dismissed L-1A Case: Software Services

U.S. Citizenship 
and Immigration 
Services 
MATTER OF R-T-, INC. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: APR. 17,2018 
APPEAL OF CALIFORNIA SERVICE CENTER DECISION 
PETITION: FORM 1-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, an entity that intends to provide sotlware services to businesses, seeks to temporarily 
employ the Beneficiary as the chief executive officer of its new ofticc 1 under the L-IA 
nonimmigrant classification for intracompany transferees. See Immigration and Nationality Act (the 
Act) section 101(a)(15)(L), 8 U.S.C. § 1101(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 Petitioner did 
not establish, as required, that the new office would support the Beneficiary in a managerial or 
executive position within one year a tier approval of the petition. 
On appeal, the Petitioner disputes the denial contending that it would employ the Beneficiary in an 
executive position. 
Upon de novo review, we will dismiss the appeal. 
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 tor 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 continue rendering his or her services to the same 
employer or a subsidiary or affiliate thereof in a managerial or executive capacity. I d. 
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 petiti~mer 
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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(1)(1)(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. 
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Maller of R-T-. Inc. 
secured sufficient physical premises to house its operat ion and disclose the proposed nature and 
scope of the entity, its organizational structure,. its financ ial goals, and the size of the U.S. 
investment. See generally , S C.F.R. § 214.2(1)(3)(v). 
II. U.S. EMPLOYMENT IN AN EXECU TIVE CAPACITY 
The prim ary issue to be addressed in this discu ssion is wheth er the Petitioner provided sutlicient 
evidence to establ ish that it would support the Beneficiary in an executive capacity within one year 
of the petition's approva l. The Petitioner does not claim that it will employ the Benefic iary in a 
managerial capacity. 
" Executi ve capacity" means an ass ignment within an organization in which the emp loyee primarily 
directs the management of the organ ization or a major component or function of the orga nizat ion; 
establishes the goals and policies of the organization, component, or function; exercises wide 
latitude in discre tionary decision-making; and receives only general supervision or direction from 
higher-level execu tives, the board of directors , or stockho lders of the organization. Section 
IOI(a)(44)(B) of the Act. 
A. New Office Requirements 
In the case of a new office petitiOn, we review the petitiOner 's business and hiring plans and 
evidence that the business will grow sufficientl y to suppo rt a beneficiary in the intended managerial 
or executive capac ity. A petitioner has the burden to estab lish that it would realistic ally develop to 
the point where it would require the beneficiary to perform duties that are primarily managerial or 
executive in nature within one yea r of the petition's approval. Accordingly , we cons ider the totalit y 
of the evidence in analyzing whether the proposed manageria l or execut ive position is plausible 
based on a petitioner's antic ipated sta fting level s and stage of development within a one -yea r period. 
See 8 C.F.R . § 214.2(1)(3)(v)(C). 
In the present matter, the Petitioner provided an initial cove r letter, sta ting that it intends to ::leve rage 
the technic al expe rtise" and " full-11edged soft·ware engineering team " of its Indian parent company 
in order to offe r software development services to busines ses of vary ing sizes and phases of 
development. The Petition er stated that the Beneficiary will initially foc us on deve lop ing the 
business and hiring a sales exec utive, a product generalist, and an office assistant during the 
Petitioner's first year of operation. 
The Petitioner also provided a business plan in which it claimed that the Beneficiary is being advised 
by "entrepreneurs in the and alumni from the . Un iversity, where 
he obtained his graduate degree. The Petition er also stated that it "plans to rely on word[- ]otT­
]mouth and referrals" to advertise its business and claimed that the Beneficiary "has received 
positive response" after reaching out to "incub ators and startup acce lerators," whom the .Petitioner 
would target as its client base. The business plan includes general projections for revenue and 
expenses over a three- year period, foreca sting reve nues of $1 million and operating expenses of 
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Il.-fall er of R-T-. Inc. 
$900,000 during its tirst year or operation. The Petitioner did not discuss a pricing schedule for the 
various services it plans to offer or indicate how much of each service it expects to sell within its 
first year of operations to explain how it came up with the revenue projection. Further, although the 
Petitioner stated that the forecast for expenses would include employee salaries, deve lopment costs 
in India, the office lease, equipment rentals, and other corporate costs, it did not otherwise itemize its 
projected costs. Further, the Petitioner indicated that it would receive a $200,000 investment and a 
capital infusion of $50,000 resulting in $250,000 of cash in the bank. However, the Petitioner's 
August 20 I 7 bank statement shows only $18,600 in its business account around the date this petition 
was liled. 
The business plan also included an organizational chart depicting the Petitioner's projected starting 
hierarchy. The chart shows the Beneficiary at the top of a hierarchy that consisted of three in-house 
subordinate s - a sales executive, a product generalist, and an oftice assistant- and an undisclosed 
number of product managers and software engineers based at the Petitioner's Indian parent entity. 
In a request for evidence (RFE) the Director asked the Petitioner to explain how it plans to support 
the Beneficiary in an executive position within one year of approval o f the petition, instructing the 
Petitioner to provide a timetable lor each proposed action during its initial year and additional 
information about its proposed staffing. The Director also instructed the Petitioner to provide proof 
of the loreign entity's capital contributions, the size of such contributions, and evidence of the 
foreign entity's financial ability to pay the Beneficiary and commence doing business in the United 
States. 
In response, the Petitioner provided a statement claiming that the Beneficiary will foc us on finding 
new clients, engaging in contract negotiations, and partnering with U.S. businesses in an etTort to 
"get a strong foothold in the U.S. market." The Petitioner explained that the Beneficiary would 
target his existing contacts at the Graduate School of Business as a means of acquiring a 
client base; it did not, however, specify any contacts or provide supporting evidence to establish a 
realistic expectation for acquiring a client base in this manner. The Petitioner also offered additional 
evidence o ~· the foreign entity's f'inancial status, but did not provide evidence that the foreign entity 
actually made any monetary contributions towards the startup of the U.S. operation. 
In addition, the Petitioner provided job duty descriptions and projected salaries for each of its three 
projected employees but did not provide a specific hiring timeline for its first year of operations in 
support of its claim that it would meet the projected staffing level. The projected salaries indicate 
that the product generalist's annual compensation would be $120,000, which exceeds the 
Beneficiary 's proffered vvage of $96,000. The Petitioner did not explain why one of the 
Beneficiary's subordinates would receive a higher salary than the Beneficiary. The Petitioner also 
did not provide a specific timetable for its expected activities during the first year, including 
information regarding when it expected to acquire its first business client. Without this information, 
it is unclear hovv the Petitioner arrived at its $1 million revenue projection and whether that 
projection was realistic based on the number of projected clients and the prices of the services being 
sold. 
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Mauer of R-T-. Inc. 
The Director acknowledged the Petitioner's response to the RFE, but found that an approval of the 
petition was not warranted because the Petitioner did not adequately explain how it would support 
the Beneficiary in a managerial or executive position within one year of approval of the petition. 
On appeal, the Petitioner challenges the Director's conclusion pointing to previously submitted 
documents- including employee job duties, the foreign entity's financial status, and evidence of an 
$18,000-fund transfer to cover the Petitioner's initial start-up costs- as evidence of the Petitioner's 
projected ability to support the Beneficiary in an executive position within one year of the petition's 
approval. We disagree and lind that the Petitioner did not provide sufficient evidence to support its 
claims: 
First we note that despite claiming that the foreign entity would make an investment of $200,000 
and contribute a capital inlttsion of $50,000, the Petitioner's most recent bank statement indicates 
that it had less than $20,000 in its bank account at the time of filing. The Petitioner must establish 
that all eligibility requirements for the immigration benefit have been satisfied from the time of the 
filing and continuing through adjudication. 8 C.F.R. § 103.2(b)(l). As such, any projections of 
future monetary contributions by the foreign entity are not sufficient to establish that at the time of 
filing the Petitioner was adequately funded and had the resources to become operational. While the 
Petitioner claims that the $18,000 it had in its bank account at the time of filing was sufficient to 
cover its "initial expenditures," we have no way of verifying this claim, as the Petitioner did not 
adequately itemize its expenses or provide an approximate cost for each expense. 
Further, despite being instructed to provide specific timelines for each action within the initial 
operating year, the Petitioner did not specify when it plans to fill the positions that are part of its 
first-year hiring plan, nor did it explain how it would compensate these employees, given that the 
record does not show that the Petitioner had any impending business transactions through which it 
could start generating revenue upon the petition's approval. 
In light of the above, we find that the Petitioner has not provided an adequate business plan or 
evidence to show that its operation was adequately funded at the time of tiling such that it would be 
able to commence operations and progress to a stage of development that would support the 
Beneficiary in a primarily executive position. 
B. Duties 
We also reviewed the job descriptions of the Beneficiary and his projected subordinates and we lind 
the duty descriptions to be insufficient to establish that the Beneficiary would perform primarily 
executive duties within one year of the petition's approval. 
Although the Petitioner provided a U.S. job description for the Beneficiary, it did not expressly state 
whether the job description was applicable immediately upon the approval of the petition, or whether 
the Beneficiary would carry out the listed job duties during the Petitioner's second year of operation, 
once it moves beyond the "new office" phase. This distinction is critical because a beneficiary may 
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Mauer ofR-T-. Inc. 
be required to perform numerous operational and administrative tasks to get a new business off the 
ground; a beneliciary may even devote the primary portion of his or her time to organization's non­
qualifying functions at the beginning stages of its operation. However, after a business has been 
operational for longer than one year, we no longer consider it a "new office" and the beneficiary of 
such a business would no longer be able to primarily perform the operational and administrative 
tasks and still meet the eligibility criteria. An employee who "primarily" performs the tasks 
necessary to produce a product or to provide services is not considered to be "primarily" employed 
in a managerial or executive capacity. See. e.g., sections IOI(a)(44)(A) and (B) of the Act (requiring 
that one "primarily" perform the enumerated managerial or executive duties); Malter of" Church 
Scientology In! '1, 19 l&N Dec. 593, 604 (Comm'r 1988). 
In the present matter, the Petitioner provided a single job description without expressly stating when 
the Beneficiary would start performing the job duties listed therein. Further, we tind that the job 
description docs not establish that the Bcneliciary would primarily allocate his time to executive job 
duties within one year of the petition's approval. Namely, the Petitioner stated that 45% of the 
Beneficiary's time would be spent performing business development tasks, including negotiating 
business deals with prospective clients "to acquire new business," overseeing the Petitioner's 
marketing, and "[r]eviewing and improving the lead" to acquire clients. Although, the Petitioner 
indicated that it would hire a sales executive within its first year of operation, it did not assign any 
marketing tasks to the sales executive or to any of the other prospective employees; it is therefore 
unclear who, if not the Beneficiary, would actually carry out those non-executive tasks. Further, 
given that the 13eneliciary would still focus on acquiring new business, it does not appear that the 
hiring of a single sales executive would be sufficient to relieve the Beneficiary from having to 
continue carrying out the sales function to some degree. 
The Petitioner also stated that the Beneficiary would be responsible for managing business 
operations, which would require him to allocate 15% of his time to recruiting, training, and tiring 
employees. While we acknowledge that the Beneficiary would have discretionary authority over the 
organization's personnel, the Petitioner did not establish that carrying out its human resource 
functions, such as employee recruitment, are within the scope of an executive employee. Likewise, 
we lind that obtaining licenses and ensuring that the Petitioner meets various regulatory 
requirements is an administrative task. Despite allocating only 5% of the Beneficiary's time to this 
non-executive !unction in the course of meeting his financial and administrative management 
responsibility, we lind that the Beneficiary's total time spent performing non-executive job duties 
would exceed the time that would be spent performing tasks at an executive level. 
While no beneficiary is required to allocate I 00% of his or her time to executive-level tasks, the 
petitioner must establish that the non-qualifying tasks the beneficiary would perform would be only 
incidental to the proposed position within one year. An employee who "primarily" performs the 
tasks necessary to produce a product or to provide services is not considered to be "primarily" 
employed in a managerial or executive capacity. See. e.g., sections 101(a)(44)(A) and (B) of the Act 
(requiring that one "primarily" perform the enumerated managerial or executive duties); Jvfal/er of 
Church Scientology In! '1, 19 I&N Dec. 593, 604 (Comm'r 1988). 
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Jl.4aller of R-T-. Inc. 
In light of the above, we find that the Petitioner has not provided sufficient evidence to establish that 
the Beneficiary would perform primarily executive job duties within one year of the petition's 
approval. 
Ill. EMPLOYM ENT ABROAD 
Finally, while not addressed in the Director's decision, we find that the Petitioner has not established 
that the Beneticiary has at least one continuous year of full-time employment abroad \Vith a 
qualifying organization within the three years preceding the filing of the petition. 8 C.F.R. 
§ 214.2(1)(3)(iii). 
The dctinition of the term "intracompany transferee" refers to a beneficiary "who within the three 
years preceding the time of his or her applicati on for admission into the United States has been 
employed abroad continuously for one year" by a qualifying entity. 8 C.F.R. § 214.2(1)(1 )(ii)(A) 
(emphasis added). It further states that "[pjeriods spent in the United States in lawful status for a 
branch of the same employer or a parem. qffiliate. or subsidiary thereofan d brief trips to the United 
States for business or· pleasure shall not be interruptive of the one year of continuous employment 
but such periods shall not be counted toward fulfillment of that requirement." !d. 
When the definition of "intracompa ny transferee" is construed together with the regulation at 
8 C.F.R. § 214.2(1)(3) and section 10l(a)(15)(L) of the Act, the statutory phrase "preceding the time 
of his application for admission into the United States" refers to a beneficiary whose admission or 
admissions were "for a branch of the same employer or a parent, affiliate, or subsidiary t hereof' or 
tor "brief trips to the United States tor business or pleasure." 
The Petitioner t~led this petition on August 9, 2017. The record shows that the Beneficiary was last 
employed abroad by a qualifying entity from December 2009 until August 2014. In order for him to 
meet the foreign employment requirement, the Petitioner would need to show that the Beneficiary 
has been admitted to work lor a qualifying entity in the United States during the last three years. If 
that were the case, we could consider foreign employment that occurred prior to the t hree year 
period immedi ately preceding the time of filing. 
The Petitioner provided an ICE form I-20, Certifica te of Eligibility for Nonimmigrant Student 
Status, which shows that the B eneficiary entered the United States in F -I status to pursue a master's 
degree as part of a two-year graduate program that commenced in September 2014. The Fonn I-20 
further shows that the Beneficiary remained in the United States for post-graduate employment at 
which started in September 2016, less than one year prior to the date 
this petition was tiled. The Petitioner also provided a photocopy of the Beneficiary's most recent 
Form 1-94, Arrival/Departure Record, which shows that the Beneficiary last entered the United 
States as an F -1 student on 2017, just three days prior to the date the instant petition was 
filed. 
Mauer of R-7~. Inc. 
The Beneficiary in this case had been in the United. States for well over two years at the time the 
petition was tiled and cannot qualify for L-1 status if we consider his employment during the three 
years preceding the tiling of the instant petition. As noted, only time spent in the United States 
working for a branch, subsidiary, affiliate, or parent of the foreign employer will be deemed non­
interruptive. Any period of authorized stay in nonimmigrant status that is not work authorized and 
sponsored by a qualifying organization is interruptive if the period of stay exceeds two years in 
length. Here, the Beneficiary's stay in F -I status was interruptive and he cannot meet the one year 
of employment abroad requirement based on his employment with the foreign entity between 2009 
and 2014. 
For the reasons stated, the Petitioner has not established that the Beneficiary had one year of 
employment with a qualifying entity abroad during the relevant three-year time period. 
IV. CONCLUSION 
For the reasons discussed above, we find that the Petitioner has not established that: (I) the 
Beneficiary will be employed in an executive capacity within one year of the petition's approval; 
and (2) the Beneficiary has the requisite one year of employment abroad during the three years prior 
to the tiling of the instant petition. 
ORDER: The appeal is dismissed. 
Cite as /vlatter o(R-T-. Inc., lD# 1157244 (AAO Apr. 17, 2018) 
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