evidence could include the 
following with respect to each entity, where relevant: (1) the most recent Security and Exchange 
Commission Form 10-K; (2) the most recent annual report; (3) a detailed list of owners , their 
names and their percentages of ownership; (4) meeting minutes; (5) articles of incorporation; (6) 
stock purchase agreements; (7) stock certificates, (8) a stock ledger; (9) proof of stock purchases, 
and/or (10) income tax returns. 
In response , the petitioner provided a chart identifying eight companies comprising its corporate 
group. The chart indicated that Ltd., a holding company, owns 100% of 
indicates that 
100% owned by 
financial statement for 
petitioner]." 
Ltd, both located in New Zealand. Further, the chart 
is 75.1% owned by Ltd. and that the petitioner is 
Ltd. Additionally, the petitioner submitted a 2013 com iled 
stating that ' also owns 100% of 
Ltd. and [the 
The petitioner also provided documentation of its ownership including a "Memorandum of Action 
by Sole Shareholder" and a "Memorandum of Action of Directors" both dated March 31, 2003. 
The aforementioned corporate documents indicate that '' " of New 
Zealand owns 100 shares in the petitioner through the payment of £100 consideration. Further, the 
petitioner's 2012 IRS Form 1120 U.S Corporation Income Tax Return states in Schedule G that 
100% of its stock is owned by of New Zealand. 
As noted, the director denied the petition, finding that the petitioner had not established that it had 
a qualifying relationship with the foreign entity. 
On appeal, the petitioner submits additional evidence meant to demonstrate that it has a qualifying 
relationship with the beneficiary's foreign employer. The petitioner submits a share certificate No. 
2 dated August 2, 2003 stating that owns 50 shares in the foreign entity at a fully 
paid share price of £1.00 per share. The petitioner also alternatively submits a certificate No. 3 
dated August 1, 2006 that also indicates that owns fifty shares in the foreign entity. 
Further, the petitioner re-submits the corporate entity chart previously submitted on the record 
which reflects that is 75.1% owned by . Ltd. 
2. Analysis 
Upon review, and for the reasons discussed herein, the petitioner has not established that it has a 
qualifying relationship with the foreign entity. 
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To establish a "qualifying relationship" under the Act and the regulations, 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 
generally section 101(a)(15)(L) of the Act; 8 C.P.R. § 214.2(1). 
The 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 for purposes of this visa classification. Matter of Church Scientology 
International, 19 I&N Dec. 593 (Comm'r 1988); see also Matter of Siemens Medical Systems, Inc., 
19 I&N Dec. 362 (Comm'r 1986); Matter of Hughes, 18 I&N Dec. 289 (Comm'r 1982). In the 
context of this visa petition, ownership refers to the direct or indirect legal right of possession of 
the assets of an entity with full 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 International, 19 I&N Dec. at 595. 
In the RFE the director requested that the petitioner submit evidence to demonstrate ownership in 
the foreign entity, including but not limited to the following: (1) the most recent Security and 
Exchange Commission Form 10-K; (2) a recent annual report; (3) a detailed list of owners, their 
names and their percentages of ownership; (4) meeting minutes; (5) articles of incorporation; (6) 
stock purchase agreements; (7) stock certificates, (8) a stock ledger; (9) proof of stock purchases, 
or (10) income tax returns. However, the petitioner submitted none of this documentation relevant 
to the foreign entity. 
Again, the regulation states that the petitioner shall submit additional evidence as the director , in 
his or her discretion, may deem necessary. The purpose of the request for evidence is to elicit 
further information that clarifies whether eligibility for the benefit sought has been established, as 
of the time the petition is filed. See 8 C.P.R. §§ 103.2(b )(8) and (12). The failure to submit 
requested evidence that precludes a material line of inquiry shall be grounds for denying the 
petition. 8 C.P.R. § 103.2(b )(14). 
Where, as here, a petitioner has been put on notice of a deficiency in the evidence and has been 
given an opportunity to respond to that deficiency, the AAO will not accept evidence offered for 
the first time on appeal. See Matter of Soriano, 19 I&N Dec. 764 (BIA 1988); see also Matter of 
Obaigbena, 19 I&N Dec. 533 (BIA 1988). If the petitioner had wanted the submitted evidence to 
be considered, it should have submitted the documents in response to the director's request for 
evidence. !d. Under the circumstances, the AAO need not and does not consider the sufficiency of 
the evidence of ownership in the foreign entity that has been submitted on appeal. 
Regardless, the petitioner has submitted conflicting statements of ownership in the foreign entity 
thereby leaving question as to its actual ownership. For instance, the petitioner has submitted two 
share certificates (No. 2 and 3), dated approximately three years apart, which both state that the 
owns 50 shares in the foreign entity. But, the petitioner has also alternatively 
stated in the provided corporate entity chart that the foreign entity is only 75.1% owned by 
Ltd. Furthermore , as general evidence of a petitioner's claimed qualifying 
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relationship, stock certificates alone are not sufficient evidence to determine whether a stockholder 
maintains ownership and control of a corporate entity. The corporate stock certificate ledger, stock 
certificate registry, corporate bylaws , and the minutes of relevant annual shareholder meetings 
must also be examined to determine the total number of shares issued, the exact number issued to 
the shareholder, and the subsequent percentage ownership and its effect on corporate control. 
Additionally, 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 actual control of the entity. See Matter of Siemens Medical Systems, Inc., supra. 
However, as noted, the petitioner failed to submit the aforementioned evidence after being directly 
requested to do so by the director and it has not provided this additional evidence on appeal. 
Without full disclosure of all relevant documents, USCIS is unable to determine the elements of 
ownership and control. 
Therefore, without a clear statement and consistent supporting evidence regarding the ownership 
of the foreign entity, it cannot be determined whether a qualifying relationship exists. As such, the 
petitioner has not established that it has a qualifying relationship with the foreign entity. For this 
additional reason, the appeal must be dismissed. 
III. Conclusion 
The appeal will be dismissed for the above stated reasons. 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; Matter ofOtiende, 26 I&N Dec. 127, 128 (BIA 2013). Here, that burden has 
not been met. 
ORDER: The appeal is dismissed.