remanded L-1A Case: Heating Appliances

U.S. Citizenship 
and Immigration 
Services 
MATTER OF K- INC. 
Non-Precedent Decision of the 
Administrative Appeals Otlice 
DATE: JUNE 27, 2018 
APPEAL OF CALIFORNIA SERVICE CENTER DECISION 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, an importer and distributor of heating appliances, seeks to continue the Beneficiary's 
temporary employment as its chief executive officer (CEO) under the L-1A nonimmigrant 
classification for intracompany tiansferees.' See Immigration and Nationality Act (the Act) section 
!Ol(a)(15)(L), 8 U.S.C. § 1 101(a)(15)(L). TheL-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, determining that the Petitioner did 
not establish that its "new office m the United States would be able to support an executive or 
managerial position in one year." 
On appeal, the Petitioner contends that the Director erred by citing to regulations governing L-1 new 
office petitions, failed to review the entire record and, as a result, erroneously denied the petition. 
The Petitioner submits additional evidence and maintains that it will employ the Beneficiary in an 
executive capacity under the extended petition. 
Upon de novo review, we will withdraw the Director's decision and remand the matter for entry of a 
new decision. 
I. LEGAL FRAMEWORK 
To establish eligibility for the L-1A nonimmigrant visa classification, a qualifying organization must 
have employed the beneficiary in a managerial or executive capacity 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)(3)(v)(B). 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. !d. · 
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The Petitioner previously filed a ·'new office" petition on the Beneficiary's behalf which was approved for the period 
September 9, 2016, until September 8, 2017. A "new office" is 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(1)(i)(ii)(F). The 
regulation at 8 C.F.R. § 214.2(1)(3)(v)(C) allows a "new office" operation one year within the date of approval of the 
petition to support an executive or managerial position. 
Matter of K- Inc. 
A petitioner seeking to extend an L-lA petition that involved a new office must submit a statement 
of the beneficiary's duties during the previous year and under the extended petition; a statement 
describing the staffing of the new operation and evidence of the numbers and types of positions held; 
evidence of its financial status; evidence that it has been doing business for the previous year; and 
evidence that it maintains a qualifying relationship with the beneficiary's foreign employer. 
8 C.F.R. § 214.2(1)(14)(ii). 
Ih ANALYSIS 
The record shows that the Petitioner properly indicated on the Form 1-129, Petition for 
Nonimmigrant Worker, that it was seeking to continue the Beneficiary's employment in his current 
L-IA position, and that its prior petition on behalf of the Beneficiary was a new office petition 
approved for a one year period. The Petitioner also provided evidence showing that it had 
commenced business operations and hired up to 12 employees during the previous year. As such, 
the initial evidence showed that the Petitioner was seeking an extension of a petition involving a new 
office. 
Therefore, we agree with the Petitioner that the Director's decision improperly cited to the 
regulations applicable to an initial new office petition, rather than those applicable to a new office 
extension. Moreover, the decision repeatedly discusses whether the Petitioner established that it 
would be able to support a managerial or executive position "within one year," and notes that the 
Petitioner's "explanation of the proposed business lacks sufficient detail." These statements suggest 
that the Director adjudicated this petition as a new office and did not merely inadvertently cite to the 
incorrect regulations. 
When denying a petition, a director has an affirmative duty to explain the specific reasons for the 
denial; this duty includes informing a petitioner why the evidence did not to satisfy its burden of 
proof pursuant to section 291 of the Act. 8 C.F.R. § 103.3(a)(1 )(i). The numerous errors in the 
decision raise questions as to whether the Director properly reviewed the record in its entirety. 
Accordingly, we will withdraw the Director's decision. 
However, we find that the record as presently constituted contains insufficient evidence to show that 
the Petitioner would employ the Beneficiary in an executive capacity, as claimed. The job 
description the Petitioner provided, while quite lengthy, is repetitive, too broad, and docs not 
sufficiently describe the Beneficiary's actual day-to-day tasks within the context of the Petitioner's 
business. For example, the submitted description lists nearly 120 job duties but mentions the 
Beneficiary's responsibility for reviewing daily' reports from the Petitioner's CFO and department 
managers at least 50 times," and does not present a clear picture of what he would be doing on a daily 
basis. 
The record also lacks documentation of the Petitioner's stalling levels and structure as of the date of 
filing on September 8, 2017. The Petitioner stated on the Form 1-129 that it had 14 employees on 
that date, but it submitted an organizational chart that depicted 10 U.S. employees, and provided a 
state quarterly wage report that reported 9 employees in August 2017 and 12 employees as of 
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Matter of K- Inc. 
September 2017. In response to a request for evidence, the Petitioner indicated that there were some 
staffing changes during the first week of September 2017. As a result, the organizational chart 
provided with the petition was likely not an accurate representation of the Petitioner's staffing levels 
on the date of filing. 
The Petitioner must establish eligibility as of the date of filing, therefore, additional evidence is 
needed to establish exactly whom the company employed on September 8, 2017. In addition, the 
record lacks evidence of payments made to independent contractors who the Petitioner claims to pay 
by commission. Since the Petitioner claims that the commissioned sales representatives perform 
most of the company's sales functions, this evidence is critical. As this matter will be remanded, the 
Petitioner should be instructed to clarify its staffing levels and organizational structure, and 
document all claimed employees and contractors, and their employment dates, from the date of filing 
and beyond. 
We are remanding this matter so that the Director can properly make the initial determination on the. 
issue of the Beneficiary's proposed employment in an executive capacity after a thorough review 
and analysis of the Petitioner's evidence under the appropriate regulatory requirements at 8 C.F.R. 
§ 214.2(1)(14)(ii). The Director should request ahy additional evidence deemed warranted and allow 
the Petitioner to submit such evidence within a reasonable period of time . 
. ORDER: The matter is remanded for the entry of a new decision consistent with the foregoing 
analysis. 
·Cite as Matter of K-Ine., ID# 1335109 (AAO June 27, 2018) 
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