dismissed L-1A Case: Sports Management And Marketing

U.S. Citizenship 
and Immigration 
Services 
In Re: 16158577 
Motion on Administrative Appeals Office Decision 
Form 1-129, Petition for L-lA Manager or Executive 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: AUG. 6, 2021 
The Petitioner, a sports management and marketing firm, seeks to temporarily employ the Beneficiary 
as a marketing director of its new office 1 under the L-lA non immigrant classification for intracompany 
transferees. 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: (1) the new office would support the Beneficiary in a managerial or executive position 
within one year of the petition's approval; and (2) the Beneficiary was employed abroad in a 
managerial or executive capacity.2 We dismissed a subsequent appeal, concluding that the record did 
not establish that: (1) the Petitioner had a qualifying relationship with the Beneficiary's foreign 
employer, and (2) the Beneficiary was employed abroad in an executive capacity. We reserved the 
issue of whether the new office would support the Beneficiary in a managerial or executive position 
within one year of the petition's approval. The matter is now before us on a combined motion to 
reopen and reconsider. 
In these proceedings, it is the Petitioner's burden to establish eligibility for the requested benefit. 
Section 291 of the Act, 8 U.S.C. § 1361. Upon review, we will dismiss the motion to reopen and 
reconsider. 
1 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. 
2 To establish eligibility for the L-lA nonimmigrant visa classification in a petition involving a new office, 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 continue rendering their services to the same 
employer or a subsidiary or affiliate thereof in a managerial or executive capacity. Id. 
I. MOTION REQUIREMENTS 
A petitioner must meet the formal filing requirements of a motion and show proper cause for granting 
the motion. 8 C.F.R. § 103.5(a)(1). 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 our decision was based 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. 8 C.F.R. § 103.5(a)(3). A motion to reconsider must be supported by 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. 
II. ANALYSIS 
A. Motion to Reopen 
1. Qualifying Relationship 
We determined in our appeal decision that the Petitioner did not establish that it has a qualifying 
relationship with the Beneficiary's foreign employer.3 The record indicates that the foreign employer, 
I I, is 90% owned by the Beneficiary and 10% owned by the 
Beneficiary's spouse. The Petitioner indicated on the Form 1-129 L classification supplement that the 
Beneficiary owns 50% of the Petitioner's membership interests. It provided a partnership agreement 
and an operating agreement as evidence regarding ownership and control. On motion, it asserts that 
the partnership agreement never became effective and that a draft of the partnership agreement was 
inadvertently submitted. Instead, it asserts that its operating agreement reflects its ownership and 
control. 
The Petitioner's operating agreement, dated October 30, 2017, lists three individuals as members, one 
of whom is the Beneficiary. It shows the amount of capital initially contributed by each individual, 
with the Beneficiary and member B each contributing $15,000, and member C contributing $151,000. 
According to the operating agreement, the Beneficiary's percentage membership interest in the 
Petitioner corresponds with his capital contribution, which is 8.3%. The operating agreement states 
that profits and losses will be allocated to the members in proportion to their capital contributions, and 
voting is based on the same proportion. Thus, the operating agreement vests both majority ownership 
and control in member C. Additionally, the operating agreement vests the management of the 
Petitioner, including general management and leadership, in the manager. The manager is member B. 
Therefore, the operating agreement does not establish that the Petitioner is majority owned and 
control led by the Beneficiary. 
On motion, the Petitioner submits minutes of a special meeting of the Petitioner dated October 15, 
2020; an amendment to the Petitioner's operating agreement dated October 16, 2020; and its 2019 IRS 
3 To establish a "qualifying relationship," 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 section 101(a)(15)(L) of the Act; see also 8 C.F.R. § 214.2(1)(1)(ii) (providing definitions 
of the terms "parent," "branch," "subsidiary," and "affiliate"). 
2 
Form 1065, U.S. Return of Partnership Income, signed by the Petitioner on October 30, 2020. The 
Petitioner asserts that after we dismissed the appeal, its "members had a meeting on October 15, 2020 
and concluded that the operating agreement was not reflecting the real structure of the business which 
caused some confusion about [the Beneficiary's] role in the US subsidiary." It states that the 
amendment to the operating agreement establishes its qualifying relationship with the Beneficiary's 
foreign employer. 
The minutes of the special meeting detail several proposed changes to the operating agreement, which 
were incorporated into the amendment to the Petitioner's operating agreement. The changes include 
the following revised membership interest percentages: 
Member 
Beneficiary 
Member B 
Member C 
Capital Contribution 
$15,000 
$15,000 
$151,000 
% Membership Interest 
50% 
40% 
10% 
On motion, the Petitioner states that despite his capital contribution amount, the Beneficiary has a 
"greater membership interest because of his knowledge, network, contacts and expertise in the sports 
management field" and that "without him, the Petitioner's business will be negatively impacted, or 
even non-existent." The Petitioner's 2019 federal tax return, signed by the Petitioner in October 2020, 
reflects that the Beneficiary owns a 50% share of the profit, loss, and capital of the Petitioner; that 
member B owns a 40% share; and that member Cowns a 10% share. 
The amendment to the Petitioner's operating agreement also changes how votes are cast and states 
that "[ e Jach Member shall be entitled to cast votes on any matter based upon the proportion of the 
Membership Interest in the Company" as described in the amendment. Further, the amendment 
changes how interests are valued, and states that a "Member's financial interest in the Company will 
be in proportion to their membership percentage plus any cash contributions." The operating 
agreement amendment also states that the manager will have management of the day-to-day 
administrative activities of the Petitioner, and that all matters outside of the day-to-day administrative 
activities will be decided by a majority vote of the Petitioner's members. The Petitioner asserts that 
based on these changes, the Beneficiary "has greater ownership and control of the Petitioner's 
company than the other members." 
Upon review, we conclude that the Petitioner has not established that it had a qualifying relationship 
with the Beneficiary's foreign employer on October 1, 2018, the date the petition was filed. On 
motion, the Petitioner has submitted documents reflecting a change in its ownership and control after 
the petition was filed, but it provides no new evidence to establish that it was majority owned and 
controlled by the Beneficiary in October 2018 when the petition was filed. 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)(1). Where significant changes 
are made to the initial request for approval, a petitioner must file a new petition rather than seek 
approval of a petition that is not supported by the facts in the record. 
3 
Further, we determined in our appeal decision that the Petitioner does not qualify as a branch, 
subsidiary, or affiliate of the foreign employer. On motion, the Petitioner asserts that it is a subsidiary 
of the foreign employer based on the ownership reflected in the amended operating agreement. 
Specifically, it asserts that it qualifies as a subsidiary under 8 C.F.R. § 214.2(1)(1)(ii)(K) because the 
Beneficiary owns 90% of the foreign employer and "directly owns half' of the Petitioner. However, 
the Petitioner's initial operating agreement shows that it is majority owned and controlled not by the 
foreign employer, but by member C. This fact pattern does not meet any of the four definitions of 
subsidiary given in the regulation.4 Thus, on motion, the Petitioner has not submitted new facts 
demonstrating that it and the Beneficiary's foreign employer had the requisite qualifying relationship 
in October 2018 when the petition was filed. The Petitioner has shown proper cause for us to reopen 
the proceeding on this issue. 
2. Employment Abroad in an Executive Capacity 
We determined in our appeal decision that the Petitioner has not established that the Beneficiary was 
engaged in primarily executive duties abroad as defined under section 101(a)(44)(B) of the Act. 5 The 
petitioner must show that the beneficiary performed 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 foreign 
employment meets all four elements set forth in the statutory definition, the petitioner must then prove 
that the beneficiary was primarily engaged in executive capacity duties, as opposed to ordinary 
operational activities alongside the organization's other employees. See Family Inc. v. USCIS, 469 
F.3d 1313, 1316 (9th Cir. 2006). 
In our appeal decision, we stated that the Petitioner did not document what proportion of the 
Beneficiary's duties abroad were executive functions and what proportion were non-qualifying, 
despite the Director's request for this information in her request for evidence (RFE). 6 In addition, we 
noted that rather than primarily focusing on executive functions, the Beneficiary relied on sales and 
marketing knowledge and expertise to perform operational tasks. Therefore, we indicated that were 
unable to determine whether the Beneficiary was primarily performing the duties of an executive 
4 Under 8 C.F.R. § 214.2(1)(1){ii)(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 indirectly, less than half of the entity, but in fact controls the entity. 
As stated in our appeal decision, the Petitioner and the foreign employer do not qualify as affiliates. When the petition 
was filed in October 2018, the foreign entity and the Petitioner were not "subsidiaries both of which are owned and 
controlled by the same parent or individual," nor were they "owned and controlled by the same group of individuals, each 
individual owning and controlling approximately the same share or proportion of each entity." 8 C.F.R. § 
214.2(1) (l){i i){L){l)-(2). 
5 "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. 
6 In the RFE. the Director specifically requested a letter detailing the Beneficiary's typical duties and the percentage of 
time spent on each. 
4 
during the requisite one year period abroad. See I KEA US, Inc. v. U.S. Dept. of Justice, 48 F. Supp. 
2d 22, 24 (D.D.C. 1999). 
We also noted that the descriptions of the Beneficiary's duties lack specific details and were limited 
to general responsibilities. The actual duties themselves will reveal the true nature of the employment. 
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). By statute, eligibility for classification as an intracompany transferee in an executive capacity 
requires that the duties of a position be "primarily" executive in nature. Section 101(A)(44)(B) of the 
Act. We also noted inconsistencies in the record regarding the Beneficiary's job title with the foreign 
employer, including general manager, director and manager, and marketing director. 
On motion, the Petitioner provides a breakdown of the Beneficiary's duties abroad, including 60% of 
his total hours devoted to "business executive" duties, and 40% of his total hours devoted to 
managerial responsibilities. It asserts that the Beneficiary performed primarily executive duties 
abroad. We note that the Director requested the breakdown of the Beneficiary's duties in the RFE. 
The Petitioner did not provide the requested duty description in its RFE response. In her denial 
decision, the Director stated that without a detailed list of the job duties showing "at what frequency 
the stated duties are performed," we cannot determine whether the position abroad is primarily 
executive. The Petitioner did not provide a detailed breakdown of the Beneficiary's duties on appeal. 
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, we will 
not accept evidence offered for the first time on motion. See Matter of Soriano, 19 l&N Dec. 764, 
766 (BIA 1988); see also Matter of Obaigbena, 19 l&N Dec. 533, 537 (BIA 1988). 
Additionally, the breakdown of the Beneficiary's duties provided on motion differs from the duties 
previously provided to the record. For example, on the petition, the Petitioner stated that the 
Beneficiary "designed courses and executive programs," but on motion, the Petitioner states that he 
supervised a department that created the courses. Further, the Beneficiary's previously listed 
responsibilities including "full powers to open bank accounts," "invite investors for specific projects," 
and "define the price of sale of company's shares" were removed from the job description provided 
on motion. On appeal or motion, a petitioner cannot offer a new position to a beneficiary, or materially 
change a position's title, its level of authority within the organizational hierarchy, or the associated 
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 Matter of Michelin 
Tire Corp., 17 I&N Dec. 248,249 (Reg'l Comm'r 1978). A petitioner may not make material changes 
to a petition in an effort to make a deficient petition conform to USCIS requirements. See Matter of 
lzummi, 22 I&N Dec. 169, 176 (Assoc. Comm'r 1998). 
In addition, on motion, the Petitioner did not address the inconsistencies in the record regarding the 
Beneficiary's job title with the foreign employer. This unresolved material discrepancy leaves 
substantial uncertainty as to whether the Beneficiary acted in an executive-level role. The Petitioner 
must resolve inconsistencies and discrepancies in the record with independent, objective evidence 
pointing to where the truth lies. Matter of Ho, 19 l&N Dec. 582, 591-92 (BIA 1988). 
5 
On motion, the Petitioner also asserts that the foreign employer "always had 6-12 employees and 
several sub-contractors," including managerial employees, who were supervised by the Beneficiary. 
It states that he had "personal responsibility in hiring executives in the managerial level to implement 
and run the projects into operation, as well as autonomy to dismiss (fire) employees that did not match 
the company's profile. However, the Petitioner previously made these assertions on appeal. 
Reasserting previously stated facts or resubmitting previously provided evidence does not constitute 
"new facts."7 On motion, the Petitioner has not submitted credible and probative new facts 
demonstrating that the Beneficiary was primarily employed abroad in an executive capacity. The 
Petitioner has shown proper cause for us to reopen the proceeding on this issue. 
In sum, the filing does not meet the requirements of a motion to reopen, and the motion must be 
dismissed pursuant to 8 C.F.R. § 103.5(a)(4). 
B. Motion to Reconsider 
1. Qualifying Relationship 
We determined in our appeal decision that the Petitioner has not established that it has a qualifying 
relationship with the Beneficiary's foreign employer. As detailed above, the Petitioner asserts on 
motion that it is a subsidiary of the foreign employer pursuant to 8 C.F.R. § 214.2(1)(1)(ii)(K) based 
on the revisions reflected in the amended operating agreement. However, as stated above, the 
Petitioner has not established that it was a branch, subsidiary, or affiliate of the foreign employer when 
the petition was filed in October 2018. The Petitioner has not demonstrated that our prior decision was 
legally or factually incorrect based on the record at the time of filing. We do not consider new facts 
or evidence in a motion to reconsider. Thus, the Petitioner has shown proper cause for us to reconsider 
the proceeding on this issue. 
2. Employment Abroad in an Executive Capacity 
We determined in our appeal decision that the Petitioner has not established that the Beneficiary was 
engaged in primarily executive duties. On motion, the Petitioner asserts that the Beneficiary has been 
engaged primarily in executive duties abroad as defined under section 101(a)(44)(B) of the Act. 
However, the Petitioner has not contended that our prior appeal decision was incorrect based on the 
evidence of record at the time of that decision. Instead, it submits a different job description on motion 
and fails to resolve the deficiencies and inconsistencies noted in our prior decision. Thus, the 
Petitioner has shown proper cause for us to reconsider the proceeding on this issue. 
In sum, the filing does not meet the requirements of a motion to reconsider, and the motion must be 
dismissed pursuant to 8 C.F.R. § 103.5(a)(4). 
7 These assertions relate to the Beneficiary's managerial duties. However, on motion, the Petitioner asserts that the 
Beneficiary performed primarily executive duties abroad. 
6 
Ill. U.S. EMPLOYMENT IN A MANAGERIAL OR EXECUTIVE POSITION 
WITHIN ONE YEAR 
Because the bases for dismissal of the motion described above are dispositive, we decline to reach and 
hereby continue to reserve the issue of whether the Petitioner has established that its organization will 
support an executive or managerial position within one year. See INS v. Bagamasbad, 429 U.S. 24, 
25 (1976) ("courts and agencies are not required to make findings on issues the decision of which is 
unnecessary to the results they reach"); see also Matter of L-A-C-, 26 l&N Dec. 516, 526 n.7 (BIA 
2015) (declining to reach alternative issues on appeal where an applicant is otherwise ineligible). 
IV. CONCLUSION 
For the reasons discussed, the Petitioner has not shown proper cause for reopening or reconsidering 
the previous decision or otherwise established eligibility for the benefit sought. 
ORDER: The motion to reopen is dismissed. 
FURTHER ORDER: The motion to reconsider is dismissed. 
7