remanded L-1A Case: Import

U.S. Citizenship 
and Immigration 
Services 
In Re: 3322388 
Appeal of Texas Service Center Decision 
Form I-129, Petition for Nonimmigrant Worker (L-lA) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: DEC. 12, 2019 
The Petitioner, describing itself as an import company, seeks to temporarily employ the Beneficiary as 
its vice president in the United States under the L-lA nonimmigrant classification for intracompany 
transferees. See Immigration and Nationality Act (the Act) section 101(a)(15)(L), 8 U.S.C. 
§ 1 l01(a)(15)(L). 
The Director of the Texas Service Center denied the petition on multiple grounds, concluding the 
Petitioner did not establish that: (1) the Beneficiary's former foreign employer was doing business; 
(2) the Beneficiary was employed abroad for one continuous year in the three preceding his entry into 
the United States as a nonimmigrant; and (3) the Beneficiary would be employed in a managerial or 
executive capacity in the United States. In addition, the Director stated that they had made "a finding 
of fraud and misrepresentation because the petitioner has not submitted evidence to overcome the 
derogatory information [referenced by the Director in a Notice oflntent to Deny (NOID)]." 
On appeal, the Petitioner contends that the Director erred in assessing the submitted evidence. The 
Petitioner states that the Director improperly focused on evidence of its operations in the United States 
when concluding that the foreign employer was not doing business. Further, the Petitioner points to 
pay records and a foreign employer support letter and asserts that this demonstrates that the 
Beneficiary was employed abroad in a managerial or executive capacity for one continuous year during 
the three year period prior to her entry into the United States. The Petitioner also contends that the 
Director determined that the Beneficiary would not act as a manager or executive in the United States 
without properly analyzing the evidence. 
Upon de nova review, we agree with the Petitioner that the Director did not sufficiently analyze the 
submitted evidence in its denial decision; therefore, we will withdraw the decision and remand it for 
the entry of a new decision. Notwithstanding our withdrawal of the Director's decision, we find that 
the record as presently constituted contains anomalies and inconsistencies regarding whether: (1) the 
foreign employer is doing business; (2) the Beneficiary was employed abroad for one continuous year 
in the three preceding her entry into the United States; and (3) the Beneficiary would be employed in 
a managerial or executive capacity in the United States. As such, we will remand the matter for further 
consideration consistent with this decision. 
I. LAW 
To establish eligibility for the L-lA 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. The petitioner 
must also establish that the beneficiary's prior education, training, and employment qualify him or her 
to perform the intended services in the United States. 8 C.F.R. § 214.2(1)(3). 
II. BASES FOR REMAND 
As discussed, the Director of the Texas Service Center denied the petition on multiple grounds and 
concluded that the Petitioner had committed fraud and misrepresentation; however, with respect to 
each ground of denial, we conclude that the Director did not provide sufficient analysis. 
A. Doing Business 
In concluding that the Beneficiary's former foreign employer was not doing business consistent with 
the regulations, the Director focused on an internet search and stated that "[United States Citizenship 
and Immigration Services (USCIS)] was unable to locate a website for the entity." Further, the 
Director pointed to a U.S. DeP.artment of State memorandum and a site visit conducted in 2015 to the 
Petitioner's asserted office in I IN ew York and concluded that it "was not doing business in 
the United States." Likewise, the Director rejected a submitted Petitioner lease agreement and tax 
records from 2017 stating that "the visa was originally obtained by submitting falsified 
documentation." 
We find the reasoning of the Director insufficient with respect to whether the foreign employer was, 
and is, doing business. For instance, the Director referred the lack of a website; however, it is not 
clear whether this was in reference to the Petitioner or the foreign employer, and the decision did not 
explain why this demonstrates that the foreign employer was not doing business as of the date the 
petition was filed. Likewise, the Director also refers to the Petitioner's lease agreement, tax 
documentation, and a site visit conducted to its office in 2015. However, it is not clear how this 
evidence is relevant to the foreign employer's business operations. In fact, in the denial decision, the 
Director listed submitted evidence relevant to the foreign employer's operations such as contracts, 
invoices, shipping documentation, purchase orders and other such documentation relevant to the 
foreign employer, but does not discuss this documentation when analyzing whether the foreign 
employer was doing business as of the date the petition was filed. 
As such, we remand this issue for consideration of the evidence relevant to the foreign employer's 
operations to determine whether the foreign employer was doing business in a regular, systematic, and 
continuous fashion. 8 C.F.R. § 214.2(1)(14)(ii)(A) and 8 C.F.R. § 214.2(l)(l)(ii)(H). 
B. Employment Abroad 
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Furthermore, the Director determined that the Petitioner did not establish that the Beneficiary had been 
employed for one continuous year in the three preceding her entry into the United States as a 
nonimmigrant. In making this conclusion, the Director pointed to a previous Form 1-140, Immigrant 
Petition for an Alien Worker, that had been denied "due to fraud" and indicated that a 2012 foreign 
payroll roster and payment certificates appeared to be a "false representation because the evidence of 
the record does not show that the payment certificates are authentic." Upon review, we conclude that 
the Director's analysis of this issue lacks sufficient explanation. For instance, although we 
acknowledge that the Petitioner did have a previous Form 1-140 petition denied for fraud and a Form 
1-129 petition revoked, the Director did not sufficiently explain why this led to the specific conclusion 
in this matter that the Beneficiary's foreign payroll documentation was not "authentic." 
Therefore, we remand this issue to the Director for reconsideration and a fuller explanation as to 
whether the Petitioner established that the Beneficiary was employed for one continuous year in the 
three preceding her entry into the United States as a nonimmigrant. 
C. Employment in the United States 
Likewise, in concluding the Beneficiary would not act in a managerial or executive capacity in the 
United States, the Director did not provide any explanation for his decision. The Director did not 
provide sufficient analysis in making this conclusion, such as a discussion of the Beneficiary's duties, 
the Petitioner's staffing levels, the duties of her asserted subordinates, or other such relevant evidence. 
When examining the managerial or executive capacity of a given beneficiary, the Director must review 
the petitioner's description of the job duties. We note that a 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). Beyond the required 
description of the job duties, the Director should examine 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. Accordingly, the 
Director should examine and discuss evidence regarding the Beneficiary's job duties along with 
evidence of the nature of the Petitioner's business, its staffing levels, and its organizational structure. 
For these reasons, we remand this issue to the Director for analysis of the relevant factors above and 
for a determination as to whether the Beneficiary would act in a managerial or executive capacity in 
the United States. 
D. Fraud or Willful Misrepresentation of a Material Fact 
Lastly, the Director stated in the denial decision that it had made "a finding of fraud and 
misrepresentation because the petitioner has not submitted evidence to overcome the derogatory 
information [referenced by the Director in a Notice of Intent to Deny (NOID)]." Again, we conclude 
that the Director did not set forth sufficient reasons for these conclusions. 
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Both fraud 1 and misrepresentation 2 require analysis of various factors not adequately addressed by the 
Director in the decision. For instance, the Director did not analyze or discuss, in the case of fraud, 
whether the Petitioner or Beneficiary acted with knowledge of the falsity of the submitted evidence or 
assertions; and with the intent to deceive an immigration officer. Similarly, in the case of 
misrepresentation, the Director did not provide analysis of the listed factors; namely, whether: 1) the 
petitioner or beneficiary made a false representation to an authorized official of the United States 
government; 2) the misrepresentation was willfully made; and 3) the fact misrepresented was material. 
See Matter of M-, 6 I&N at Dec. 149; Matter of L-L-, 9 I&N at Dec. 324; Matter of Kai Hing Hui, 15 
I&N Dec. at 288. The Director only indicated that the Petitioner did not overcome the derogatory 
information, but did not sufficiently discuss why and did not provide sufficient reasoning as to why 
the Petitioner's, or Beneficiary's, assertions amounted to fraud and/or misrepresentation consistent 
with law. 
For these reasons, we remand the issue of fraud and misrepresentation to the Director for farther 
consideration and analysis consistent with this decision. 
ORDER: The decision of the Director is withdrawn. The matter is remanded for entry of a new 
decision consistent with the foregoing analysis. 
1 The terms "fraud" and "misrepresentation" are not interchangeable. Unlike a finding of fraud, a finding of material 
misrepresentation does not require an intent to deceive or that the officer believes and acts upon the false representation. 
See Matter of Kai Hing Hui, 15 T&N Dec. 288 (BIA 1975). A finding of fraud requires a determination that the alien made 
a false representation of a material fact with knowledge of its falsity and with the intent to deceive an immigration officer. 
Furthermore, the false representation must have been believed and acted upon by the officer. See Matter of G-G-, 7 I&N 
Dec. 161 (BIA 1956). 
2 As outlined by the Board of Immigration Appeals, a material misrepresentation requires that one willfully makes a 
material misstatement to a government official for the purpose of obtaining an immigration benefit to which one is not 
entitled. Matter of Kai Hing Hui, 15 I&N Dec. 288, 289-90 (BIA 1975). The term "willfully" means knowing and 
intentionally, as distinguished from accidentally, inadvertently, or in an honest belief that the facts are otherwise. See 
Matter of Tijam, 22 T&N Dec. 408, 425 (BIA 1998); Matter of Healy and Goodchild, 17 T&N Dec. 22, 28 (BIA 1979). To 
be considered material, the misrepresentation must be one which "tends to shut off a line of inquiry which is relevant to 
the alien's eligibility, and which might well have resulted in a proper determination that he be excluded." Matter of Ng, 
17 T&N Dec. 536, 537 (BIA 1980). Accordingly, for an immigration officer to find a willful and material misrepresentation 
in visa petition proceedings, he or she must determine: I) that the petitioner or beneficiary made a false representation to 
an authorized official of the United States government; 2) that the misrepresentation was willfully made; and 3) that the 
fact misrepresented was material. See Matter of M-, 6 I&N Dec. 149 (BIA 1954); Matter of L-L-, 9 I&N Dec. 324 (BIA 
1961 ); Matter of Kai Hing Hui, 15 I&N Dec. at 288. 
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