remanded L-1A Case: Dry Cleaning

o U.S. Citizenship 
"' and Immigration 
Services 
MATTER OF N-T-USA, INC. 
APPEAL OF VERMONT SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: SEPT. 7, 2016 
PETITION: FORM 1-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a Texas corporation, is looking to open and operate a dry cleaning business. 
Accordingly, the Petitioner seeks to temporarily employ the Beneficiary as an "Accountant/General 
Manager" of its new office under the L-IA 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-1 A 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 
Petitioner did not submit sufficient evidence to establish that the Beneficiary has been or would be 
employed in a managerial or executive capacity. The Petitioner subsequently filed a motion to 
reopen and reconsider. The Director reviewed the Petitioner's submissions and affirmed the original 
decision, finding that the Petitioner did not overcome the original basis for denial. 
The matter is now before us on appeal. In its appeal, the Petitioner submits additional evidence and 
asserts that the Dire~tor did not properly assess the supporting documents, which the Petitioner 
claims substantiate the claim that the Beneficiary would be employed in an executive capacity. 
Upon de novo review, we will withdraw the Director's decision and remand the matter to the 
Director for entry of a new decision. 
I. LEGAL FRAMEWORK 
To establish eligibility for the L-1 nonimmigrant visa classification, a qualifying organization must 
have employed the Beneficiary in a managerial or .executive capacity, or in a specialized knowledge 
capacity, for one continuous year within three years preceding the Beneficiary's application for 
admission into the United States. Section 1 01 (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, executive, or specialized knowledge 
capacity. !d. 
Matter of N-T- USA, Inc. 
The regulation at 8 C.P.R. § 214.2(1)(3) states that an individual petition filed on Form 1-129, 
Petition for a Nonimmigrant Worker, shall be accompanied by: -" 
(i) 
(ii) 
(iii) 
(iv) 
Evidence that the petitioner and the organization which employed or will 
employ the alien are qualifying organizations as defined in paragraph 
(l)(l)(ii)(G) ofthis section. 
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. 
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 filing of the petition. 
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. 
In addition, the regulation at 8 C.P.R. § 214.2(1)(3)(v) states that if the petition indicates that the 
beneficiary is corning to the United States as a manager or executive to open or to be employed in a 
new office, the petitioner shall submit evidence that: 
(A) Sufficient physical premises to house the new office have been secured; 
(B) The beneficiary has been employed for one continuous year in the three year 
period preceding the filing of the petition in an executive or managerial 
capacity and that the proposed employment involved executive or managerial 
authority over the new operation; and 
(C) The intended United States operation, within one year of the approval of the 
petition, will support an executive or managerial position as defined in 
paragraphs (l)(l)(ii)(B) or (C) of this section, supported by information 
regarding: 
(1) The proposed nature of the office describing the scope of the entity, its 
organizational structure, and its financial goals; 
(2) The size of the United States investment and the financial ability of the 
foreign entity to remunerate the beneficiary and to commence doing 
business in the United States; and 
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Matter of N-T-USA, Inc. 
(3) The organizational structure of the foreign entity. 
II. EMPLOYMENT IN A MANAGERIAL OR EXECUTIVE CAPACITY 
The Director denied the petition based on the finding that the Petitioner did not establish that the 
Beneficiary "has been and would be employed in a primarily executive or managerial capacity or 
that your organization can currently support such a position." 
Section 101(a)(44)(A) of the Act, 8 U.S.C. § 1101(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) ~xercises 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. 
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. 
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Matter of N-T- USA, Inc. 
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) ofthe Act. 
In the instant matter, the Petitioner indicated at Section 1, Item 5 of the Form 1-129 Supplement L 
that the Beneficiary has been employed abroad since January 2011 and continued to be employed 
abroad through the date the petition was filed. This information is consistent with the foreign 
entity's employee report, which identifies the Beneficiary as the foreign entity's accountant and 
indicates that he is currently employed abroad with that organization. Section 1, Item 12 of the 
Form 1-129 Supplement L indicated that the Beneficiary is coming to the United States to open a 
new office. In support of the petition, the Petitioner provided a job description for the Beneficiary's 
current position with the foreign entity as well as a description of the Beneficiary's proposed 
employment. The Petitioner also submitted a business plan discussing its hiring plan, as well as its 
expense and revenue projections during its first three years of operation. The Petitioner's supporting 
exhibits further included the foreign entity's organizational chart and a proposed organizational chart 
for the U.S. organization, showing the entities' respective hierarchical structures. 
Upon review, we find that the Director's decision did not clearly articulate the grounds for denial. 
Therefore, the Director's decision dated October 13, 2015, will be withdrawn and the matter will be 
remanded to the Director for further review and issuance of a new decision. 
In her decision on the Petitioner's motion, the Director found that the Beneficiary has not been and 
will not be employed in a managerial or executive, capacity. However, throughout the analysis the 
Director focused solely on the evidence presented for the Beneficiary's proposed employment in the 
United States. The Director did not address or discuss the Beneficiary's foreign employment, but 
nonetheless concluded that the Beneficiary has not been employed abroad in a managerial or 
executive capacity. 
Furthermore, despite the Petitioner's claim and submission of supporting documents, all of which 
indicate that the Beneficiary would be coming to the United States to open the new office, the 
Director's analysis does not examine the proposed position in light of the new office regulations. 
The Director did not address the Petitioner's busi,ness plan and proposed organizational chart, or 
provide an analysis of the proposed position description within the scope of either document to 
determine whether the Petitioner provided sufficient evidence to establish that it would support the 
Beneficiary in a managerial or executive position within one year of the petition's approval. 
Therefore, we find that the Director's decision was deficient in that the Director did not address the 
Beneficiary's duties abroad or provide an analysis of his proposed duties in the United States within 
the scope of a new office petition, nor did the Director identify how the evidence provided falls short 
of demonstrating that the Beneficiary has been or will be employed in a managerial or executive 
capacity. As the Director provided an unclear discussion of the Beneficiary's current and proposed 
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Matter of N-T- USA, Inc. 
employment and an incomplete analysis of the evidence presented in support of this petition, we are 
remanding this matter to the Director for a new and complete decision. 
Notwithstanding the Director's deficient analysis, we note that the record as presently constituted 
does not establish that the Beneficiary was employed abroad in a managerial or executive capacity or 
that within one year of the petition's approval he will be employed in the United States in an 
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executive capacity. 
When examining the managerial or executive capacity of the Beneficiary, we look first to the 
Petitioner's description of the job duties. See 8 C.F.R. § 214.2(1)(3)(ii). The Petitioner's description 
of the job duties must clearly describe the duties performed by the Beneficiary and indicate whether 
such duties are in a managerial or executive capacity. !d. The definitions of ~anagerial and 
executive capacity each have two parts. First, the Petitioner must show that the Beneficiary 
performs and will perform certain high-level responsibilities. Champion World, Inc. v. INS, 940 
F.2d 1533 (9th Cit. 1991) (unpublished table decision). Second, the Petitioner must prove that the 
Beneficiary is and will be primarily engaged in m~nagerial 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. 
Beyond the required description of the job duties, U.S. Citizenship and Immigration Services 
(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. 
Regarding the Beneficiary's foreign employment, the information provided is not sufficient to 
establish that the Beneficiary was employed abroad in a managerial or executive capacity. The 
Petitioner provided a description of the Beneficiary's duties and responsibilities in his current 
position with the foreign entity in its response to the Director's request for evidence. According to 
the description provided in the RFE response, the Beneficiary's position as the foreign entity's 
accountant includes preparing and reconciling financial statements, handling the company's general 
ledger and balance sheet and analyzing its statement of income, and "closing the company's books at 
year's end after yearly audits are complete." These non-qualifying job duties indicate that the 
Beneficiary provides accounting services· to its current employer. An employee who "primarily" 
performs the tasks necessary to produce a product or to provide services is not considered to be 
"primarily" employed in a managerial or executive capacity. See also, sections 101 (a)( 44)(A) and 
(B) of the Act (requiring that one "primarily" perform the enumerated managerial or executive 
duties); Matter of Church Scientology International, 19 I&N Dec. 593, 604 (Comm'r 1988). 
Moreover, it is unclear who currently carries out the "accounting processes," such as the inventory 
1 The Petitioner does not claim that the Beneficiary will be employed in a managerial capacity. Therefore, going forward 
the analysis may be restricted to whether the Beneficiary will be employed in an executive capacity. 
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Matter of N-T- USA, Inc. 
process and purchase order management, and who executes the company's annual audits, which are 
directly related to the Beneficiary's responsibility to "close the company's books." Without such 
information, it is unclear whether the foreign entity has sufficient staff to perform these duties and 
support the Beneficiary in a managerial or executive role. 
Finally, although the job description indicates that the Beneficiary has the discretionary authority to 
hire, promote, and dismiss employees; the foreign entity's organizational chart indicates that the 
Beneficiary's only direct subordinate is a finance manager, who is charged with oNerseeing two 
finance assistants, three sales people, and one computer operator. It is unclear whom the Beneficiary 
hires and fires or how his position as an accountant is related to these lower-level positions, which 
are directly subordinate to the foreign entity's finance manager. ' 
Concerning the proposed U.S. employment, the evidence of record does not corroborate the claim 
that the Petitioner would support the Beneficiary in an executive capacity within one year of the 
petition's approval. When a new business is established and commences operations, the regulations 
recognize that a designated manager or executive responsible for setting up operations will be 
engaged in a variety of activities not normally performed by employees at the executive or 
managerial level and that often the full range of managerial responsibility cannot be performed. In 
order to qualify for L-1 nonimmigrant classification during the first year of operations, the 
regulations require the petitioner to disclose the business plans and the size of the United States 
investment, and thereby establish that the proposed enterprise will support an executive or 
managerial position within one year of the approval ofthe petition. See 8 C.F.R. § 214.2(1)(3)(v)(C). 
This evidence should demonstrate a realistic expectation that the enterprise will succeed and rapidly 
expand as it moves away from the developmental stage to full operations, where there would be an 
actual need for a manager or executive who will primarily perform qualifying duties. While the 
Director incorrectly focused on whether the Petitioner could currently support the Beneficiary in an 
executive position, we note that the proposed duties provided by the Petitioner on the Form I-129 
Supplement L, including reviewing end-of-the-month financial statements, conducting expense and 
revenue analysis, and performing cash management, appear to be largely non-qualifying operational 
tasks. Although the Beneficiary may, perform these non-qualifying tasks in the first year, the 
Petitioner must demonstrate that the Beneficiary would be relieved from primarily performing 
operational tasks within one year of approval. The Petitioner has not explained who these non­
qualifying duties would be transitioned to, or provided evidence that there would be sufficient staff 
at the end of the new office period, to allow the Beneficiary to primarily devote his time to 
performing executive duties. 
Further, the Petitioner's business plan does not substantiate the claim that the Petitioner would 
support 'the Beneficiary in an executive capacity within one year ofthe petition's approval. Namely, 
the Petitioner provided inconsistent information pertaining to the initial investment that will be used 
to fund its operation and did not provide sufficient evidence to substantiate the claim that it would 
act as a dry cleaning and alterations service provider. With regard to the issue of start-up funding, 
the Petitioner indicated that it would need $50,000 in initial start-up funding, claiming that the 
company owner would contribute $20,000 and that an additional $40,000 would be in the form of a 
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Matter of N-T-USA, Inc. 
bank loan to be secured by "fixed assets." Aside from the fact that the sum of the investor 
contribution and. bank loan exceeds $50,000 by $10,000, the Petitioner does not provide evidence to 
establish that steps have been taken towards obtaining a bank loan or explain how it plans to secure 
that loan. While section 2.2 of the Petitioner's business plan only refers to "long-term assets," the 
plan does not specify what those assets actually are. In section 7.1 of the business plan, the 
Petitioner claims that one of its owners would contribute $25,000 while another owner would 
contribute $15,000, thus indicating that a total of $40,000 would be provided in investment 
contributions . .These financial figures are inconsistent with the above claim, which indicates that the 
Petitioner's start-up funding would be comprised of one investor's contribution and a bank loan. As 
such, the Petitioner has not established precisely how much money it would need for the start-up of 
its operation, the amount of money it would actually receive, and who _would actually be the source 
of the start-up funds. Further, in reviewing the Petitioner's liabilities, the Petitioner did not account 
for a $40,000 bank loan it planned to obtain to help with its initial start-up expenses. The Petitioner 
has not resolved these inconsistencies with independent, objective evidence pointing to where the 
truth lies. See Matter ofHo, 19 I&N Dec. 582,591-92 (BIA 1988). 
Regarding the issue of the Petitioner's dry-cleaning and alterations service, the Petitioner did not 
provide any evidence or information to establish who will provide the alterations service it claims it 
would offer to its customers. Despite the claim that it would attain $22,729 in income from the 
provision of alterations services, the Petitioner's hiring plan does not include personnel who would 
perform alterations services, nor does its plan to lease and purchase equipment include any plan to 
acquire sewing machines or any other equipment and/or supplies needed to perform alterations. The 
Petitioner also did not explain how it would physically provide alterations services within the scope 
of its delivery-based dry cleaning business~ which would not include a retail facility. In other words, 
it is unclear where customer fittings and alterations would ·actually take place if the dry cleaning 
business would be entirely completed on a delivery basis, as the Petitioner claims. If USCIS finds 
reason to believe that an assertion stated in the petition is not true, USCIS may reject that assertion. 
See, e.g., Section 204(b) ofthe Act, 8 U.S.C. § 1154(b); Anetekhai v. INS, 876 F.2d 1218, 1220 (5th 
Cir. 1989); Lu-Ann Bakery Shop, Inc. v. Nelson, 705 F. Supp. 7, 10 (D.D.C. 1988); Systronics Corp. 
v. INS, 153 F. Supp. 2d 7, 15 (D.D.C. 2001). 
By remanding this matter, we do not find that the Beneficiary is eligible for the classification sought. 
Rather, we remand the matter because the Director denied the petition without: 1) considering the 
Beneficiary's foreign job duties; 2) without considering the proposed job dutie~ within the proper 
scope of a new office petition; and 3) without analyzing the Petitioner's business plan. Absent 
proper consideration of these factors, the Director's analysis is incomplete. In any further decision, 
. the Director should distinguish between factors that pertain to the Beneficiary's employment abroad 
and those concerning his proposed employment in the United States within the scope of a new 
office. 
(b)(6)
Matter of N-T- USA, Inc. 
III. QUALIFYING RELATIONSHIP 
Beyond the issues identified by the Director, we also find that the record lacks sufficient consistent 
evidence establishing that a qualifying relationship exists between the Petitioner and the 
Beneficiary's current employer abroad. The regulation and case law confirm that ownership and 
control are·the factors that must be examined in determining whether a qualifying relationship exists 
between United States and foreign entities for purposes of this visa classification. See Matter of 
Church Scientology International, 19 I&N Dec. 593 (Comm'r 1988); see also Matter ofSiemens 
Medical Systems, Inc., 19 I&N Dec. 362 (Comm'r 1986); Matter of Hughes, 18 I&N Dec. 289 . / 
(Comm'r 1982). 
In ~he present matter, the Petitioner provided inconsistent evidence regarding its ownership. 
Namely, the Petitioner provided its stock certificate numbers 1000, 1001, and 1002 assigning 37,000 
shares to 7500 shares to and 5000 shares to 
respectively. However, the ownership breakdown that is conveyed through the stock certificates is 
inconsistent with the Form I-129, where the Petitioner claimed to be a branch of the foreign entity 
and indicated that its ownership is evenly divided between and 
As with the other discrepancies discussed above, the Petitioner has not resolved these inconsistencies 
regarding its ownership with independent, objective evidence pointing to where the truth lies. See 
Matter of Ho, 19 I&N Dec. at 591-92. In any future action, the Director should instruct the 
Petitioner to resolve the above described discrepancies and provide consistent ~vidence to establish 
that it has a qualifying relationship with the Beneficiary's employer abroad. 
IV. CONCLUSION 
We will remand this matter to the Director for a new decision. The Director shall request any 
additional evidence deemed warranted and allow the Petitioner to submit such evidence within a 
reasonable period of time. 
In visa petition proceedings, it is the petitioner's burden to establish eligibility for the immigration 
benefit sought. Section 291 ofthe Act, 8 U.S.C. § 1361; Matter ofOtiende, 26 I&N Dec. 127, 128 
(BIA 2013). 
ORDER: The decision of the Director, Vermont Service Center, is withdrawn. The matter is 
remanded. to the Director, Vermont Service Center, for further proceedings consistent 
with the foregoing opinion and for the entry of a new decision. 
Cite as Matter of N-T-USA, Inc., ID# 18191 (AAO Sept. 7, 2016) 
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