remanded L-1A Case: Bakery

U.S. Citizenship 
and Immigration 
Services 
MATTER OF S-1-1-L-, INC. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: MAR. 13,2018 
APPEAL OF CALIFORNIA SERVICE CENTER DECISION 
PETITION: FORM 1-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, an Asian bakery, seeks to temporarily employ the Beneficiary as its "CEO/President" 
under the L-1 A nonimmigrant classification for intracompany transferees. See Immigration and 
Nationality Act (the Act) section IOI(a)(IS)(L), 8 U.S.C. § llOI(a)(IS)(L). The L-lA classification 
allows a corporation or other legal entity (including its affiliate or subsidiary) to transfer a qualifying 
foreign employee to the United States to work temporarily in a managerial or executive capacity. 
The Director of the California Service Center denied the petition concluding that the Petitioner did 
not submit suflicient evidence to establish that the Beneficiary was employed abroad in a managerial 
or executive capacity and that the Beneficiary would, within one year of commencing its U.S. 
operation as a new office, be employed in a managerial or executive capacity in the United States. 
On appeal, the Petitioner disputes the Director's decision, claiming that the Beneficiary was 
employed abroad and would be employed in the United States in a managerial or executive capacity. 
With regard to the Beneficiary's employment abroad, the Petitioner clarified the Beneficiary's role 
within the foreign entity, pointing to her job duty breakdown and her placement within the 
organization. The Petitioner pointed to the Beneficiary's discretionary authority over the foreign 
entity's finance and marketing activities and the division heads who carry out the underlying duties 
related to those activities. 
Upon de novo review, we tind that the Petitioner submitted sufficient evidence to establish that the 
Beneficiary was, more likely than not, employed in a managerial or executive capacity. Therefore, 
we lind that the Petitioner has overcome the Director's decision regarding the Beneficiary's 
employment abroad. However, we find that in making the determination regarding the Beneficiary's 
proposed U.S. employment, the Director erroneously relied on the regulatory provisions at 8 C.F.R. 
§ 214.2(1)(3)(v), which pertain to a bene11ciary who is coming to the United States to open or to be 
employed in a new office. 1 The record shows that the Petitioner responded "No" to the question on 
the petition asking whether the Beneficiary would be coming to the United States to open a new 
office. Therefore, the Petitioner did not file the Form 1-129 seeking treatment as a new office. As 
1 
The term "new office" is defined as an organization that has been doing business in the United States through a parent, 
branch, affiliate, or subsidiary for less than one year. 8 C.F.R. § 214.2(l)(l)(ii)(F). 
Matter of S-H-L-. Inc. 
the Director applied an incorrect regulatory provision when making the determination regarding the 
Beneficiary's proposed position with the Petitioner and the evidence showing that the Beneficiary 
was more likely than not employed abroad in a managerial or executive capacity, we will withdraw 
the Director's decision. 
I. BASIS FOR REMAND 
Notwithstanding the Director's error, we find that the record as presently constituted does not 
establish that the Beneficiary would be employed in the United States in a managerial or executive 
capacity or that the Petitioner has a qualifying relationship with the Beneficiary's employer abroad. 
A. U.S. Employment 
First, we find that the Petitioner did not establish, as required, that it would employ the Beneficiary 
in a managerial or executive capacity under an approved petition. Neither the Beneficiary's job 
description nor the Petitioner's staffing structure adequately demonstrates that the Petitioner was 
able to employ the Beneficiary in a managerial or executive capacity at the time. the petition was 
filed. See 8 C.F.R. § 103.2(b)(l). 
As noted above, the Petitioner did not ask for treatment as a new office. Therefore, going forward, a 
detem1ination of whether the Beneficiary's prospective employment would be in a managerial or 
executive capacity must be made in reliance on the applicable regulatory provisions that pertain to 
non-new oftice petitions. 
B. Qualifying Relationship 
We also find that this petition is not approvable because the Petitioner has not provided sufticient 
evidence to establish, as required, thatit 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 that they are related as a "parent and subsidiary" or as 
"affiliates." See generally section 10l(a)(l5)(L) of the Act; 8 C.F.R. § 214.2(1). 
In the present matter, the Petitioner marked the box for "affiliate" 2 at Section I, No.9 of the Form 1-
129, L Classification Supplement, but claimed that the foreign entity is majority owner of the 
Petitioner's stock at Section I, No. I 0 of the L Classification Supplement. We note, however, that 
evidence of the foreign entity owning the majority of the U.S. entity is indicative of a parent-
2 The term "affiliate" is defined in relevant part, as (I) one of two subsidiaries both of which are owned and controlled 
by the same parent or individual, or (2) one of two legal entities owned 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)( I )(ii)(L). 
2 
.
Mauer ofS-H-L-. Inc. 
subsidiary relationship. 3 Here, in addition to the inconsistency described herein, the record contains 
other, more critical anomalies that preclude a finding that the Petitioner has the required quali(ying 
relationship either as an affiliate or a subsidiary of the foreign entity. 
First, we note that the Petitioner's Articles and Certiticate of Incorporation show that the Petitioner 
was established on November 28, 2016. The record also contains a document titled "Term Sheet," 
dated October l 4, 2016, which was executed on November 15, 2016, by who was 
identified as the Petitioner's owner. However, the record does not clarify when became 
the Petitioner's owner or how the Petitioner could have offered stock for purchase prior to its coming 
into existence as a recognized entity. The Petitioner must resolve this incongruity in the record with 
independent, objective evi~ence pointing to where the truth lies. Matter of Ho, 19 I&N Dec. 582, 
591-92 (BIA 1988). 
Second, the record includes documents that are inconsistent as to the identity of the Petitioner's 
majority owner. Namely, Section 1, No. 10 of the L Classification Supplement indicates that the 
foreign entity is the Petitioner's majority stockholder; this claim is consistent with the Petitioner's 
stock certificate no. I 004, which names the foreign entity as owner of 600,000 of one million shares 
of the Petitioner's issued stock. However, the record includes a capitalization table that was 
included as "Appendix A" of the "Term Sheet" and specifically names the Beneficiary, rather than 
the foreign entity, as owner of the 600,000 shares. This inconsistency must also be addressed and 
resolved in order to establish the identity of the Petitioner's m~ority stockholder. 
Lastly, the Petitioner provided stock certificate nos. l 005 and l 004, issued in January and March 
2017, respectively. It is unclear why the certificate that was issued in March sequentially precedes 
the one issued earlier in January. As with the above described inconsistencies, this anomaly must 
also be addressed through the submission of credible supporting evidence. 
II. CONCLUSION 
Accordingly, v.:e hereby withdraw the Director's decision and remand this matter for further 
consideration and entry of a new decision. The Director should request any additional evidence 
deemed necessary to det"ermine the Petitioner's eligibility and allow the Petitioner to submit such 
evidence within a reasonable period of time. 
ORDER: The decision of the Director ts withdrawn. The matter is remanded for funher 
proceedings consistent with the foregoing opinion and for the entry of a new decision. 
Cite as Mauer (~fS-H-L-, Inc., lD# l 009894 (AAO Mar. 13, 2018) 
1 The term "subsidiary" is defined, in relevant part, as an entity of which a parent owns, directly or indirectly, more than 
half of the entity and controls the entity. See 8 C.F .R. §§ 214.2(1)( 1 )(ii)(K). · 
3