dismissed L-1A Case: Sports Management

U.S. Citizenship 
and Immigration 
Services 
MATTER OF S-S- LLC 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: MAR. 6, 2018 
MOTION ON ADMINISTRATIVE APPEALS OFFICE DECISION 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a sports management, marketing, and communications company, seeks to amend 1 and 
extend the Beneficiary's temporary employment as its chief executive officer (CEO) under the L-1A 
nonimmigrant classification for intracompany transferees. See Immigration and Nationality Act (the 
Act) section 101(a)(15)(L), 8 U.S.C. § 1101(a)(15)(L). The L-1A 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 Beneficiary would be employed in a managerial or executive capacity 
under the extended petition. The Petitioner appealed the Director's decision and we dismissed the 
appeal. We have since denied two subsequent combined motions to reopen and reconsider. 
The matter is now before us again on a third combined motion to reopen and reconsider. The 
Petitioner asserts that we have consistently placed undue emphasis on a single factor in determining 
that the Beneficiary would not primarily perform managerial or executive duties, and failed to 
consider the Petitioner's reasonable needs as required by section 101(a)(44)(C) of the Act. The 
Petitioner cites to case law and asserts that the Beneficiary passes a "four factor test of 'primary' 
engagement in managerial and or executive duties" set forth in Nat'! Hand Tool Corp. v. Pasquarell, 
889 F.2d 1472 (5th Cir. 1989). 
Upon review, we will deny the combined motion. 
I. MOTION REQUIREMENTS 
To merit reopening or reconsideration, a petitioner must meet the formal filing requirements (such 
as, for instance, submission of a properly completed Form I-290B, Notice of Appeal or Motion, with 
the correct fee), and show proper cause for granting the motion. 8 C.F.R. § 103.5(a)(l). 
1 The Petitioner previously filed three L-1 B classification petitions on behalf of the Beneficiary which authorized him to 
work in a specialized knowledge capacity as its "soccer promotions coordinator" for a total period of approximately 4 
years and I 0 months, from December 20 I 0 until October 2015. 
Matter of S-S- LLC 
A motion to reopen must state new facts and be supported by documentary evidence. 8 C.F.R. 
§ 103.5(a)(2). A motion to reconsider must establish that we based our decision on an incorrect 
application of law or policy and that the decision was incorrect based on the evidence in the record 
of proceedings at the time of the decision. A petitioner must support its motion to reconsider with a 
pertinent precedent or adopted decision, statutory or regulatory provision, or statement of U.S. 
Citizenship and Immigration Services (USCIS) or Department of Homeland Security policy. 
8 C.F.R. § 103.5(a)(3). We may grant a motion that satisfies these requirements and demonstrates 
eligibility for the requested immigration benefit. 
II. ANALYSIS 
The primary issue in this matter is whether the Petitioner has submitted new facts, evidence, or 
arguments to establish that the Beneficiary would be employed in a managerial or executive 
capacity, as defined at section 10l(a)(44) of the Act. The Petitioner must establish that all eligibility 
requirements for the immigration benefit have been satisfied from the time of the filing (in this case, 
October 29, 20 15) and continuing through adjudication. 8 C.F .R. § 103 .2(b )(I). 
For the reasons discussed below, we will deny the motion to reopen and the motion to reconsider. 
While the current motion includes newly submitted legal arguments and citations to case law in 
support of the Petitioner's claim that we incorrectly applied the law and USCIS policy to the facts 
presented, the Petitioner has not shown proper cause for reopening or reconsideration. 
A. Previous AAO Decisions 
In dismissing the Petitioner's appeal, we determined that the Petitioner did not sufficiently define or 
support the Beneficiary's claimed managerial or executive duties in the record, and that the evidence 
did not establish that his duties as CEO would be significantly different from those he has been 
performing in the non-managerial position of "soccer promotions coordinator" since 2010. We also 
found that the Petitioner did not demonstrate that the Beneficiary would delegate most of the 
company's day-to-day operational tasks to employees and contractors, as the company had, at most, 
one other employee and it provided insufficient evidence to establish that it regularly engaged 
independent contractors. 2 
In addition, we determined that the evidence and arguments submitted in support of the Petitioner's 
two subsequent combined motions to reopen and reconsider focused on establishing the 
Beneficiary's senior role within the company, his level of autonomy, and his critical role in the 
company's ongoing operations. We did not question that the Beneficiary is the senior employee in 
the company or that he exercises a level of autonomy consistent with a managerial or executive 
2 In reaching this determination, we noted that the Petitioner had stated on the Form 1-129 that the Beneficiary's duties 
will be to "promote exchange of soccer activities between the United States and Brazil; introduce United States soccer 
players to Brazilian methods by meeting with Brazilian players in the United States and arranging soccer tours to 
Brazil." We found that the Petitioner had not established that it had staff to arrange for coaches, referees, equipment, and 
facilities for its soccer camps and team visits. 
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Matter of S-S- LLC 
employee. However, we determined in each case that the Petitioner's motions did not adequately 
address the deficiencies in the Beneficiary's job description or the lack of sufficient evidence 
showing how he delegates most of the non-managerial and non-executive duties required for the 
day-to-day operation of the business so that he can focus primarily on managerial or executive tasks. 
B. Motion to Reopen 
Although the Petitioner indicated that it was filing a combined motion, the instant motion to reopen 
does not contain new facts supported by documentary evidence, as required by 8 C.P.R. § 103.5(a)(2). 
The Petitioner submits six exhibits labeled "A" through "F." These exhibits include: copies of prior 
USCIS denial letters; an October 2015 letter from the Petitioner and a "responsibility chart" that were 
both previously submitted and addressed in prior decisions; and copies of three U.S. district and circuit 
court decisions cited in the Petitioner's brief. 
We interpret "new facts" to mean facts that are relevant to the issue(s) raised on motion and that 
have not been previously submitted in the proceeding, which includes the original petition. 
Reasserting previously stated facts or resubmitting previously provided evidence does not constitute 
"new facts." We will address the Petitioner's citations to case law below in our discussion of the 
motion to reconsider. 
In addition, although the Petitioner submits a brief in support of the motion, it has not introduced new 
facts in its brief. As the Petitioner has not submitted new facts supported by documentary evidence, it 
has not shown proper cause to reopen the proceeding. 
C. Motion to Reconsider 
In support of its motion to reconsider, the Petitioner asserts that we incorrectly applied the regulation 
at 8 C.P.R. § 214.2(1)(3)(ii), which requires that a petitioning employer provide only "a detailed 
description of the services to be performed" in a managerial or executive capacity. Specifically, the 
Petitioner maintains that we evaluated four factors in determining whether the Beneficiary would be 
employed in a managerial or executive capacity, including the Beneficiary's level of autonomy, 
whether he holds a senior position, the Petitioner's description of the Beneficiary's duties, and the 
staffing of the petitioning company, but "did not provide the source" for those requirements or 
specifically clarify those requirements. The Petitioner also maintains that our prior decisions 
demonstrate "a baseless fixation on the size of the Beneficiary's business" and a "singular amount of 
focus placed on the percentage oftime the Beneficiary spends on each type of job duty." 
A review of our prior decisions demonstrates that we have appropriately considered the totality of the 
evidence in determining whether the Beneficiary would be employed in a managerial or executive 
capacity and have not placed undue emphasis on any one factor. While it is true that the evidentiary 
requirements set forth in the regulations are minimal and entail only the submission a detailed 
description of the Beneficiary's job duties, we cannot review a job description, even a sufficiently 
detailed one, without proper context or relevant supporting evidence, as the Petitioner seems to assert 
we should have done in this case. 
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Matter ofS-S- LLC 
Rather, beyond the required description of the job duties, USCIS reviews the totality of the evidence 
when examining the claimed managerial or executive capacity of a beneficiary, including 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 evidence contributing to understanding a beneficiary's actual duties 
and role in a business. See Matter ofZ-A-, Inc., Adopted Decision 2016-02 (AAO Apr. 14, 2016). 
The Petitioner also argues that we have consistently misinterpreted the meaning of the word 
"primarily" in analyzing whether the Beneficiary primarily performs managerial or executive duties. 
The Petitioner correctly notes that the statute does not define the word "primarily" as it used in the 
definitions of managerial and executive capacity. The Petitioner maintains that the standard legal 
dictionary definition of "primarily" should apply and asserts that "one's primary duties, as opposed 
to collateral duties, would be those that are of greatest importance - of first, principal, chief, or 
leading importance - of the position within the organization." In other words, it appears that the 
Petitioner is claiming that those duties that are most important to the organization are indicative of 
the Beneficiary's "primary" duties, rather than those duties which require the greatest portion of his 
time. The Petitioner favors a qualitative approach to determining which duties constitute the 
Beneficiary's "primary" duties as opposed to a quantitative approach. 
The Petitioner then goes on to cite to IKEA US, Inc. v. US Dept. of Justice, 48 F. Supp. 2d 22 
(D.D.C. 1999), and Republic qfTranskei v. INS, 923 F.2d 175, 178 (D.C. Cir. 1991) in support of its 
claim. However, both of these cases support a quantitative approach to determining whether the 
Petitioner has met its burden to show that a beneficiary performs "primarily" managerial or 
executive duties. Specifically, these cases support our finding that it is a petitioner's burden to 
establish how much time a given beneficiary spends on managerial or executive duties, and how 
much he or she spends on non-managerial and non-executive duties. In fact, both cases support a 
conclusion that petitioners should express the amount of time a beneficiary devotes to managerial 
versus non-managerial duties as a numerical percentage or proportion. Such percentages are 
particularly critical where, as here, the evidence of record indicates that the beneficiary performs a 
combination of both qualifying managerial or executive tasks and various non-managerial or non­
executive tasks. 
We do not doubt that the Petitioner considers the Beneficiary's higher level duties as his "primary" 
or most important duties. We have acknowledged its claim that he is the "face" of the organization 
and that his reputation and connections in the sport of soccer have likely contributed to the 
company's success. However, these facts do not overcome our previous finding that the record as a 
whole does not show that the Beneficiary would be spending the primary part of his time performing 
duties that fall within the statutory definitions of managerial or executive capacity. 
The record shows that the Beneficiary does in fact perform a number of "day-to-day responsibilities" 
that reasonably prevented us from concluding that his actual duties would be primarily managerial or 
executive in nature. For example, the Beneficiary himself was responsible for marketing the 
company's services and would more likely than not continue to perform many of the same non­
managerial duties he performed in his previous L-1 B position as soccer promotions coordinator, as 
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Matter of S-S- LLC 
the Petitioner has not claimed that it has hired an employee or retained a contractor to take over his 
former responsibilities. The Petitioner once again does not directly address this finding on motion. 
Rather, the Petitioner acknowledges that the Beneficiary performs 'job duties of all kinds" and 
emphasizes that his most important duties are managerial or executive. 
The Petitioner goes on to emphasize that the company's small size and "atypical organizational 
structure" actually support its claim that the Beneficiary must be primarily a manager or executive. 
Specifically, the Petitioner states that "given the already documented business success and growth of 
[the company], any reviewer of this case must acknowledge the unavoidable conclusion that 
someone is engaging in primarily in the executive and managerial functions of the business," and 
that "there is no evidence anywhere in the record pointing to anyone other than the Beneficiary 
fulfilling these functions." 
The Petitioner's argument presumes that every successful business must employ at least one person 
who would qualify as a manager or executive under the statutory definitions of these terms. 
However, the fact that the Beneficiary will manage or direct the business as the senior member of its 
two-person staff does not necessarily establish his eligibility for classification as an intracompany 
transferee in a managerial or executive capacity within the meaning of section 101(a)(44) ofthe Act. 
We do not dispute that all companies, regardless of their size, require leaders or individuals who 
plan, oversee, and coordinate activities; however, the petitioner must establish with specificity that 
the beneficiary's duties within the context of its business require him to spend his time primarily on 
these duties and not on routine operational or administrative tasks. Performing non-qualifying tasks 
necessary to produce a product or service will not automatically disqualify a beneficiary as long as 
those tasks do not require a significant portion of the beneficiary's time. However, whether a 
beneficiary is a manager turns in part on whether the petitioner has sustained its burden of proving 
that their duties are "primarily" managerial. See Matter of Z-A-, Inc., Adopted Decision 2016-02 
(AAO Apr. 14, 2016). 
Finally, the Petitioner argues that the Beneficiary passes a "four factor test of 'primary' engagement 
in managerial and or executive duties" set forth in Nat'! Hand Tool, 889 F.2d 1472. Specifically, the 
Petitioner maintains that National Hand Tool sets forth a four-factor test which considers: (1) what 
types of tasks a beneficiary performs; (2) how much time a beneficiary spends on each type of task; 
(3) whether subordinate employees assist the beneficiary in completing tasks; and ( 4) whether a 
beneficiary directs others in completing tasks. The Petitioner claims that the application of this 
"test" to the facts of this case must result in a conclusion that the Beneficiary performs primarily 
managerial and executive tasks. 
We disagree. First, there are no references to a four-part "test" in National Hand Tool. However, 
the decision does reflect that the court considered the beneficiary's job duties to determine the nature 
of his tasks, the relative amount of time spent on each task, the presence of other employees who 
might assist with those duties, and the extent of the beneficiary's supervisory authority. We did in 
fact consider these and other factors, such as the nature of the Petitioner's business, in reaching our 
conclusion that the Petitioner had not met its burden to show how the Beneficiary would perform 
primarily managerial or executive tasks. The Petitioner's claim that the Beneficiary delegates the 
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Matter of S-S- LLC 
majority of the company's non-managerial and non-executive functions to the company's sole other 
employee, contractors, and staff of the foreign entity remains unsupported in the record. 
The Petitioner has not established that our prior decision was incorrect at the time of that decision. 
Therefore, the Petitioner has not shown proper cause for reconsideration. 
III. CONCLUSION 
For the reasons discussed, the Petitioner has not shown proper cause to reopen the proceeding or 
proper cause for reconsideration. 
ORDER: The motion to reopen is denied. 
FURTHER ORDER: The motion to reconsider is denied. 
Cite as Matter ofS-S- LLC, ID# 1092522 (AAO Mar. 6, 2018)