dismissed L-1A Case: Travel Services

U.S. Citizenship 
and Immigration 
Services 
MATTER OF L-E-, INC. 
APPEAL OF VERMONT SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: JAN. 27, 2017 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, which describes its business as providing "[t]ravel services [and] corporate 
representation in the U.S. for foreign companies," seeks to extend the Beneficiary's temporary 
employment as its president under the L-1 A 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, Vermont Service Center, denied the petitiOn. The Director concluded that the 
evidence of record did not establish that the Beneficiary will be employed in the United States in a 
managerial or executive capacity. 
The matter is now before us on appeal. In its appeal, the Petitioner submits additional evidence and 
asserts that the Beneficiary's duties are primarily executive in nature, and that medical issues explain 
delays in staffing the petitioning company. 
Upon de novo review, we will dismiss the appeal. 
I. LEGAL FRAMEWORK 
To establish eligibility for the L-1 nonimmigrant visa classification, a qualifying organization must 
have employed the Befeficiary in a managerial or executive capacity, or in a specialized knowledge 
capacity, for 1 continuous year within 3 years preceding the Beneficiary's application for admission 
into the United States. 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, executive, or specialized knowledge capacity. Section IOI(a)(15)(L) ofthe Act. 
The regulation at 8 C.F.R. § 214.2(1)(3) states that an individual petition filed on Form I-129, 
Petition for a Nonimmigrant Worker, shall be accompanied by: 
Matter of L-E-, Inc. 
(i) Evidence that the petitioner and the organization which employed or will 
employ the alien are qualifying organizations as defined in paragraph 
(1)(1 )(ii)(G) of this section. 
(ii) Evidence that the alien will be employed in an executive, managerial, or 
specialized knowledge capacity, including a detailed description of the services 
to be performed. 
(iii) Evidence that the alien has at least one continuous year of full-time employment 
abroad with a qualifying organization within the three years preceding the tiling 
ofthe petition. 
(iv) Evidence that the alien's prior year of employment abroad was in a position that 
was managerial, executive or involved specialized knowledge and that the 
alien's prior education, training, and employment qualifies him/her to perform 
the intended services in the United States; however, the work in the United 
States need not be the same work which the alien performed abroad. 
II. EMPLOYMENT IN A MANAGERIAL OR EXECUTIVE CAPACITY 
The Director denied the petition based on a finding that the Petitioner did not establish that it will 
employ the Beneficiary in an executive capacity. The Petitioner does not claim that it will employ 
the Beneficiary in a managerial capacity. Therefore, we restrict our analysis to whether the 
Petitioner will employ the Beneficiary in an executive capacity. 
Section 101(a)(44)(B) of the Act, 8 U.S.C. § 1101(a)(44)(B), defines the term "executive capacity" 
as "an assignment within an organization in which the employee primarily": 
(i) directs the management of the organization or a major component or function of 
the organization; 
(ii) establishes the goals and policies of the organization, component, or function; 
(iii) exercises wide latitude in discretionary decision-making; and 
(iv) receives only general supervision or direction from higher-level executives, the 
board of directors, or stockholders of the organization. 
If staffing levels are used as a factor in determining whether an individual is acting in a managerial 
or executive capacity, U.S. Citizenship and Immigration Services (USCIS) 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 101(a)(44)(C) of the Act, 8 U.S.C. § 1 l0l(a)(44)(C). 
2 
(b)(6)
Matter of L-E- . Inc. 
A. Duties 
When examining the managerial or executive capacity of the Beneficiary , we will look first to the 
Petitioner's description of the job duties. The Petitioner's description of the job duties must clearly 
describe the duties to be performed by the Beneficiary and Indicate whether such 
duties are in a 
managerial or executive capacity. See 8 C.F.R. § 214.2(1)(3)(ii). 
The definition of executive capacity has two parts. First, the Petitioner must show that the 
Beneficiary will perform certain high-level responsibilities. Champion World, Inc. v. INS, 940 F.2d 
1533 (9th Cir. 1991) (unpublished table decision). Second, the Petitioner must prove that the 
Beneficiary will be primarily engaged in managerial or 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); Champion World, 940 F.2d 1533. 
The Petitioner filed the Form. I-129 on November 20, 2015. The Petitioner stated that the company 
"was established in 2010 to engage in the business of travel services" and "has recently expanded 
and diversified its services to include the establishment of business relationships and partnerships 
that allow [the Petitioner] to act as a U.S. representative for additional Brazilian companies seeking 
to expand into the U.S. market." 
On Form I-129, the Petitioner provided a brief job description for the Beneficiary: 
Define, establish and implement corporate goals and policies. Responsible for all 
financial decisions and entitled to make all discretionary decisions, such as making 
investments on behalf of the U.S. entity, as well as soliciting investors into the U.S. 
entity. Review budgets of all departments; establish company expectations, 
projections and milestones; create annual budget; develop and maintain staff 
including hiring, firing, and discipline. 
· The Petitioner stated: "The following divisions operate under the [Petitioner's] umbrella ... :" 
Providi_ng travel services for travelers via coordination and 
facilitation of hotel accommodations , rental cars, attraction tickets, vacation home 
rentals, and travel tours. 
Providing transportation services to travelers in the 
Central Florida area v1a coordination of limo services, group transportation, car 
service and guided tours. 
U.S. 
contact and support to · customers and providers. 
3 
(b)(6)
Matter of L-E-, Inc. 
U.S. contact and support 
to customers and providers. 
The Petitioner was not actively representing at the time it filed the petition in November 
2015. Instead, the Petitioner stated that "expects to begin utilizing [the Beneficiary's] 
representative services in January 2016. " The Petitioner must establish eligibility at the time of 
filing the nonimmigrant visa petition , continuing through adjudication. See 8 C.F .R. § 103 .2(b )(1 ). 
A visa petition may not be approved at a future date after the petitioner or beneficiary becomes 
eligible under , a new set of facts. See Matter of Michelin Tire Corp., 17 I&N Dec. 248, 249 (Reg ' l 
Comm'r 1978). Therefore, we will not consider the Beneficiary ' s e xpected duties with 
when examining the Beneficiary's duties at the time of filing the petition. For the same reason , we 
will not consider a subsequently submitted agreement for the Petitioner to represent 
in the United States. The date of the agreement is June 20, 2016 , 7 months after the 
. petition's filing date. 
The only representation contract in effect at the time of filing was the Petitioner's agreement with 
to provide "business partnership in the sale of export and 
import industrial equipment " for 1 year beginning September 1, 2015 . The Petitioner submitted a 
document describing products (primarily kitchen equipment for restaurants) and listing some 
of its clients, but the record 'does not show the exact nature or extent of the services that the 
Petitioner actually provided to We note that , on Schedule K of its 2014 IRS Form 1120, U.S. 
Corporation Income Tax Return, the Petitioner described its "busines s activity" as "sales" of 
unspecified "merchandise. " The Petitioner listed its business activit y code as 454390 , which 
corresponds to direct sales (as opposed to retail or wholesale) . 
The Petitioner did not initially provide information about the Beneficiary ' s duties, saying that it had 
submitted that information with a previous petition. The Director issued a request for evidence 
(RFE), asking the Petitioner to submit_~he required information about the Beneficiary's intended 
duties with the company. 
In response, the Petitioner stated: 
[The Beneficiary] initiated busin ess relationships with Brazilian companies 
In this regard , [the Beneficiary] has negotiated 
for [the Petitioner] to be the United States contact and agent for each of the 
aforementioned Brazilian companies that are working to establish a U.S. market. 
Similarly , [the Beneficiary] has adjust ed its travel and tourism offerings to provide 
transportation services and amenities to travelers coming to the U.S. [The Petitioner] 
believes decisions of this nature indicate[] that [the Beneficiary] is providing the 
highest level of responsibility in strategicall y choosing how to develop , diversify and 
implement the company's business offerings. 
4 
Matter of L-E-, Inc. 
[The Beneficiary] has developed the business concept for each division within 
[the petitioning company] and has been responsible for adjusting [the Petitioner's] 
business model and offerings based on market reactions and needs. . . . [The 
Beneficiary] exercises full discretion to make decisions in the best interests of the 
company. 
A separate, unsigned and unattributed statement reads as follows: 
DUTIES EVIDENCING DIRECTION AND MANAGEMENT OF THE 
ORGANIZATION: 
• Manages and directs all strategic pursuits of the organization including, but 
not limited to: develop business contacts and relationships; meet and 
negotiate with business and commercial vendors for services and products; 
responsible for approval of all contracts. 
• Analyzes tourism and travel trends to stay abreast of changes or developments 
impacting the business model and profitability and utilizes this information to 
establish or revise company goals and policies. 
• Solely responsible for development and implementation of any new business 
offerings and endeavors. 
• Responsible for development of marketing strategies. 
• Acts as the primary company representative for all financial, business and 
commercial obligations. 
• Responsible for all personnel decisions including hiring, firing, rate of pay, 
promotion, reprimand and requests for leave. 
• Responsible for all discretionary decision making that impacts the U.S. 
enterprise. 
• Meets regularly with contracted providers and contacts of business divisions 
to review ongoing issues or concerns and to determine the state of business 
operations. 
TIME DISTRIBUTION 
• Strategic pursuits: meet and negotiate with vendors, 30% or 12 hrs/wk. 
service providers; review contracts on behalf of the 
company 
• Review current projects or issues with contracted 10% or 4 hrs/wk. 
providers; 
• Act as company representative for all business 10% or 4 hrs/wk. 
obligations; 
• Review and monitor markets and trends for business 25% or 10 hrs/wk. 
development and improvement of company policies 
and goals; 
5 
Matter of L-E-, Inc. 
• Review tourism and travel trends and offerings; 
• Marketing: 
Analysis and development of marketing strategies; 
Review and solicit marketing opportunities; 
Negotiate marketing terms and contracts. 
15% or 6 hrs/wk. 
1 0% or 4 hrs/wk. 
The six tasks listed under "Time Distribution" correspond partially, but not entirely, to the seven 
responsibilities listed above them. 
The Director denied the petition, concluding that several of the Beneficiary's described duties do not 
appear to be those of an executive, but rather those of "an employee who will be performing the 
tasks necessary to provide a service or to produce a product." 
On appeal, the Petitioner disputes the Director's conclusion, stating that most of the various elements 
listed above show that the Beneficiary has ultimate discretionary authority over the company. The 
Petitioner acknowledges that developing marketing strategy is not an executive task, but notes that 
this task occupies only a small percentage of the Beneficiary's time, and therefore the Beneficiary 
still primarily performs executive tasks. 
The Beneficiary's level of discretionary authority is not in dispute, but the submitted job description 
does not provide enough detail to show that the Beneficiary's duties were primarily executive in 
nature. Vague terms such as "development and implementation" do not tell us what, exactly, the 
Beneficiary does. Similarly, stating that the Beneficiary acts as the "company representative for all 
business obligations" tells us nothing of what this activity entails. Acting as the company 
representative does not appear to refer to participating in business negotiations, marketing, and 
project review, because the Petitioner listed those activities elsewhere in the job description. The 
Petitioner's assertion that the Beneficiary is the "face of the brand" sheds no further light on the 
question. Specifics are clearly an important indication of whether a beneficiary's duties are 
primarily executive or managerial in nature, otherwise meeting the definitions would simply be a 
matter of reiterating the regulations. 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). 
The "Time Distribution" chart is questionable. It indicates that the Beneficiary must "meet and 
negotiate with vendors [and] service providers [and] review contracts on behalf of the company" for 
12 hours a week. The Petitioner has documented only a small number of contracts, executed over 
the course of several months. The record simply does not contain enough information to show the 
Beneficiary spends, on average, 30% of her time negotiating and reviewing contracts. 
Furthermore, as we will discuss in tpe next section below, the Petitioner employed no subordinates 
under the Beneficiary at the time of filing, and only a fraction of the Petitioner's services had been 
outsourced to contractors. The Petitioner has not shown that anyone other than the Beneficiary 
herself was present to provide those services, which would necessarily reduce the amount of time 
that the Beneficiary was able to devote to executive functions. 
6 
Matter of L-E-, Inc. 
The Petitioner submits medical documentation showing that circumstances required the Beneficiary 
to work part-time for several months. The Director, however, did not deny the petition based on the 
length of the Beneficiary's work day. The submitted evidence does not address any stated basis for 
the denial of the petition. 
B. Staffing 
Beyond the required description of the job duties, USCIS reviews the totality of the record 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 factors that will contribute to understanding a beneficiary's actual duties and role in a 
business. 
The statutory definition of the term "executive capacity" focuses on a person's elevated position 
within a complex organizational hierarchy, including major components or functions of the 
organization, and that person's authority to direct the organization. Section 101(a)(44)(B) of the 
Act, 8 U.S.C. § 1101(a)(44)(B). Under the statute, a beneficiary must have the ability to "direct the 
~management" and "establish the goals and policies" of that organization. Inherent to the definition, 
the organization must have a subordinate level of managerial employees for a beneficiary to direct 
and' a beneficiary must primarily focus on the broad goals and policies of the organization rather than 
the day-to-day operations of the enterprise. An individual will not be deemed an executive under the 
statute simply because they have an executive title or because they "direct" the enterprise as an 
owner or sole managerial employee. A beneficiary must also exercise "wide latitude in discretionary 
decision making" and receive only "general supervision or direction from higher level executives, 
the board of directors, or stockholders of the organization." !d. 
We note that a company's size alone, without taking into account the reasonable needs of the 
organizati~n, may not be the determining factor in denying a visa petition for classification as a 
multinational manager or executive. See section 101 (a)( 44 )(C) of the Act. However, it is 
appropriate for USCIS to consider the size of the petitioning company in conjunction with other 
relevant factors, such as the absence of employees who would perform the non-managerial or 
non-executive operations of the company, or a "shell company" that does not conduct business in a 
regular and continuous manner. See e.g., Family Inc., 469 F.3d 1313; Systronics Corp. v. INS, 153 
F. Supp. 2d 7, 15 (D.D.C. 2001). The size of a company may be especially relevant when USCIS 
notes discrepancies in the record and fails to believe that the facts asserted are true. See Systronics, 
153 F. Supp. 2d at 15. 
At the time of filing, the Beneficiary was the company's only employee. The Petitioner asserts that 
it outsources many of its operational and administrative functions to outside companies, so that the 
I 
7 
-------- ---- ----------------------------------
(b)(6)
Matter of L-E-, Inc .. 
Beneficiary does not have to perform those functions herself. Invoices from 
show that the Petitioner had booked various vacation packages through that entity.1 
· A Tourism Services Agreement between the Petitioner and _ _ 
shows that the Petitioner contracted "to render tourism services within [Brazil], negotiating, 
promoting and intermediating businesses especially related to the sales of [the Petitioner's] 
Packages." Under the agreement, "shall centralize and control ... confirmations of 
reservations and . . . the receipt of pre-payments of Packages sales performed by itself and by 
Clients," defined as "Brazilians [who purchase tour packages from the Petitioner] either directly or 
through travel and tourism agencies in Brazil." The agreement does not identify specific tourism 
services provided by the Petitioner rather than by or other entities in Brazil. 
A Website Access Agreement between the Petitioner and describes the 
Petitioner as "an online agent/Operator [that] acts as a 'B2B' intermediary in the provision of certain 
travel services, including accommodation reservation services, excursion services, transfer services, 
representative services, ticket services, [and] group special offers." This indicates that the Petitioner 
plays some operational role in booking the travel-related services. 
In response to the RFE, the Petitioner submitted an organizational chart showing the following 
positions, with annotations as shown: 
• President [the Beneficiary] 
• Vice President [the Beneficiary's spouse] (pending work authorization) 
• Marketing/Web Designer (to be filled) 
• Administrative Assistant (to be filled) 
• Travel & Transport Manager (to be filled) 
• Travel & Transport Agent (to be filled) 
• Transportation Providers ( outsourced) 
• International Sales Representative (to be filled) 
• U.S. Sales Agent (4) (to be filled) 
• Accountant (outsourced) 
• Bookkeeper ( outsourced) ·'""'· 
The Petitioner did not say who was performing the duties corresponding to the many unfilled 
positions listed above. The Beneficiary' s spouse. has signed some documents in the record under the 
title of vice president, but his acknowledged lack of employment authorization means that he could 
not lawfully perform any duties for the company. 
1 
The name appears on vouchers for various hotels and car rental companies, although there is no 
evidence that any corporation exists by that name. Instead , is a fictitious name under which the 
Petitioner does business. 
8 
(b)(6)
\ 
\ 
Matter of L-E-, Inc. 
The Petitioner submitted invoices and related documents concerning the outsourced functions. With 
respect to outsourced "Transportation Providers," the Petitioner submitted copies of an invoice from 
dated November 15, 2015, and monthly receipts from 
dated between January and June 2016. Only the invoice predates the filing of 
the petition. There is no evidence that the Petitioner had an arrangement with 
in 2015, and the Petitioner's initial filing contained no mention of The 
documents from 2016 do ·not show that the company provided transportation services to 
the Petitioner at the time of filing in November 2015. See Michelin Tire Corp., 17 I&N Dec. 249. 
The invoice described arrangements to pick up a group of passengers, and specified that the 
vehicle "must [hold] 61 passengers." It appears that the Petitioner made a one-time arrangement 
with to pick up an unusually large number of passengers; there is no evidence that the 
Petitioner made any transportation arrangements with before or after November 15, 2015. 
I 
The Petitioner had previously submitted an Affiliate Contract Agreement between the Petitioner and 
, dated December 16, 2014. The agreement includes instructions to "drivers" and 
"contractors," and includes specifications for "all vehicles sent on jobs." This 
indicates that licenses its name to contracted drivers. The Petitioner has not 
submitted any evidence to show that it has outsourced this responsibility to third parties. Instead, the 
agreement, on its face, indicates that the Petitioner operates vehicles under the 
name. Invoices in the record, billable to and showing the logo of 
, include information about passengers, pickup and drop-off points, and fares, and identify 
the Petitioner under "Affiliate Name." The invoices are dated between April and September of 
2015. The Petitioner does not say who in the petitioning company drove the 1 imousines on those 
occasions. At the time of filing, the Petitioner did not mention . Therefore, the 
record strongly indicates that the Petitioner provided 
transportation services rather than outsourced 
them, except on one occasion where the size of the traveling group required a larger vehicle. 
In the denial notice, the Director found that the vacancy of all subordinate positions at the time of 
filing suggested that the Beneficiary was performing the duties of those subordinates. 
On appeal, the Petitioner states 
that it "began recruitment to fill its first .subordinate positions in the 
summer of 2016." As we have observed, the regulation at 8 C.F .R. § 103 .2(b )(1) requires eligibility 
at the time of filing. The Petitioner had no subordinate staff at the time of filing to relieve her from 
performing non-qualifying tasks that she could otherwise have delegated to them. See Michelin Tire 
Corp., 17 I&N Dec. 249. In the absence of any subordinate staff, the Petitioner maintains tha~ "the 
business remained operational and ... was still able to diversify business offerings." The Petitioner 
does not say who, other than the Beneficiary, operated the business at the time of filing. 
Based on the deficiencies discussed above, the Petitioner has not established that it will employ the 
Beneficiary in an executive capacity in the United States. 
9 
(b)(6)
Matter of L-E-, Inc. 
III. QUALIFYING RELATIONSHIP 
Beyond the Director's decision, the record does not establish that the Petitioner has a qualifying 
relationship with the Beneficiary's foreign employer. 
To establish a "qualifying relationship" under the Act and the regulations, a 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 
generally section 101(a)(15)(L) ofthe Act; 8 C.F.R. § 214.2(1). 
The pertinent regulations at 8 C.F.R. § 214.2(l)(l)(ii) define the term "qualifying organization" and 
related terms as follows: 
(G) QualifYing organization means a United States or foreign firm, corporation, or 
other legal entity which: 
(1) Meets exactly one of the qualifying relationships specified in the 
definitions of a parent, branch, affiliate or subsidiary specified in 
paragraph (1)( 1 )(ii) of this section; 
(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; 0~ owns, directly or indirectly, less than half of 
the entity, but in fact controls the entity. 
On Form I-129, the Petitioner indicated that it is a wholly owned subsidiary of 
. The Petitioner submitted no evidence to support this assertion, stating 
that the evidence had accompanied an earlier petition. However, the record raises questions which 
the Petitioner would have to answer in the absence of other grounds for denial. 
The IRS Form 1120·tax return asks, in several places, for information about foreign ownership. The 
Petitioner, on its return, gave no indication of foreign ownership, and repeatedly denied it. On 
Schedule K, question 3 asked whether the Petitioner was a subsidiary of another company, and 
questions 4 and 7 asked about foreign ownership and indicated that the Petitioner had to file 
additional forms to describe the foreign ownership. The Petitioner answered "no" to all these 
qu~stions and did not submit the related forms. Therefore, the Petitioner's own income tax return 
consistently contradicts the Petitioner's claim to be a wholly-owned subsidiary of a foreign 
corporation. 
10 
( 
Matter of L-E-, Inc. 
The Petitioner has not demonstrated that it has a qualifying relationship with the Beneficiary's 
foreign employer, and for this additional reason, the appeal will be dismissed. 
IV. CONCLUSION 
The petition will be denied and the appeal dismissed for the above stated reasons, with each 
considered as an independent and alternative basis for the decision. In visa petition proceedings, the 
burden of proving eligibility for the benefit sought remains with the petitioner. Section 291 of the 
Act, 8 U.S.C. § 1361. Here, that burden has not been met. 
ORDER: The appeal is dismissed. 
Cite as Matter of L-E-. Inc., ID# 154456 ( AAO Jan. 27, 20 17) 
II