dismissed L-1A Case: Sports Management And Marketing

U.S. Citizenship 
and Immigration 
Services 
In Re: 9508368 
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 : OCT . 5, 2020 
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 nonimmigrant 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 the Beneficiary was employed abroad in a managerial or executive capacity , and that the 
Petitioner's new office will support an executive or managerial position within one year of the 
approval of its petition on the Beneficiary's behalf. 
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 de nova review, we will dismiss the appeal. 
I. LEGAL FRAMEWORK 
To establish eligibility for the L-lA nonimrnigrant 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 his or her services to the same employer 
or a subsidiary or affiliate thereof in a managerial or executive capacity. Id. 
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 petitioner 
secured sufficient physical premises to house its operation and disclose the proposed nature and scope 
1 The tenn "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(l)(l)(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. 
of the entity, its organizational structure, its financial goals, and the size of the U.S. investment. See 
generally, 8 C.F.R. § 214.2(1)(3)(v). 
II. QUALIFYING RELATIONSHIP 
As a preliminary matter, and beyond the decision of the Director, the first issue we will address is 
whether the Petitioner has established that it has a qualifying relationship with the Beneficiary's 
foreign employer. 2 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 
10l(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"). As we discuss below, the Petitioner has not 
established that it has a qualifying relationship with the Beneficiary's foreign employer. 
A. Ownership and Control of the Foreign Employer 
The Petitioner initiall submitted a business re istration document showing that the Beneficiary's 
foreign employer,.__....---.----------------' was established as a limited liability 
company in Brazil in 2014. In responding to the Director's request for evidence (RFE), it added 
a Brazilian document, with an English translation, titled "Articles of Incorporation and Operational 
Agreement." In addition to the inconsistency in the title, referring to documents associated with both 
corporations and limited liability companies, the translation also includes farther conflicting 
information as to its type of business entity, as it refers to the entity both as a partnership and a limited 
partnership, and indicates that the two partners own shares in the company. 
Despite these inconsistencies, the "Articles of Incorporation and Operational Agreement," when 
considered together with the Brazilian business registration document, sufficiently demonstrates that 
the foreign employer is 90% owned by the Beneficiary and 10% by the Beneficiary's spouse. 
B. Ownership and Control of the Petitioner 
The initially submitted evidence included a certificate of organization and articles of organization 
~ that the Petitioner was established as a limited liability company in the state of Georgia in 
L___J 201 7. As general evidence of a petitioner's claimed qualifying relationship, a certificate of 
formation or organization of a limited liability company (LLC) alone is not sufficient to establish 
ownership or control of an LLC. LLCs are generally obligated by the jurisdiction of formation to 
maintain records identifying members by name, address, and percentage of ownership, and written 
statements of the contributions made by each member, the times at which additional contributions are 
to be made, events requiring the dissolution of the limited liability company, and the dates on which 
each member became a member. These membership records, along with the LLC's operating 
agreement, certificates of membership interest, and minutes of membership and management 
meetings, must be examined to determine the total number of members, the percentage of each 
2 Although the Director did not include this as a ground for denial of the petition in her decision, she did seek additional 
evidence on this issue in her request for evidence (RFE), to which the Petitioner responded. We are addressing it in our 
decision as the issue is dispositive. 
2 
member's ownership interest, the appointment of managers, and the degree of control ceded to the 
managers by the members. Additionally, a petitioning company must disclose all agreements relating 
to the voting of interests, the distribution of profit, the management and direction of the entity, and 
any other factor affecting control of the entity. Matter of Siemens Med. Sys., Inc., 19 I&N Dec. 362 
(Comm'r 1986). 
Here, the Petitioner indicated on the Form 1-129 L classification supplement that the Beneficiary 
"owns 50% of shares" in the company. It provided additional evidence regarding its ownership and 
control in response to the Director's RFE, which included both a partnership agreement and an 
operating agreement. Both documents list the same three individuals as partners and members, one of 
whom is the Beneficiary. 3 In addition, both documents show the amount of capital contributed by 
each individual, with the Beneficiary and partner or member Beach contributing $15,000, and partner 
or member C contributing $151,000. 
The Petitioner appears to base its assertion that the Beneficiary owns 50% of the company upon the 
distribution of profits and losses stated in the partnership agreement in paragraph 14, which indicates 
that the Beneficiary receives 50%, partner B 10%, and partner C 40%. However, there is no clause in 
the agreement which supports this asserted relationship between ownership and profit distribution, nor 
does the agreement contain a provision addressing the percentage of ownership held by each partner. 
Regarding control of the Petitioner, it indicated in an organizational chart included with the RFE 
response that the Beneficiary and partner B have operational control due to their respective positions 
as marketing director and CEO, respectively. However, the partnership agreement indicates that 
financial (paragraph 13) and management (paragraph 21) decisions, among others, are made by a 
majority vote of the partners, and does not indicate that any partner has a greater voting interest than 
any other. Therefore, absent evidence of a separate voting agreement, this document shows that 
neither the Beneficiary nor any of the individual partners have majority control over the Petitioner. 
Turning to the operating agreement, it states in paragraph 46, "Valuation oflnterest," that "a Member's 
financial interest in the Company will be in proportion to their Capital Contributions." Therefore, 
based upon the information regarding capital contributions included in both agreements and in the 
meeting minutes submitted, the Beneficiary and member Beach have an 8.3% ownership interest in 
the Petitioner, while member C owns the remaining 83.4% interest. Concerning control of the 
Petitioner, paragraph 17, "Management," states that member Bis the company's sole manager, with 
paragraph 25 indicating that only a manager has the authority to bind the Petitioner in contract. The 
meeting minutes do not indicate that another manager has been added to the company. Further, 
paragraph 30 provides that members may cast votes on any matter in proportion to their capital 
contributions. Therefore, the operating agreement vests both majority ownership and control in 
member C, while also granting significant operational control to member B as the manager. 
Although the Petitioner's assertions regarding the Beneficiary's ownership interest appear to be based 
on the provisions of the partnership agreement, and the Petitioner did not provide an explanation for 
the discrepancies between these two documents, we note that the two most recent annual meeting 
3 The partnership agreement is date~ I 2017, the same date as the Certificate of Organization from the Georgia 
Secretary of State acknowledges receipt of aiiicles of organization. The operating agreement is dated October 30, 2017. 
3 
minutes in the record, dated June 30, 2018, and March 30, 2019, do not refer to the partnership 
agreement but only to the operating agreement. We will therefore consider that document to represent 
the ownership and control of the Petitioner in analyzing whether it and the Beneficiary's foreign 
employer have a qualifying relationship. 
C. Relationship Between the Companies 
The Petitioner indicated on the Form I-129 L classification supplement that it is a branch of the 
Beneficiary's foreign employer. The regulations define the term "branch" as "an operating division 
or office of the same organization housed in a different location." 8 C.F.R. § 214.2(1)(1)(ii)(J). USCIS 
has recognized that the branch office of a foreign corporation may file a nonimmigrant petition for an 
intracompany transferee. See, e.g., Matter of Leblanc, 13 I&N Dec. 816 (Reg'l Comm'r 1971); Matter 
of Schick, 13 I&N Dec. 647 (Reg'l Comm'r 1970); see also Matter of Penner, 18 I&N Dec. 49, 54 
(Comm'r 1982) (stating that a Canadian corporation may not petition for L-lB employees who are 
directly employed by the Canadian office rather than a U.S. office). To establish that it is a branch 
office in the United States, a petitioner must demonstrate that it is bound to the foreign entity through 
common ownership and management. 
Probative evidence of a branch office could include a certificate of authority from the secretary of state 
in the U.S. state where the foreign business established its office; a state business license establishing 
that the foreign corporation is authorized to engage in business activities in the United States; copies 
oflnternal Revenue Service (IRS) Forms 1120-F, U.S. Income Tax Return of a Foreign Corporation; 
copies IRS Forms 941, Employer's Quarterly Federal Tax Returns, listing the branch office as the 
employer; copies of a lease for office space in the United States; or any state tax forms or other relevant 
evidence demonstrating that the petitioner is a branch office of a foreign entity. 
Where, as in this case, a petitioner submits evidence to show that it is incorporated in the United States, 
then it will not qualify as "an ... office of the same organization housed in a different location," since 
it is a distinct legal entity separate and apart from the foreign organization. See, e.g., Matter of M, 8 
I&N Dec. 24, 50 (BIA 1958, AG 1958); Matter of Aphrodite Invs. Ltd., 17 I&N Dec. 530 (Comm'r 
1980); and Matter of Tessel, 17 I&N Dec. 631 (Acting Assoc. Comm'r 1980). If the claimed branch 
is incorporated in the United States, or organized as a limited liability company as here, we must 
examine the ownership and control of that corporation or LLC to determine whether it qualifies as a 
subsidiary or affiliate of the foreign employer. 
The regulation at 8 C.F.R. § 214.2(l)(l)(ii)(K) defines subsidiary as follows: 
(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 discussed above, the evidence shows that the Beneficiary holds a 90% ownership interest in his 
foreign employer, with his spouse holding the remaining 10%. However, the Petitioner's operating 
4 
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 
above; therefore, the Petitioner is not a subsidiary of the foreign employer. 
The evidence is also insufficient to establish an affiliate relationship between the foreign employer 
and the Petitioner. The two entities are not "owned and controlled by the same group of individuals, 
each individual owning controlling approximately the same share or proportion of each entity .... " 
8 C.F.R. § 214.2(1)(1 )(ii)(L )(2) ( emphasis added). In addition, there is no parent entity with ownership 
and control of both companies that could also qualify the two as affiliates. 8 C.F.R. 
§ 214.2(1)(1)(ii)(L)(]). Although the Beneficiary owns (and presumably controls) the foreign entity, 
the same has not been established regarding the Petitioner. In addition, the evidence does not show 
that the two companies are owned and controlled by the same group of individuals, as the Petitioner's 
members Band C have no ownership interest or control in the foreign entity. 
Upon review of the evidence in the record pertaining to the ownership and control of the Petitioner 
and the Beneficiary's former employer, we find that they do not have the requisite qualifying 
relationship. For this reason, the petition cannot be approved. 
III. EMPLOYMENT ABROAD IN AN EXECUTIVE CAP A CITY 
The second issue to be addressed in this decision is whether the Petitioner has established that the 
Beneficiary's employment abroad was in a managerial or executive capacity. It initially indicated on 
the L Supplement to Form I-129 that he has served as a general manager for~--------~ 
~--------' since May 2014. However, a separate letter from the foreign employer stated that 
the Beneficiary has served as a director and manager, and his job title is given as marketing director 
elsewhere in the record, including pay receipts from 201 7. In her decision, the Director determined 
that the Petitioner had not established that the Beneficiary had served as either a manager or executive 
for this employer. On appeal, the Petitioner clarifies that in addition to being the owner and founder 
of this company, the Beneficiary is its "main executive" and has served in this role since its founding. 
We will therefore consider only whether he was engaged in primarily executive duties as defined under 
section 10l(a)(44)(B) of the Act. 
"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. 
The petitioner must show that the beneficiary performed all four of the high-level responsibilities set 
forth in the statutory definition at section 10l(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 determining whether the beneficiary's duties were 
primarily executive, we consider the description of the job duties, the company's organizational 
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structure, the duties of the beneficiary's subordinate employees, the presence of other employees who 
relieved 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. 
If staffing levels are used as a factor in determining whether an individual was acting in an executive 
capacity, we must take into account the reasonable needs of the organization, in light of the overall 
purpose and stage of development of the organization. See section 10l(a)(44)(C) of the Act. 
Accordingly, we will discuss evidence regarding the Beneficiary's job duties along with evidence of 
the nature of the foreign employer's business and its staffing levels. 
A. Factual Background 
The Petitioner stated on the Form I-129 L Classification Supplement that in his role with~I ----~ 
~-----------~' the Beneficiary "developed and carried out all business decisions, 
hired and fired staff: established business partnerships, designed courses and executive programs." In 
responding to the Director's RFE, it submitted a letter from the Beneficiary's foreign employer, 
indicating that his duties as its founder included the opening of bank accounts, hiring and firing of 
employees, attracting investors for projects, leading annual strategic planning and establishing sales 
and employee performance goals. 
On appeal, the Petitioner submits an additional letter from the foreign employer, but it provides little 
additional information regarding the Beneficiary's day-to-day duties with the company, noting that he 
has been "the creator of the major projects created in the realm of sports in which the company is 
engaged." 4 The Petitioner's brief also adds that the Beneficiary: 
a) Implements and designs company policy, as well as company strategies for marketing and 
sales; 
b) Hires and fires key managerial personnel; 
c) Signs every single major document with government agencies as well as clients and 
suppliers; 
d) Works through managers and subordinates to achieve company goals; and 
e) Controls major functions of the company. 
Regarding the organizational structure of the company, the Petitioner submitted a list of six employees 
in response to the RFE, along with their position titles and salaries. As noted by the Director in her 
decision, this list did not explain the foreign employer's organizational structure, and was not 
accompanied by a description of the duties performed by these employees. On appeal, the Petitioner 
has now submitted an organizational chart, along with brief position descriptions for four out of the 
4 In addition, the Petitioner asserts in the briet: for the first time, that in addition to qualifying as an executive, the 
Beneficiary has been employed in a specialized knowledge capacity for the foreign entity. It refers to recommendation 
letters in the record regarding the Beneficiary's work in the marketing and management of several sports events, stating 
that the activities and revenue generated "were made possible by contacts, networking and the special ability in sales, 
advertising and marketing that [the Beneficiary] possesses." However, the Petitioner may not make a previously unstated 
claim on appeal. Further, we note that the evidence is insufficient to establish that the foreign position required specialized 
knowledge. 8 C.F.R. § 214.2(1)(3)(iv). 
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six employees. The chart shows the same names that were previously included with the employee 
list, but one of the employees previously listed as an assistant is now shown as the company's human 
resources manager. She and two others, with the titles of"Academic Director" and "Events Manager," 
are depicted as the second level of management in the organization, all reporting to the Beneficiary 
with the title of "MKT Director." It further indicates that the academic director has one individual 
reporting to him in the position of trainee, while the events manager supervises an administrative 
assistant and the human resources manager has no direct reports. The brief position descriptions 
accompanying the chart indicate that the events manager and academic director are responsible for 
conducting events and have some discretion regarding expenditures. Despite the managerial title of 
the position, the position description for the human resources manager indicates that she carries out 
personnel decisions dictated by the Beneficiary and is responsible for payroll and collection duties. 
B. Analysis 
Whether the Beneficiary was an executive employee abroad turns on whether the Petitioner has 
sustained its burden of proving that his duties were "primarily" executive. See sections 
10l(a)(44)(A)(B) of the Act. Here, the Petitioner does not document what proportion of the 
Beneficiary's duties were executive functions and what proportion were non-qualifying, despite the 
Director's request for this information in her RFE. The Petitioner lists the Beneficiary's duties as 
including both managerial (hiring and firing of employees, establishing employee performance goals) 
and executive (leading annual strategic planning, estimating sales and marketing goals, designing 
company policies) tasks, as well as administrative and operational tasks. However, the Petitioner does 
not quantify the time the Beneficiary spent on these different duties. This lack of documentation is 
important because several of the Beneficiary's duties, such as "carrying out all business decisions," 
"designing courses and executive programs," and "open[ing] bank accounts" are not executive duties 
as defined in the statute. 
In addition, the Petitioner's emphasis on appeal on the Beneficiary's specialized knowledge in the 
sales and marketing of sporting events, and his history of providing sales and management consulting 
and creating educational programs, indicates that rather than primarily focusing on executive 
functions, the Beneficiary relied on this sales and marketing knowledge and expertise to perform 
operational tasks. For this reason, we cannot determine whether the Beneficiary was primarily 
performing the duties of a manager or an executive during the requisite one year period abroad. See 
IKEA US, Inc. v. US. Dept. of Justice, 48 F. Supp. 2d 22, 24 (D.D.C. 1999). 
We also note that the descriptions of the Beneficiary's duties lack specific details about the daily tasks 
he performed and were limited to general responsibilities. For example, the statement in the 
Petitioner's appeal brief that the Beneficiary "works through managers and subordinates to achieve 
company goals" does not provide insight into what tasks are delegated to those subordinates, and the 
descriptions of those subordinates' duties also provide limited information in this regard. Reciting a 
beneficiary's vague job responsibilities or broadly-cast business objectives is not sufficient; the 
regulations require a detailed description of the beneficiary's daily job duties. 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), ajf'd, 905 F.2d 41 (2d. Cir. 1990). Here, the Petitioner has not provided 
the necessary detail or an adequate explanation of the Beneficiary's activities in the course of his daily 
7 
routine. Without farther insight into his day-to-day tasks, we cannot determine whether the 
Beneficiary allocated his time primarily to executive duties. 
Further, the fact that the Beneficiary manages or directs his own business does not necessarily establish 
eligibility for classification as an intracompany transferee in an executive capacity within the meaning 
of section 101 (a)( 44) of the Act. By statute, eligibility for this classification requires that the duties 
of a position be "primarily" managerial or executive in nature. Sections 101(A)(44)(A) and (B) of the 
Act. While the Beneficiary may exercise discretion over the foreign entity's day-to-day operations 
and possess the requisite level of authority with respect to discretionary decision-making, the position 
descriptions alone are insufficient to establish that his actual duties were primarily executive in nature. 
IV. U.S. EMPLOYMENT IN A MANAGERIAL OR EXECUTIVE POSITION WITHIN ONE 
YEAR 
Because the bases for dismissal of the appeal described above are dispositive, we decline to reach and 
hereby 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 I&N Dec. 516, 526 n. 7 (BIA 2015) ( declining 
to reach alternative issues on appeal where an applicant is otherwise ineligible). 
V. CONCLUSION 
The Petitioner has not established that it has a qualifying relationship with the Beneficiary's foreign 
employer and that the Beneficiary was employed abroad in an executive capacity. The appeal will be 
dismissed for the above stated reasons. 
ORDER: The appeal is dismissed. 
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