remanded L-1A Case: Computer Engineering

MATTER OF A-, INC. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DA TE: NOV. 23, 201_8 
APPEAL OF CALIFORNIA SERVICE CENTER DECISION 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a designer of expandable and energy-efficient computer processors and related 
technologies, seeks to temporarily employ the Beneficiary as a ··staff design engineer" under the L-1 A 
nonimmigrant classification for intracompany transferees. See Immigration and Nationality Act (the 
Act) section I0I(a)(l5)(L), 8 U.S.C. § 1 IOI(a)(15)(L). The L-IA 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 establish, as required, that the Beneficiary was employed abroad and would be employed in the 
United States in a managerial capacity. The Director found that the Petitioner did not provide an 
adequate job description demonstrating that the Beneficiary would be relieved from having to 
primarily perform non-managerial job duties. 
On appeal, the Petitioner contends that the Director's decision is factually incorrect pointing to 
previously submitted evidence regarding the Beneficiary's foreign and proposed job duties and his 
organizational placement with regard to lower-level staff engineers who carried and would carry out 
the operational tasks pertaining to a critical function within the organization. The Petitioner also 
provided a description of the staff engineering tier structure within its multinational organization, 
thereby demonstrating that the Beneficiary has and would continue to carry out primarily managerial 
tasks that are consistent with his top-level placement with respect to a key function. 
Upon de novo review of the totality of the evidence, we find that the Petitioner has submitted 
sufficient evidence to establish that it is more likely than not that the Beneficiary was and would be 
employed in a manager.ial capacity. 
Notwithstanding our withdrawal of the Director's decision, we find that the record as presently 
constituted contains anomalies and inconsistencies regarding the duration of the Beneficiary's 
foreign employment in a managerial capacity. As a result of such anomalies we find that the 
Petitioner has not established that the Beneficiary has· the requisite period of employment abroad in a 
managerial capacity. As such, we will remand the matter for further consideration. 
Maller of A-, Inc. 
I. LEGAL FRAMEWORK 
To establish eligibility for the L-IA nonimmigrant visa classification, a qualifying organization must 
have employed the beneficiary "in a capacity that is managerial, executive, or involves specialized 
knowledge," for one continuous year within three years preceding the beneficiary's application for 
admission into the United States. Section 101(a)(15)(L)-of the Act. 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. 
According to the regulations, a beneficiary must have "one continuous year of full-time employment 
abroad with a qualifying organization within the three years preceding the filing of the petition." 
8 C.F.R. § 214.2(1)(3)(iii). . 
The term "intracompany transferee" is defined as: 
An alien who, within three years preceding the time of his or her application for 
admission into the United States, has been employed abroad continuously for one 
year by a firm or corporation or other legal entity or parent, branch, affiliate or 
subsidiary thereof, and who seeks to enter the United States temporarily in order to 
render his or her services to a branch of the same employer or a parent, affiliate, or 
subsidiary thereof in a capacity that is managerial, executive or involves specialized 
knowledge. Periods spent in the United States in lawful status for a branch of the 
same employer or a parent, affiliate, or subsidiary thereof and brief trips to the 
United States for business or pleasure shall not be interruptive of the one year of 
continuous employment abroad but such periods shall not be counted toward 
fulfillment of that requirement. 
8 C.F.R. § 214.2(1)(l)(ii)(A). 
II. BASIS FOR REMAND 
As previously noted, we find that the Petitioner has not provided sufficient evidence establishing that 
the Beneficiary was employed abroad for one year out of the three years prior to his March 2015 
entry to the United States to work for the U.S. entity. 
In the petition form, the Petitioner stated that the· Beneficiary was employed with the foreign entity 
from ·November 22, 2010, through March 15, 2015; it indicated that the Beneficiary had several brief 
assignments in the United States, but that his absences during those assignments were not 
interruptive of his period of employment abroad. In a supporting statement, the Petitioner explained 
the Beneficiary's period of qualifying employment in greater detail stating that the Beneficiary "held 
the managerial position of Staff Design Engineer managing two crucial projects" from January 2014 
to March 2015. Although the Beneficiary was employed by the foreign since prior to January 2014, 
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Matter of A-, Inc. 
his claimed period of foreign employment in a managerial position was for a total of one year and 
three months. 
In a request for evidence (RFE), the Director discussed information in the Beneficiary's travel 
records and asked the Petitioner to provide further documentation establishing that the Beneficiary 
has the requisite period of employment abroad. In response, the Petitioner provided a statement 
containing an altered claim regarding the time period abroad that the Beneficiary spent working in a 
managerial capacity. Namely, the Petitioner claimed that the Beneficiary was employed abroad as a 
function manager from October 2013 to February 2015 and that during that 17-month period the 
Beneficiary spent five months, from February 5 until July 31, 20 I 4, working for the petitioning 
entity in the United States. The Petitioner estimated the absence as totaling five months and stated 
that an absence of such duration does not preclude the Beneficiary from meeting the one-year 
statutory requirement because the Beneficiary was physically present overseas in a managerial" 
position for a period of 12 months, despite the five-month absence. The Petitioner provided the 
Beneficiary's pay stubs from January 2013 through February 2014 to support the claim that the 
Beneficiary was employed abroad during the required time period. 
We find, however, that the Petitioner did not accurately calculate the total number of days of the 
Beneficiary's absence and submitted insufficient evidence to support its altered claim. First, we note 
that the Beneficiary's absence exceeds the claimed five-month period by 26 days, bringing the total 
time absent to five months and 26 days, rather than an even five months. This error is critical to the 
Petitioner's altered claim, which is premised on the Beneficiary having a total of 17 months of 
employment in a managerial position and does not allow for an absence that exceeds five months. 
An absence of five months and 26 days means that even if, arguendo, the Beneficiary assumed a 
managerial position with the foreign entity in October 2013, he could not have been employed 
abroad for a full 12-month period as required. 
Furthermore, the Petitioner's new claim that the Beneficiary's period of managerial employment 
with the foreign entity commenced in October 2013 is inconsistent with the original claim that the 
Beneficiary did not assume his managerial position until January 2014. The Petitioner must support 
its assertions with relevant, probative, and credible evidence. See Maller <?lChawathe, 25 l&N Dec. 
369, 376 (AAO 2010). Moreover, the Petitioner must resolve 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). Although the Petitioner has provided paystubs establishing that the Beneficiary 
was employed with the foreign entity since prior to October 2013, such evidence does not support 
the altered claim that the Beneficiary's foreign employment in a managerial capacity commenced in 
October 2013. In fact, the paystubs show a significate rise in the Beneficiary's pay from 2013, when 
his monthly compensation averaged approximately Rs 116,000, to January 2014, when his monthly 
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Matter of A-, Inc. 
compensation rose to approximately Rs 142,000.1 This significant rise in the Beneficiary's monthly 
salary in January 2014 is consistent with its original claim that the Beneficiary assumed a managerial 
position with the foreign entity in January 2014. 
We note that the purpose of the RFE is to elicit further information that clarifies whether eligibility 
for the benefit sought has been established. 8 C.F.R. § 103.2(b)(8). When responding to an RFE, a 
petitioner may not make material changes to a petition in an effort to make a deficient petition 
conform to statutory requirements. See Maller(?{ Izummi, 22 I&N Dec. 169, 176 (Assoc. Comm'r 
1998). In the present matter, the Petitioner did not provide evidence to support its altered claim that 
the Beneficiary's managerial employment with the foreign. entity commenced in October 2013. 
Rather, it appears that the Beneficiary assumed his managerial position abroad in January 2014 and 
maintained that position until March 2015. Taking into account the Beneficiary's physical absence 
from his foreign position for a period of five months and 26 days, we cannot conclude that the 
Beneficiary meets the one-year foreign employment requirement. 
ORDER: The decision of the Director is withdrawn. The matter is remanded for entry of a new 
decision consistent with the foregoing analysis. 
Cite as Matter qf A-, Inc., ID# 1792795 (AAO Nov. 23, 2018) 
1 The Petitioner provided pay stubs from January 2013 through February 2014; the February 2013 and February 2014 
pay stubs show that the Beneficiary received bonuses that significantly raised the total monthly compensation for each of 
those months. While we acknowledge that the Beneficiary received what appear to be annual bonus disbursements 
issued in the month of February, such bonuses do not appear to part of the Beneficiary's average monthly salary. 
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