remanded L-1A Case: Internet Marketing

U.S. Department of Hameland Security 
20 Mass. Ave., N.W., Rrn. 3000 
Washington, DC 20536 
U.S. Citizenship 
and Immigration 
Services 
FILE: WAC 07 233 52324 Office: CALIFORNIA SERVICE CENTER Date: FEB o I! 2008 
PETITION: 
 Petition for a Nonimmigrant Worker Pursuant to Section 10 1 (a)(15)(L) of the Immigration 
and Nationality Act, 8 U.S.C. 5 1 10 1 (a)(15)(L) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS : 
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to 
the office that originally decided your case. Any further inquiry must be made to that office. 
c- 4x4 
Robert iemann, Chief 
Administrative Appeals Office 
WAC 07 233 52324 
Page 2 
DISCUSSION: The Director, California Service Center, denied the petition for a nonimmigrant visa. The 
matter is now before the Administrative Appeals Office (AAO) on appeal. The decision of the director will be 
withdrawn and the case will be remanded for fbrther consideration and action, and the entry of a new decision, 
which shall be certified to the AAO for fk-ther review. 
The petitioner filed this nonimmigrant visa petition seeking to employ the beneficiary as its chief executive 
officer to open a new office in the United States as an L-1A nonimmigrant intracbmpany transferee pursuant 
to section 101(a)(15)(L) of the Immigration and Nationality Act (the Act), 8 U.S.C. tj 1 10 1 (a)(15)(L). The 
petitioner is a limited liability company organized under the laws of the State of California and describes its 
business as "internet marketing and social media consultant." 
The director denied the petition concluding that the petitioner failed to establish that the petitioner and the 
foreign employer are quali@ing organizations. Specifically, the director determined that the petitioner failed 
to establish that it and the foreign employer share common ownership and control. While the petitioner has 
asserted that the beneficiary owns 5 1 % of the petitioner, the record indicates that "Business Web Ventures" 
owns the foreign employer. Furthermore, the director noted unresolved dating inconsistencies in the 
membership certificates and the membership ledger as well as a missing membership certificate for an owner 
of a minority interest. 
The petitioner subsequently filed an appeal. The director declined to treat the appeal as a motion and 
forwarded the appeal to the AAO for review. On appeal, counsel to the petitioner asserts that the record 
establishes that the beneficiary owns and controls both the petitioner and the foreign employer due to the 
beneficiary's ownership and control of the foreign employer's 100% owner, Business Web Ventures Pty Ltd. 
Counsel also submits additional evidence in an attempt to resolve the inconsistency in the stock ledger. 
Specifically, counsel submits a letter from its corporate attorneys explaining that the membership certificates 
should have been dated 2007 instead of 1997. Counsel also submits the missing membership certificate 
evidencing that 
 owned a 10% interest in the petitioner at the time the petition was filed. 
To establish eligibility for the L-1 nonimmigrant visa classification, the petitioner must meet the criteria 
outlined in section 10 1 (a)(15)(L) of the Act. Specifically, a qualifying organization must have employed the 
beneficiary in a qualifying 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. 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. 
The regulation at 8 C.F.R. 9 214.2(1)(3) states that an individual petition filed on Form 1-129 shall be 
accompanied by: 
(i) 
 Evidence that the petitioner and the organization which employed or will employ the 
alien are qualifying organizations as defined in paragraph (l)( 1 )(ii)(G) of this section. 
(ii) 
 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. 
WAC 07 233 52324 
Page 3 
(iii) 
 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. 
(iv) 
 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 himher 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. 
The regulation at 8 C.F.R. 9; 214.2(1)(3)(~) states that if the petition indicates that the beneficiary is coming to the 
United States as a manager or executive to open or to be employed in a new office in the United States, 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 
(3) 
 The organizational structure of the foreign entity. 
The primary issue in the present matter is whether the petitioner has established that it and the foreign 
employer are qualifying organizations. 
To establish a "qualifying relationship" under the Act and the regulations, the petitioner must show that the 
beneficiary's foreign employer and the proposed United States employer are the same employer (i.e., one 
entity with "branch" offices), or related as a "parent and subsidiary" or as "affiliates." See generally section 
lOl(a)(lS)(L) of the Act; 8 C.F.R. 9; 214.2(1). An "affiliate" is defined in part as "[olne of two legal entities 
owned and controlled by the same group of individuals." 8 C.F.R. 9; 214.2(1)(l)(ii)(L)(2). The petitioner 
must also establish that both it and the foreign entity are or will be "doing business." 
 8 C.F.R. § 
2 14.2(1)(1)(ii)(G)(2). 
WAC 07 233 52324 
Page 4 
In this matter, the petitioner asserts that both it and the foreign employer are owned and controlled by the 
beneficiary. At the time the petition was filed, the petitioner asserts that the beneficiary owned 90% of the 
petitioner and 90% of the foreign employer by virtue of his 90% ownership interest in the 100% owner of the 
foreign employer, Business Web Ventures Pty ~td.' In support of these asse~ons, the petitioner submitted 
organizational and regstration documents from Australia pertaining to the ownership and control of both the 
foreign employer and Business Web Ventures Pty Ltd. These documents indicate that the beneficiary owns and 
controls Business Web Ventures Pty Ltd. and, because Business Web Ventures Pty Ltd. owns and controls the 
foreign employer, the beneficiary owns and controls this entity as well. 
Furthermore, organizational documents pertaining to the petitioner, a California limited liability company, were 
also submitted. These documents, which include membership certificates, an operating agreement, and a 
certificate ledger, indicate that the beneficiary owned 90% of the petitioner at the time the petition was filed and, 
after the petition was filed, transferred a portion of his interest to his spouse, retaining ultimate ownership and 
control over the petitioner. Finally, the petitioner submitted a letter fi-om its corporate counsel addressing the date 
discrepancy between the membership certificates and the membership ledger. 
Upon review, the AAO agrees with counsel's assertions and the director's decision shall be withdrawn. It has 
been established that it is more likely than not that the beneficiary owns and controls both the foreign employer 
and the petitioner. The petitioner has established that the beneficiary owns and controls Business Web Ventures 
Pty Ltd., which, in turn, owns and controls the foreign employer. Likewise, the petitioner has established that the 
beneficiary owns and controls the petitioner and satisfactorily explained the date discrepancy between the 
membership certificate and membership ledger. 
Accordingly, the petitioner has established that it and the foreign employer are owned and controlled by the 
beneficiary, and the director's decision shall be withdrawn. 
However, upon review, the petitioner has not submitted sufficient evidence to establish eli~bility for the L-1A 
classification as a "new office." In this matter, given the petitioner's description of its business organization and 
the beneficiary's proposed relationship to this business as its majority owner, it appears more likely than not 
that the beneficiary will not be an "employee" of the United States operation after the first year in operation. 
As explained in 8 C.F.R. €j 214.2(1)(3)(v)(C), the petitioner must establish that, within one year of the 
petition's approval, the beneficiary will be primarily "employed" as an executive or manager. Further, section 
10 1 (a)(44), 8 U.S.C. § 1 101 (a)(44), defines both managerial and executive capacity as an assignment within an 
organization in which an "employee" performs certain enumerated qualifying duties. It is noted that "employer," 
"employee," and "employed" are not specifically defined for purposes of the Act even though these terms are 
used repeatedly in the context of addressing the L-1 classification. 
'It is noted that the beneficiary's ownership interest in both the petitioner and the foreign entity apparently 
changed after the petition was filed. In August 2007, the beneficiary apparently transferred a portion of his 
interest to his spouse. He now allegedly owns a 51% interest in the petitioner. Likewise, the beneficiary 
apparently transferred his interest in Business Web Ventures Pty Ltd. to River Alfresco Pty Ltd. However, 
the petitioner submitted evidence indicating that the beneficiary owns 100% of River Alfresco Pty Ltd. 
Therefore, it appears that the beneficiary continues to own and control both the petitioner and the foreign 
employer. 
WAC 07 233 52324 
Page 5 
The Supreme Court of the United States has determined that where a federal statute fails to clearly define the 
term "employee," courts should conclude "that Congress intended to describe the conventional master-servant 
relationship as understood by common-law agency doctrine." Nationwide Mutual Ins. Co. v. Darden, 503 
U.S. 3 18, 322-323 (1 992) (hereinafter "Darden") (quoting Community for Creative Non- Violence v. Reid, 490 
U.S. 730 (1989)). That definition is as follows: 
In determining whether a hired party is an employee under the general common law of agency, 
we consider the hiring party's right to control the manner and means by which the product is 
accomplished. Among the other factors relevant to this inquiry are the shll required; the source 
of the instrumentalities and tools; the location of the work; the duration of the relationshp 
between the parties; whether the hiring party has the right to assign additional projects to the 
hired party; the extent of the hired party's discretion over when and how long to work; the 
method of payment; the hired party's role in hiring and paying assistants; whether the work is 
part of the regular business of the hiring party; whether the hiring party is in business; the 
provision of employee benefits; and the tax treatment of the hired party. 
Darden, 503 U.S. at 323-324; see also Restatement (Second) of Agency fj 220(2) (1958); Clackamas 
Gastroenterology Associates, P. C. v. Wells, 5 3 8 U. S .440 (2003) (hereinafter " Clackamas"). As the common- 
law test contains "no shorthand formula or magic phrase that can be applied to find the answer, . . . all of the 
incidents of the relationship must be assessed and weighed with no one factor being decisive." Darden, 503 
U.S. at 324 (quoting NLRB v. United Ins. Co. of America, 390 U.S. 254,258 (1 968). 
Therefore, in considering whether or not the beneficiary in this matter will be an "employee," Citizenship and 
Immigration Services (CIS) should focus on the common-law touchstone of control. Clackamas, 538 U.S. at 
450. Factors indicating that a worker is an "employee" of an "employer" are clearly delineated in both the 
Darden and Clackamas decisions. 503 U.S. at 323-324; see also Restatement (Second) of Agency fj 220(2) 
(1958). Such indicia of control include when, where, and how a worker performs the job; the continuity of 
the worker's relationship with the employer; the tax treatment of the worker; the provision of employee 
benefits; and whether the work performed by the worker is part of the employer's regular business. See 
Clackamas, 538 U.S. at 448-449; cf: New Compliance Manual, Equal Employment Opportunity Commission, 
fj 2-III(A)(l), (EEOC 2006) (adopting a materially identical test and indicating that said test was based on the 
Darden decision). 
It is important to note that the factors listed in Darden and Clackamas are not exhaustive and must be 
evaluated on a case-by-case basis. Other aspects of the relationship between the parties may affect the 
determination of whether an employer-employee relationship exists. Furthermore, not all or even a majority 
of the listed criteria need be met; however, the fact finder must weigh and compare a combination of the 
factors in analyzing the facts of each individual case. The determination must be based on all of the 
circumstances in the relationship between the parties, regardless of whether the parties refer to it as an 
employee or as an independent contractor relationship. 
 See Clackamas, 538 U.S. at 448-449; New 
Compliance Manual at €j 2-III(A)(l). 
Within the context of the instant L-1 petition, because the beneficiary is a partner, officer, member of a board 
of directors, or a major shareholder or interest owner, the beneficiary may only be defined as an "employee" if 
WAC 07 233 52324 
I 
Page 6 
he is subject to the organization's "control." See Clackamas, 538 U.S. at 449-450; see also New Compliance 
Manual at 8 2-III(A)(l)(d). Factors to be addressed in determining whether the beneficiary, who is also an 
owner of the organization, is an employee include: 
Whether the organization can hire or fire the individual or set the rules and regulations of the 
individual's work. 
Whether and, if so, to what extent the organization supervises the individual's work. 
Whether the individual reports to someone higher in the organization. 
Whether and, if so, to what extent the individual is able to influence the organization. 
Whether the parties intended that the individual be an employee, as expressed in written 
agreements or contracts. 
Whether the individual shares in the profits, losses, and liabilities of the organization. 
Clackamas, 538 U.S. at 449-450 (citing New Compliance Manual). 
Again, it is important to note that this list need not be exhaustive and such questions cannot be decided in 
every case by a "shorthand formula or magic phrase." Id. at 450 (citing Darden, 503 U.S. at 324). Moreover, 
in applying the above test, the mere fact that a "person has a particular title - such as partner, director, or vice 
president - should not necessarily be used to determine whether he or she is an employee or a proprietor." 
Clackamas, 538 U.S. at 450; cj Matter of Church Scientology International, 19 I&N Dec. 593, 604 (Comm. 
1988) (stating that a job title alone is not determinative of whether one is employed in an executive or 
managerial capacity). Likewise, the "mere existence of a document styled 'employment agreement"' shall not 
lead inexorably to the conclusion that the worker is an employee. Clackamas, 538 U.S. at 450. "Rather, as 
was true in applying common-law rules to the independent-contractor-versus-employee issue confronted in 
Darden, the answer to whether a shareholder-director is an employee depends on 'all of the incidents of the 
relationship . . . with no one factor being decisive."' Id. at 45 1 (quoting Darden, 503 U.S. at 324). 
Consequently, since the beneficiary is a primary owner of the petitioner, the director is directed to review the 
record, request pertinent additional evidence regarding the petitioner's "control" over the beneficiary and his 
prospective employment, and render a new decision after reviewing this evidence. The director may wish to 
request such evidence as employment agreements, rules and regulations governing the beneficiary's prospective 
employment, or other documents addressing the organization's "control" over, or supervision of, the beneficiary's 
work performance, or lack thereof; and the beneficiary's ability, or inability, to influence the organization and the 
United States enterprise. 
Also, while not addressed by the director, the petitioner provided insufficient evidence to establish that the 
beneficiary was "employed" abroad in a managerial or executive capacity. Again, because the beneficiary 
appears to be the primary owner of the foreign employer, the director shall request pertinent additional evidence 
WAC 07 233 52324 
Page 7 
regarding the foreign employer's "control" over the beneficiary and his employment abroad (see supra) and 
render a new decision after reviewing ths evidence. 
Furthermore, the record is not persuasive in establishing that the beneficiary performed primarily managerial or 
executive duties abroad. In support of its petition, the petitioner submitted a vague and non-specific job 
description which fails to establish what the beneficiary did on a day-to-day basis abroad. Conclusory assertions 
regarding the beneficiary's employment capacity are not sufficient. Merely repeating the language of the 
statute or regulations does not satisfy the petitioner's burden of proof. Fedin Bros. Co., Ltd. v. Sava, 724 F. 
Supp. 1 103, 1 108 (E.D.N.Y. 1989), afd, 905 F. 2d 41 (2d. Cir. 1990); Avyr Associates, Inc. v. Meissner, 
1997 WL 188942 at *5 (S.D.N.Y.). Finally, while the petitioner listed the foreign employer's workers, it did 
not specifically describe their duties. Absent detailed descriptions of the duties of both the beneficiary and his 
purported subordinates, it is impossible for CIS to discern whether the beneficiary was "primarily" engaged in 
performing managerial or executive duties abroad or whether he supervised and controlled other managerial, 
supervisory, or professional workers. See sections 101(a)(44)(A) and (B) of the Act; see also Matter of 
Church Scientology International, 19 I&N Dec. 593,604 (Comm. 1988). 
Therefore, the director is directed to review the record, request pertinent additional evidence, and render a 
new decision after reviewing this evidence. 
For these additional reasons, the appeal may not be sustained, and the matter must be remanded to the director for 
further action. 
ORDER: 
 The decision of the director is withdrawn. The matter is remanded to the director for further 
action consistent with the above and entry of a new decision, which shall be cmfied to the AAO 
for fiu-ther review.