remanded L-1A Case: Clothing Retail

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: SEPT. 23, 2024 In Re: 33672800 
Motion on Administrative Appeals Office Decision 
Form 1-129, Petition for a Nonimmigrant Worker (L-lA Manager or Executive) 
The Petitioner is a clothing retail business that filed this petition as a new office I seeking to employ 
the Beneficiary temporarily as "Director, Sales, Marketing, and Business Development" under the L­
lA nonimmigrant classification for intracompany transferees who are coming to be employed in the 
United States in a managerial or executive capacity. Immigration and Nationality Act (the Act) 
section 101(a)(15)(L), 8 U.S.C. § 1101(a)(15)(L). 
The Director of the California Service Center denied the petition, concluding that the record did not 
establish that: 1) the Petitioner has a qualifying relationship with the Beneficiary's foreign employer; 
2) the Beneficiary had been employed abroad in a managerial or executive capacity for at least one 
year in the three years prior to filing the instant petition; and 3) the Petitioner had secured sufficient 
physical premises to house its operation. The Director also determined that the Petitioner does not 
qualify for the new office designation based on evidence of its business activity in 2022, the year that 
preceded this petition's filing. We dismissed the subsequent appeal, concluding that the Petitioner did 
not provide sufficient evidence demonstrating that the Beneficiary's employment abroad was in a 
managerial capacity. 2 The matter is now before us on combined motions to reopen and reconsider. 3 
The Petitioner bears the burden of proof to demonstrate eligibility by a preponderance of the evidence. 
Matter ofChawathe, 25 I&N Dec. 369, 375-76 (AAO 2010). Upon de novo review, we will grant the 
motion and remand the matter for further proceedings. 
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(l)(l)(ii)(F). 
2 The Petitioner 's claim rests solely on the definition of managerial capacity. The Petitioner did not claim that the 
Beneficiary was employed in an executive capacity. 
3 A motion to reopen is based on factual grounds and must ( 1) state the new facts to be provided in the reopened proceeding; 
and (2) be supported by affidavits or other documentary evidence. 8 C.F.R. § 103.5(a)(2). A motion to reconsider must 
(1) state the reasons for reconsideration and establish that the decision was based on an incorrect application oflaw or U.S . 
Citizenship and Immigration Services (USCIS) policy, and (2) establish that the decision was incorrect based on the 
evidence in the record of proceedings at the time of the initial decision. 8 C.F.R. § l03.5(a)(3) . 
I. LAW 
To establish eligibility for the L-lA nonimmigrant visa classification, a qualifying organization must 
have employed the beneficiary in a managerial or executive capacity, or in a position requiring 
specialized knowledge 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)(1). The beneficiary must also be 
seeking 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. 8 C.F.R. 
§ 2 l 4.2(1)(3)(ii). 
Section 10l(a)(44)(A) of the Act, 8 U.S.C. § 110l(a)(44)(A), defines the term "managerial capacity" 
as an assignment within an organization in which the employee primarily: 
(i) manages the organization, or a department, subdivision, function, or component 
of the organization; 
(ii) supervises and controls the work of other supervisory, professional, or 
managerial employees, or manages an essential function within the 
organization, or a department or subdivision of the organization; 
(iii) if another employee or other employees are directly supervised, has the 
authority to hire and fire or recommend those as well as other personnel actions 
(such as promotion and leave authorization), or if no other employee is directly 
supervised, functions at a senior level within the organizational hierarchy or 
with respect to the function managed; and 
(iv) exercises discretion over the day-to-day operations of the activity or function 
for which the employee has authority. A first-line supervisor is not considered 
to be acting in a managerial capacity merely by virtue of the supervisor's 
supervisory duties unless the employees supervised are professional. 
In addition, a petitioner seeking approval of an L-lA new office petition 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 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. BASIS FOR REMAND 
As previously noted, we dismissed the appeal, focusing on the Beneficiary's employment abroad as 
the basis for our decision. We determined that although the Beneficiary's period of stay in the United 
States as a B-2 visitor for pleasure did not preclude the Beneficiary from meeting the foreign 
employment requirement, the record lacked sufficient evidence showing that the Beneficiary's 
position abroad was in a managerial capacity. We determined that the record before us on appeal 
indicated that the Beneficiary had no subordinates for 11 out of 13 months he spent working abroad. 
Because the Petitioner claimed that the Beneficiary was employed as a personnel manager, we 
concluded that the lack of a subordinate staff precluded the Beneficiary from meeting the provisions 
of section 10l(a)(44)(A)(ii) of the Act, which requires the Petitioner to establish that the Beneficiary 
supervised or controlled the work of other supervisory, professional, or managerial employees. Given 
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that our determination regarding the Beneficiary's foreign employment served as a dispositive issue, 
we dismissed the appeal and reserved the Petitioner's appellate arguments regarding the remaining 
grounds for denial. 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 ofL-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). 
On motion, the Petitioner addresses the deficiencies discussed in our prior decision, asserting that the 
evidence submitted in response to the request for evidence (RFE) did not reflect the staffing structure 
that existed when the Beneficiary was physically working abroad for the foreign entity since July 
2020. The Petitioner explains that the previously submitted evidence reflected an updated staffing 
structure that was implemented in August 2021, and that immediately prior to the staffing changes that 
took place in 2021 the Beneficiary managed a research and project development manager and a finance 
and purchasing manager. The Petitioner has provided the foreign entity's organizational charts for 
2020 and 2021 along with several emails discussing the staffing changes in question. The Petitioner 
has also provided employee job descriptions, pay slips, and performance evaluations, which show that 
the Beneficiary assumed the role of a personnel manager who managed professional subordinates 
during the time in question. 
In sum, the Petitioner has submitted evidence that adequately demonstrates that the Beneficiary was 
more likely than not working abroad foll-time in a managerial capacity for at least one year prior to 
this petition's date of filing. 
Accordingly, because the issue of the Beneficiary's employment abroad is no longer dispositive of the 
appeal, we will consider, as applicable, appellate arguments that were previously reserved. 
A. Qualifying Relationship 
First, we will address the Director's conclusion that the Petitioner provided inconsistent evidence 
concerning its ownership and that of the Beneficiary's foreign employer and therefore did not establish 
that a qualifying relationship exists between the two entities. 
To establish a "qualifying relationship," the record 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 
the entities are 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(l)(l)(ii) (providing definitions of the terms "parent," "branch," 
"subsidiary," and "affiliate"). 
The Petitioner claims that it and the Beneficiary's foreign employer are affiliates based on Mr.c=] 
,.______ __. majority ownership of both entities. See 8 C.F.R. § 214.2(l)(l)(ii)(L) (defining 
"affiliate"). The Petitioner has consistently maintained this claim and has submitted corroborating 
evidence pertaining to the respective ownership of each entity. Namely, the record includes the foreign 
entity's tax return listing I las owner of 100% of the foreign entity's stock. The record also 
includes the U.S. entity's operating agreement, its 2022 tax return, and a business plan, all three listing 
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Mr. as owner of 99.9% of the U.S. entity.4 Accordingly, the evidence 
demonstrates that Mr..__ ______ ____, is more likely than not majority owner of the Beneficiary's 
foreign employer and the petitioning entity, thereby leading us to conclude that the two entities have 
an affiliate relationship as originally claimed. We will therefore withdraw the Director's adverse 
determination concerning the issue of a qualifying relationship. 
B. New Office Designation 
Next, we will discuss the Director's determination that the Petitioner does not warrant the designation 
of a new office as defined at 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. 
The record shows that despite listing 2020 as the year it was established, the Petitioner filed the petition 
in May 2023 and responded "yes" in Section 10, No. 12 of the L Classification Supplement when 
asked if the beneficiary is coming to the United States to open a new office. In a supporting statement 
the Petitioner described itself as "an exclusive distributor of.__ _____ _.women's clothing and 
accessories," stating that it distributes merchandise "through online sales channels" and is "dedicating 
its efforts towards expanding coverage of the target market." The Petitioner also referred to its 
"ongoing operations" and discussed an e-commerce and marketing agreement that it executed in 2020 
for the purpose of engaging a third party to manage its "warehouse activities and online presence." 
In addition, the Petitioner provided evidence of a $100,000 owner contribution in March 2021 as well 
as a 2022 tax return and profit and loss statements showing claimed earnings from sales transactions 
in 2021 and 2022. More specifically, the 2021 profit and loss statement shows claimed earnings of 
$325,856.27, which more than doubled in 2022 according to the tax return and corresponding profit 
and loss statement for the same year. Both the 2022 tax return and corresponding profit and loss 
statement showed that the Petitioner collected $888,422 in gross receipts or sales and earned a "gross 
profit" of $646,039, listing online sales and wholesale transactions as the source of the earnings. 
After reviewing the initial evidence and the additional documents submitted in response to the RFE, 
the Director determined that the U.S. entity had been doing business for more than one year and 
therefore did not qualify as a new office under the pertinent regulations. Both in response to the RFE 
and on appeal, the Petitioner has maintained that it qualifies as a new office because it has had no 
employees from the time of its formation through the time this petition was filed. 
While we do not dispute the Petitioner's lack of employees, this information is not relevant for the 
purpose of determining whether the Petitioner meets the new office criteria, which applies exclusively 
to an entity that was not doing business in the year prior to filing a petition as a new office. See 
8 C.F .R. § 214.2(1)( 1 )(ii)(H) ( defining "doing business"). Here, despite the Petitioner's lack of 
employees, the record shows that it was engaged in online retail and wholesale transactions as far back 
4 We note that Section 1, No. 10 of the L Classification Supplement to Form 1-129 lists ._______ __. and Ms. 
I as owners of 99.9% and .1 % of the foreign entity, respectively. The supporting evidence, however, indicates 
that this ownership breakdown pertains to the Petitioner, rather than the foreign entity, which Mr. I I solely owns. 
Regardless, in both instances, the same individual is listed as owner of all or nearly all of each entity's ownership interest, 
thereby indicating that the enor in the L Classification Supplement was inadvertent and immaterial. 
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as 2021 and more than doubled its earnings by continuing to engage in ongoing sales transactions in 
2022. The Petitioner's claim that it executed an e-commerce and marketing agreement with a third 
party in 2020 further undermines the claim that it qualified as a new office in 2023, when this petition 
was filed. 
Accordingly, given the evidence presented, we agree that the Petitioner did not qualify as a new office 
under 8 C.F.R. § 214.2(1)(3)(v). However, despite concluding that the Petitioner does not qualify as a 
new office, the Director nevertheless contemplated whether the Petitioner had secured sufficient 
physical premises to house its business operation, an eligibility requirement that applies solely to new 
offices. See 8 C.F.R. § 214.2(1)(3)(v)(A). The Director's focus on this issue is therefore contrary to 
the determination that the Petitioner does not qualify as a new office as defined at 8 C.F.R. 
§ 214.2(l)(l)(ii)(F) and does not provide an adequate basis for the denial of the petition. As such, the 
Director's decision did not offer a complete analysis that adequately explained the deficiencies in the 
evidence. See 8 C.F.R. § 103.3(a)(l)(i); see also Matter of M-P-, 20 I&N Dec. 786 (BIA 1994) 
( finding that a decision must fully explain the reasons for denying a motion to allow the respondent a 
meaningful opportunity to challenge the determination on appeal). 
In light of the Director's deficient analysis, the denial must be withdrawn, and the record must be 
considered anew within the context of the requirements listed at 8 C.F.R. § 214.2(1)(3)(i)-(iv). Among 
those requirements, the Petitioner must demonstrate its ability to employ the Beneficiary in a 
managerial or executive capacity as of the date of filing. See 8 C.F.R. § 103.2(b)(l) (requiring that 
eligibility for the requested benefit be established based on facts and circumstances that existed at the 
time offiling the benefit request). The record as presently constituted does not demonstrate that this 
requirement has been met. Therefore, we will remand the matter to the Director for issuance of a new 
RFE so that the Petitioner has notice of any deficiencies and an opportunity to supplement the record. 
In sum, while it appears that the Beneficiary would not merit the L-lA nonimmigrant visa 
classification sought in this matter, the Director offered a deficient analysis. We will therefore 
withdraw the denial and remand the matter for further consideration and entry of a new decision. The 
Director should request any additional evidence warranted and allow the Petitioner to submit such 
evidence within a reasonable period. 
ORDER: The motion to reopen is granted and the matter remanded for the entry of a new decision 
consistent with the foregoing analysis. 
FURTHER ORDER: The motion to reconsider is granted and the matter remanded for the 
entry of a new decision consistent with the foregoing analysis. 
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