dismissed L-1A Case: Software Development

U.S. Citizenship 
and Immigration 
Services 
In Re: 9456922 
Appeal of California Service Center Decision 
Form 1-129, Petition for L-lA Manager or Executive 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: AUG. 20, 2020 
The Petitioner, a software development and consulting company, seeks to continue the Beneficiary's 
temporary employment as its executive director under the L-lA nonimmigrant classification for 
intracompany transferees.1 Immigration and Nationality Act (the Act) section 101(a)(15)(L), 8 U.S.C. 
§ 1101(a)(15)(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 that, following its one-year new office period, the Petitioner is: (1) doing business, and (2) 
capable of supporting a managerial or executive position after its first year of operations. The Petitioner 
filed a motion to reopen. The Director granted the motion and withdrew the first ground for denial, but 
reaffirmed the second ground. The matter is now before us on appeal. 
In these proceedings, it is the Petitioner's burden to establish eligibility for the requested benefit. See 
Section 291 of the Act, 8 U.S.C. § 1361. Upon de nova review, we will dismiss the appeal. 
I. LAW 
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(I)(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. 
1 The Petitioner previously filed a "new office" petition on the Beneficiary's behalf which was approved for the period 
from October 1, 2017 until September 30, 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(I)(1)(ii)(F). The 
regulation at 8 C.F.R. § 214.2(I)(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. 
A petitioner seeking to extend an L-1A 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(I)(14)(ii). 
11. NEW OFFICE EXTENSION 
The Director determined that the Petitioner did not show its abi I ity to support a managerial or executive 
position at the end of the one-year new office period. More specifically, the Director concluded that 
the Petitioner did not: (1) show that the Beneficiary's position qualified as a managerial or executive 
capacity; (2) establish that the company's staffing warrants a managerial or executive position; and 
(3) establish the company's financial status. On appeal, the Petitioner refers to the Beneficiary's 
position as an executive capacity, and therefore we need not discuss the requirements of a managerial 
capacity. 
A. Executive Capacity 
The Petitioner must describe the duties the beneficiary will perform under the extended petition. See 
8 C.F.R. § 214.2(I)(14)(ii)(C). These duties must conform to a managerial or executive capacity as 
defined at 8 C.F.R. § 214.2(I)(1)(ii)(B) and (C). 
"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 101(a)(44)(B) of the 
Act. 
To be eligible for L-1A nonimmigrant visa classification as an executive, the petitioner must show 
that the beneficiary will perform all four of the high-level responsibilities set forth in the statutory 
definition at section 101(a)(44)(B) of the Act. If a petitioner establishes that the offered position meets 
al I four elements set forth in the statutory definition, the petitioner must then prove that the beneficiary 
will be primarily engaged in 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). In 
determining whether the beneficiary's duties will be primarily executive, we consider the description 
of the job duties, the company's organizational structure, the duties of the beneficiary's subordinate 
employees, the presence of other employees to relieve the beneficiary from performing operational 
duties, the nature of the business, and any other factors that will contribute to understanding the 
beneficiary's actual duties and role in the business. 
The Petitioner initially submitted a job description that divided the Beneficiary's duties into four broad 
areas of responsibility: 
I Management and Daily Operations, 25% of the Beneficiary's time 
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I Financial Planning, 20% 
I Marketing and Business Development, 25% 
I Client and Industry Relationships, 30% 
Within these four categories, the Petitioner listed individual tasks and responsibilities, including the 
following examples: 
I Supervise design of software systems 
I Implement programs and meet corporate goals and objectives 
I Design technical solutions and architecture of customer facing systems 
In a request for evidence, the Director asked for more details and stated that some of the duties appear 
to be operational rather than executive. In response, the Petitioner submitted a substantially revised 
job description, with most of the categories changed: 
I Leadership, 35% 
I Human Resources Management, 25% 
I Financial Management, 20% 
I Marketing and Business Development, 20% 
The descriptive language within these categories changed as well. The examples specified above are 
not in the second version of the job description. Instead, the revised job description includes new 
items such as these examples: 
I Provide leadership, direction and support to [the Petitioner's] Staff and Management 
through effective communication, goal-setting, delegation and performance 
evaluations 
I Guide and direct management team in the development, production, promotion and 
financial aspects of [the Petitioner's] services 
I Identify and develop priorities in conjunction with the management team 
The tasks listed under "Marketing and Business Development" are largely similar in both versions, 
but the Petitioner changed the amount of time that the Beneficiary would devote to those tasks. 
The purpose of the RFE is to elicit further information that clarifies whether eligibility for the benefit 
sought has been established. 8 C.F.R. § 103.2(b)(8). When responding to an RFE, a petitioner cannot 
materially change a beneficiary's job responsibilities. A petitioner must establish that the position 
offered to a beneficiary, when the petition was filed, merits classification as a managerial or executive 
position. See 8 C.F.R. § 103.2(b)(1). If the petitioner makes significant changes to the position, then 
it must file a new petition rather than seek approval of a petition that is not supported by the facts in 
the record at the time of filing. The information provided by the Petitioner in its response to the 
Director's RFE did not clarify or provide more specificity to the original duties of the position, but 
rather made substantial revisions to the job description, removing some tasks and adding others. As a 
result of these changes, the second job description was not a more detailed version of the first. Rather, 
the two job descriptions bear little resemblance to one another. 
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In the initial denial notice, the Director stated: "With the inconsistencies between the sets of duties 
and tasks assigned to the beneficiary, USCIS [U.S. Citizenship and Immigration Services] is unable 
to determine the duties performed." 
On motion from that decision, the Petitioner resubmitted the second version of the Beneficiary's job 
description. The Petitioner did not explain why it submitted two conflicting job descriptions for the 
Beneficiary, or otherwise address the Director's concerns about this issue. 
The Director again denied the petition, stating that the motion to reopen did not address or resolve the 
questions regarding the Beneficiary's duties. On appeal, the Petitioner asserts that the Beneficiary's 
duties are consistent with the duties of a chief executive as described on the Department of Labor's 
O*NET database. This information does not resolve the credibility issues that arise from the 
Petitioner's submission of two conflicting job descriptions. Because the record does not establish 
which of the job descriptions is more accurate, it is not necessary here to compare either of them to 
the O*NET information. 
The Petitioner's credibility also bears on an issue that the Petitioner raises on appeal. The Petitioner says 
that the Beneficiary's presence "in the U.S. has allowed the company to onboard local talent." The 
Petitioner contends that the Beneficiary's "presence in the U.S. is critical to the Company's growth." 
The Petitioner states that, owing to the expiration of his nonimmigrant status, "[t]he Beneficiary has spent 
the majority of ... 2018 outside of the United States, awaiting" the outcome of the extension petition and 
subsequent filings contesting its denial. More specifically, the Petitioner acknowledges that the 
Beneficiary "spent less than four months in the United States in 2018 and 2019." The Petitioner blames 
these absences on the expiration of the Beneficiary's nonimmigrant status, but that status did not expire 
until September 30, 2018, nine months into the year. Government records show that the Beneficiary was 
outside the United States for more than half of the one-year new office period (October 2017 through 
September 2018), although he had a valid nonimmigrant visa that allowed him to remain for the entire 
year. He departed the United States on February 2, 2018, and returned more than four months later on 
June 14th. He left again on July 1st, returning on August 20th before departing for a third time on 
September 14th. The expiration of his nonimmigrant status on September 30, 2018, did not require, and 
does not explain, the first two departures. These lengthy absences, coupled with the assertion that the 
Beneficiary "continues to direct and oversee the managerial staff" (one of whom is an outsourced worker 
in Ukraine), cast doubt on the claim that the company requires the Beneficiary's presence in the United 
States. 
Further credibility questions arise from the Petitioner's business plan. The document states that the 
Beneficiary's "salary grows at a healthy annual rate," but the record documents only five months of 
paychecks, each for the same amount. The cover page of the plan indicates that the company engages in 
"Software Product Development," "Cloud Migration," "UX & Visual Design" and related services, but 
significant parts of the document resemble a compilation of information from disparate sources, with 
varying degrees of direct relevance to the Petitioner's business, rather than a focused discussion of the 
Petitioner's goals and the means by which it seeks to achieve them. For instance, a passage, which begins: 
"Between 2010 and 2013, Seattle's tech talent pool increased by 28 percent," appears twice in the 
document. Another passage that appears twice reads: "By the end of 2017, revenue growth from 
information-based products will double the rest of the product/service portfolio for one third of Fortune 
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500 companies." The business plan is dated September 2018. The reference to "the end of 2017" as 
being in the future indicates that this information derives from an unidentified earlier source. 
Also, there are unexplained references to pharmaceutical research and development such as the passage 
excerpted below: 
Pharmaceutical companies can use safety as a competitive advantage in regulatory 
submissions and after regulatory approval, once the drug is on the market. Safety 
monitoring is moving beyond traditional approaches to sophisticated methods that 
identify possible safety signals arising from rare adverse events .... 
An early response to physician and patient sentiments could prevent regulatory and 
public-relations backlashes. 
The business plan does not include any discernible explanation for the relevance of the quoted passage. 
Because the Petitioner's plans are relevant to a new office extension petition, the questionable origin and 
relevance of the submitted business plan raise doubts about the actual planning and preparation that went 
into the establishment of the company. (The title of the document is "L-lA lntracompany Transfer Visa 
Business Plan," indicating that it was prepared specifically for submission with the petition, rather than 
as an instrument on which the company would actually rely in establishing and operating the business.) 
Owing to the inconsistencies and other credibility issues discussed above, the Petitioner has not 
sufficiently established that the Beneficiary's duties were primarily executive at the time the Petitioner 
filed the extension petition at the end of the one-year new office period. 
B. Staffing 
An extension petition involving a new office must include information about the staffing of the new 
operation, including the number of employees and types of positions held accompanied by evidence 
of wages paid to employees. See 8 C.F.R. § 214.2(I)(14)(ii)(D). 
When the Petitioner filed the extension petition, it claimed three employees in the United States, with 
plans to hire more workers listed in its business plan and on an organizational chart. As the Director 
noted, the Petitioner must establish eligibility at the time of filing, and therefore planned future hires 
cannot establish eligibility. 
The business plan referred to a full-time bookkeeper, who would also handle administrative tasks, to 
be hired in the second quarter of 2018, but payroll documents show that the Beneficiary and the 
business development manager were the only employees at the time of filing the petition on September 
14, 2018. A contractor provides certain financial services such as tax preparation, but the record does 
not show that this individual works full-time for the Petitioner as indicated in the job description. 
The Director concluded that the Beneficiary does not have "a subordinate level of managerial 
employees to direct." The Petitioner contends that the business development manager "manage[s] the 
day-to-day operations of the ... office" and supervises the systems administrator, who works offsite. 
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The record does not show that the business development manager was employed as a manager at the 
time of filing. In the absence of the bookkeeper, the non-qualifying tasks of that position had to devolve 
upon the only employees available to perform them (the Beneficiary and the business development 
manager). The Petitioner refers to the systems administrator as an employee, but the record shows that 
he is not an employee. A service agreement states that the Petitioner contracted the systems 
administrator as a "Service Provider," with the Petitioner as his "Customer." The agreement is dated 
August 15, 2018, shortly before the filing date, but the record does not show that he was actively 
providing services to the Petitioner at the time of filing. The earliest documented payment to this 
individual is a wire transfer from October 2018, after the filing date, and the Petitioner did not document 
any projects that the contractor had undertaken before the filing date. 
Furthermore, the record does not consistently support the assertion that the business development 
manager oversees the systems administrator. The organizational chart shows this hierarchy, but the 
business development manager's job description does not mention the systems administrator or 
authority over any of the tasks performed by the systems administrator. Instead, the description 
focuses on sales and client relationships. 
The job description states that the business development manager will "[f]orecast sales objectives and 
ensure they are fulfilled by the business development team" and work with "sales representatives," 
but the Petitioner did not employ any business development team or sales representatives at the time 
of fi Ii ng. 2 Therefore, it appears that the business development manager was personally responsible for 
performing business development and sales tasks, rather than delegating them to subordinates. 
The business plan indicates that "[t]he Systems Administrator is an outsourced role tol O I" but the 
record does not show any connection between I I and the individual named as the systems 
administrator. The Petitioner sent payments to the systems administrator in Ukraine by wire transfer, 
and also made separate payments tol I The invoices from I I some of which predate the 
August 2018 service agreement with the systems administrator, show charges for "Kitchen 
Amenities," "Telecom Services," and "a fully furnished, staffed and equipped office space," consistent 
with I l's role as a provider of on-demand and virtual office space. There is no evidence that 
I !performs any operational functions on behalf of the Petitioner ( or that the business development 
manager oversees those functions throug~ 1-
The regulations do not preclude the exercise of executive authority through contractors, but the record 
does not establish that the contractors shown in the record require or warrant a degree of executive 
oversight that would occupy a significant proportion of the Beneficiary's time, such that the 
Beneficiary's authority is primarily that of an executive. 
When examining the claimed executive capacity of a beneficiary, USCIS reviews the totality of the 
evidence, including descriptions of a beneficiary's duties and his or her subordinate employees, the 
nature of a petitioner's business, the employment and remuneration of employees, and any other 
evidence contributing to a complete understanding of a beneficiary's actual role in a business. The 
evidence must substantiate that the duties of a beneficiary and his or her subordinates correspond to 
2 The business plan did not project any future hiring of sales staff, implying that first-line sales duties are a permanent part 
of this nominally managerial position. 
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their placement in an organization's structural hierarchy and artificial tiers of subordinate employees 
and inflated job titles are not probative and will not establish that an organization is sufficiently 
complex to support an executive position. 
The Petitioner has not established the existence of a management structure subordinate to the 
Beneficiary, either through employees or through control of the work of contractors, at the time of 
filing. Therefore, the Petitioner has not shown that the Beneficiary primarily directs the management 
of the company. 
C. Financial Status 
An extension petition involving a new office must include evidence of the financial status of the United 
States operation. See 8 C.F.R. § 214.2(1)(14)(ii)(E). 
In the second denial notice, the Director noted that the Petitioner had resubmitted copies of documents 
already in the record, which did not overcome the Director's conclusions regarding the Petitioner's 
financial status. The Petitioner does not address this conclusion on appeal, and thereby abandons this 
issue.3 
111. CONCLUSION 
The Petitioner has not established that the new office required, or could support, an executive position 
at the end of the one-year new office period. The appeal wi 11 be dismissed for the above stated reasons. 
ORDER: The appeal is dismissed. 
3 See Matter of R-A-M-, 25 l&N Dec. 657, 658 n.2 {BIA 2012) (stating that when a filing party fails to appeal an issue 
addressed in an adverse decision, that issue is waived). See also Sepulveda v. U.S. Att'y Gen., 401 F.3d 1226, 1228 n. 2 
(11th Cir. 2005), citing United States v. Cunningham, 161 F.3d 1343, 1344 (11th Cir. 1998); Hristov v. Roark, No. 09-
CV-27312011, 2011 WL 4711885 at *1, *9 (E.D.N.Y. Sept. 30, 2011) (plaintiff's claims were abandoned as he failed to 
raise them on appeal to the AAO). 
Notwithstanding the Petitioner's abandonment of the broader financial issues, we will briefly note significant discrepancies 
in the financial documents. The Petitioner's business plan indicates that the company took in $12,125 per month in gross 
revenue in June, July, and August 2018, with $35,864 in cash on hand as of August 31st. But bank statements in the record 
show only two deposits, totaling $4565, during those three months, ending with a balance below $16,000. The record, 
therefore, does not corroborate the figures claimed in the business plan. 
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