remanded L-1A Case: Packaging Materials

U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. 3000 
Washington, DC 20536 
MAIL STOP 2090 
U. S. Citizenship 
and Immigration 
FILE: WAC 07 193 52752 Office: CALIFORNIA SERVICE CENTER Date: DEC 2008 
PETITION: 
 Petition for a Nonimmigrant Worker Pursuant to Section 101 (a)(15)(L) of the Immigration 
and Nationality Act, 8 U.S.C. 5 1 101 (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 Mher inquiry must be made to that office. 
* 
John F. Grissom, Acting Chief 
Administrative Appeals Office 
WAC 07 193 52752 
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withdrawn and the case will be remanded for further consideration and action, which shall be certified to the 
AAO for review. 
The petitioner filed this nonirnmigrant visa petition seeking to employ the beneficiary as its "president" as an 
L- 1 A nonimmigrant intracompany transferee pursuant to section 10 1 (a)(15)(L) of the Immigration and 
Nationality Act (the Act), 8 U.S.C. 3 1101(a)(15)(L). The petitioner is a limited liability company organized 
under the laws of the State of California and is allegedly a producer of packaging materials. 
The director denied the petition concluding that the petitioner failed to establish that the petitioner and the 
foreign employer are qualifying organizations. Specifically, the director determined that the petitioner is not 
an "affiliate" as defined by the regulations because it has not been established that it and the foreign employer 
are owned by the same group of individuals, each individual owning and controlling approximately the same 
share or proportion of each entity. 
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 asserts that the petitioner and the foreign 
employer are "affiliates" as defined by the regulations. In support, counsel submits additional evidence 
pertaining to the beneficiary's alleged acquisition of additional ownership interests in the petitioner. 
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. 6 214.2(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 qualifymg organizations as defined in paragraph (l)(l)(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. 
(iii) 
 Evidence that the alien has at least one continuous year of full-time employment abroad 
with a qualifjmg 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 hirnlher to perform the intended services 
WAC 07 193 52752 
Page 3 
in the United States; however, the work in the United states need not be the same work 
which the alien performed abroad. 
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 
101 (a)(15)(L) of the Act; 8 C.F.R. 5 21 4.2(1). An "affiliate" is defined in part as "[olne of two subsidiaries 
both of which are owned and controlled by the same parent or individual." 8 C.F.R. 4 214.2(1)(1)(ii)(L)(l). 
An "affiliate" is also defined as "[olne of two legal entities owned and controlled by the same group of 
individuals, each individual owning and controlling approximately the same share or proportion of each 
entity.'' 8 C.F.R. 4 214.2(1)(1)(ii)(L)(2). 
In this matter, the petitioner asserts that both it and the foreign employer are majority owned by the beneficiary. 
In support, the petitioner submitted its operating agreement, relevant organizational minutes, and ownership 
certificates collectively indicating that the beneficiary owns a 51% interest. The petitioner also submitted 
translated organizational documents pertaining to the foreign employer indicating that the beneficiary owns a 
95% interest in the Mexican company. 
Nevertheless, on July 23, 2007, the director requested additional evidence. The director requested, inter alia, a 
copy of the foreign entity's "annual report," a "detailed list" of all owners of the petitioner and the foreign 
company and "what percentages they own," evidence pertaining to the acquisition of the beneficiary's ownership 
interest in the petitioner, copies of "stock certificates," and a copy of a "stock ledger." 
In response, counsel submitted an annual report, lists of owners for both entities, a "stock ledger," and wire 
transfer documents. 
On December 12, 2007, the director denied the petition concluding that the petitioner failed to establish that 
the petitioner and the foreign employer are qualifying organizations. Specifically, the director determined 
that the petitioner is not an "affiliate" as defined by the regulations because it has not been established that it 
and the foreign employer are owned by the same group of individuals, each individual owning and controlling 
approximately the same share or proportion of each entity. 
On appeal, counsel asserts that the petitioner and the foreign employer are "affiliates" as defined by the 
regulations. In support, counsel submits additional evidence pertaining to the beneficiary's alleged acquisition 
of additional ownership interests in the petitioner. Specifically, counsel claims that the beneficiary now owns 
a 95% interest in both entities. 
Upon review, the AAO agrees that the petitioner has established that it is more likely than not that it and the 
foreign employer are owned and controlled by the same individual, and are thus "affiliates." Accordingly, the 
director's decision shall be withdrawn. While the regulations define affiliate in part as "[olne of two legal 
entities owned and controlled by the same group of individuals, each individual owning and controlling 
WAC 07 193 52752 
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approximately the same share or proportion of each entity," an affiliate is also defined as "[olne of two 
subsidiaries both of which are owned and controlled by the same parent or individual." 8 C.F.R. § 
214.2(1)(l)(ii)(L). It is the latter definition which applies to this matter. Therefore, if one individual owns a 
majority interest in a petitioner and a foreign entity, and controls those companies, then the companies will be 
deemed to be affiliates under the definition even if there are multiple owners. See, e.g., Matter of Tessel, Inc., 
17 I&N Dec. 63 1 (Assoc. Comm. 198 1). In this matter, the petitioner has established that it is more likely 
than not that the beneficiary owns and controls, through his majority interests, both the petitioner (51% 
ownership) and the foreign entity (95% ownership) and, thus, the entities are "affiliates" as defined by the 
regulations.' 
Accordingly, the petitioner has established that it is more likely than not that it and the foreign employer are 
principally owned and controlled by the same individual, and the director's decision shall be withdrawn. 
However, upon review, the petitioner has not submitted sufficient evidence to establish eligibility for the L-1A 
classification. In this matter, given the petitioner's description of its business organization and the beneficiary's 
proposed relationship to this business, it appears more likely than not that the beneficiary will not be an 
"employee" of the United States operation. As explained in 8 C.F.R. 5 214.2(1)(3)(ii), the petitioner must 
establish that the beneficiary will be primarily "employed" as an executive or manager. 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. 
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. 31 8, 322-323 (1992) (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 skill required; the source 
of the instrumentalities and tools; the location of the work; the duration of the relationship 
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 kg and paying assistants; whether the work is 
-- 
1 
It is noted that counsel's attempt on appeal to supplement the record with evidence that the beneficiary 
acquired an additional 44% ownership interest in the petitioner after the filing of the instant petition was 
inappropriate and will not be considered by the AAO. The petitioner must establish eligibility at the time of 
filing the nonimrnigrant visa petition. A visa petition may not be approved at a future date after the petitioner 
or beneficiary becomes eligible under a new set of facts. Matter of Michelin Tire Corp., 17 I&N Dec. 248 
(Reg. Comm. 1978). However, as the record establishes that it is more likely than not that the petitioner and 
the foreign employer are "affiliates" without the AAO needing to consider the additional evidence submitted 
on appeal, the director's decision will be withdrawn. 
WAC 07 193 52752 
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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 § 220(2) (1958); Clackamas 
Gastroenterology Associates, P.C. v. Wells, 538 U.S. 440 (2003) (hereinafter "Clackamas"). As the comrnon- 
law test contains "no shorthand formula or magic phrase that can be applied to frnd 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; cJ New Compliance Manual, Equal Employment Opportunity Commission, 
!j 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 
he is subject to the organization's "control." See Clackamas, 538 U.S. at 449-450; see also New Compliance 
Manual at 5 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. 
WAC 07 193 52752 
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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 US. 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 (Cornm. 
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 confkonted 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 451 (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. 
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 
regarding the foreign employer's control over the beneficiary and his employment abroad. 
Furthermore, even if the beneficiary is, or will be, an "employee," the record is not persuasive in establishing that 
the beneficiary performed primarily managerial or executive duties abroad or will perform primarily managerial 
or executive duties in the United States. In support of its petition, the petitioner submitted vague and non-specific 
job descriptions which fail to establish what the beneficiary did on a day-to-day basis abroad or will do in the 
United States. 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. Suva, 724 F. Supp. 1 103, 1 108 (E.D.N.Y. 1989), afd, 905 F. 2d 41 (2d. Cir. 1990). 
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. at 604. 
Therefore, the director is directed to review the record, request pertinent additional evidence, and render a 
new decision after reviewing this evidence. 
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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 Mer 
action consistent with the above and entry of a new decision, which shall be certified to the 
AAO for review.