remanded L-1A Case: Hospice Health Services

U.S. Citizenship 
and Immigration 
Services 
MATTER OF A&LH-S-, INC. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: DEC. 12, 2017 
APPEAL OF CALIFORNIA SERVICE CENTER DECISION 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a provider of hospice health services, seeks to temporarily employ the Beneficiary as 
its "CEO'' under the L-1 A nonimmigrant classification for intracompany transferees. See 
Immigration and Nationality Act (the Act) section 101(a)(l5)(L), 8 U.S.C. § 1101(a)(15)(L). The 
L-1A 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 it has a qualifying relationship with the Beneficiary's employer abroad 
or that the Beneficiary was employed abroad in a managerial or executive capacity. 
The matter is now before us on appeal. The Petitioner disputes the denial and submits a brief 
addressing the Director's findings. Regarding the issue of a qualifying relationship, the record 
contains evidence to show that the Beneficiary owns 100% of the foreign employer and that he owns 
50% of the Petitioner. The Petitioner contends that this ownership scheme demonstrates that the 
Beneficiary has common ownership and control of both entities. We agree and find that the 
Director's determination to the contrary was incorrect. 
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)(15)(L) ofthe Act; 8 C.F.R. § 214.2(1). The term ·•affiliate" 
is defined in relevant part, as (1) 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)(1)(ii)(K). While the Petitioner acknowledges that the Beneficiary 
does not own the majority of its stock, his 50% ownership coupled with his negative control of the 
entity are sufficient to establish that the Beneficiary owns and controls that entity and that this 
ownership scheme is sufficiently similar to that of the foreign entity such that an affiliate 
relationship exists between the two entities. 
Matter of A&LH-S-, Inc. 
Next, regarding the Beneficiary's employment abroad, the record contains the Beneficiary's job 
description and the foreign entity's organizational chart depicting the Beneficiary in the top-most 
position of the organizational hierarchy. The Petitioner also clarities an ambiguity regarding the 
number of employees claimed by the foreign entity, noting that the foreign entity's organizational 
chart depicts the contract labor it used along with a 14-person in-house staff. The Petitioner also 
points to previously submitted evidence of salaries and wages paid by the foreign entity in 2016. 
Upon de novo review, we find that the Petitioner has provided sufficient evidence to overcome the 
grounds for denial and we will therefore withdraw the Director's decision. 
Notwithstanding our favorable determination with regard to the two cited grounds for denial, we find 
that this petition is not approvable because the Petitioner has not provided sufficient evidence to 
establish, as required, that the Beneficiary would be employed in the United States in a managerial 
or executive capacity. 
When examining the managerial or executive capacity of the Beneficiary, we first look to the 
Petitioner's description of the job duties. The Petitioner's description of the job duties must clearly 
describe the duties to be performed by the Beneficiary and indicate whether such duties are in a 
managerial or executive capacity. See 8 C.F.R. § 214.2(1)(3 )(ii). 
Further, U.S. Citizenship and Immigration Services reviews the totality of the record when 
examining a beneficiary's claimed managerial or executive capacity, 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. 
In the present matter, the Petitioner provided a vague job description that focused primarily on the 
Beneficiary's elevated position within its organizational hierarchy and his discretionary authority to 
make business decisions. Further, while the Petitioner provided an organizational chart which 
consistently depicted the Beneficiary at the top-most position within the organization, the Internal 
Revenue Service Form W-2s that were issued to the employees who were named in the chart showed 
that most of the employees did not earn wages that were commensurate with those of full-time 
employees. As the Director's request for evidence focused exclusively on the issues of qualifying 
relationship and the Beneficiary's employment abroad, the Petitioner did not provide any further 
evidence regarding the Beneficiary's proposed employment in the United States. 
Based on the statutory definitions of managerial and executive capacity, the Petitioner must first 
show that the Beneficiary will perform certain high-level responsibilities. Champion World. Inc. v. 
INS, 940 F.2d 1533 (9th Cir. 1991) (unpublished table decision). Second, the Petitioner must prove 
that the Beneficiary will be primarily engaged in managerial 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. 
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Matter of A&LH-S-, Inc. 
We find that the record as presently constituted lacks sufficient evidence to establish that the 
Petitioner was able to relieve the Beneficiary from having to allocate his time primarily to the 
operational and otherwise non-qualifying tasks of its organization at the time the petition was filed. 
Therefore, we cannot conclude that the Beneficiary would primarily perform managerial or 
executive tasks in his proposed position as CEO of the U.S. entity. 
In light of the above, we 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 determine the Petitioner's eligibility and allow the Petitioner to submit such 
evidence within a reasonable period of time. 
ORDER: The decision of the Director is withdrawn. The matter is remanded for further 
proceedings consistent with the foregoing opinion and for the entry of a new decision. 
Cite as Matter of A&LH-S-, Inc., ID# 845334 (AAO Dec. 12, 2017) 
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