remanded L-1A Case: Software Consulting

US. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Office ofAdministrative Appeals. MS 2090 
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File: WAC 09 009 50466 Office: CALIFORNIA SERVICE CENTER Date: 
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 1 101(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 further inquiry must be made to that office. 
wn F. Grissom 
Acting Chief, Administrative Appeals Office 
' WAC 09 009 50466 
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 AAO will remand the petition 
to the director for further action and entry of a new decision. 
The petitioner seeks to employ the beneficiary temporarily in the United States as an L-1A nonimmigrant 
intracompany transferee pursuant to section 10 1 (a)(15)(L) of the Immigration and Nationality Act (the Act), 8 
U.S.C. 5 1101(a)(15)(L). The petitioner, a California limited liability company, intends to operate a software 
consulting business. It claims to have a qualifying relationship with Perfect Programming Pty. Ltd., located 
in Australia. The petitioner seeks to employ the beneficiary as the general manager of its new office in the 
United States for a period of three 
The director denied the petition, determining that the petitioner did not establish: (1) that the petitioner had 
secured adequate physical premises to house the new office; or (2) that the U.S. and foreign entities have a 
qualifying relationship. 
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 for the petitioner generally objects to the 
lengthy request for additional evidence that was issued by the director in this matter, noting that the amount of 
evidence requested was unduly burdensome and made it difficult for the petitioner to submit a complete 
response. The petitioner submits additional evidence in support of the appeal. 
To establish eligibility for the L-1 nonimmigrant visa classification, the petitioner must meet the criteria 
outlined in section 101(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. 5 214.2(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)(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 qualifying organization within the three years preceding the filing of 
the petition. 
1 
 Pursuant to the regulation at 8 C.F.R. 5 214.2(1)(7)(i)(A)(3), if the beneficiary is coming to the United States 
to open or be employed in a new office, the petition may be approved for a period not to exceed one year. 
' WAC 09 009 50466 
Page 3 
(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 himlher 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. 5 214.2(1)(3)(~) also provides that if the petition indicates that the beneficiary is 
coming to the United States as a manager or executive to open or 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 involves 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: 
(I) 
 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 first issue to be addressed is whether the petitioner established that it has secured sufficient physical 
premises to house the new office. 
The petitioner filed the Form 1-129, Petition for a Nonimmigrant Worker, on October 14,2008. The petitioner 
stated that the petitioner's business address is 4570 Campus Drive, Suite 7, Newport Beach, California. The 
petitioner submitted a "service agreement" for this premises with a commencement date of August 1, 2008. 
The agreement provides for exclusive use of an office suite, receptionist services, conference room use and 
other services. 
The director issued a lengthy RFE on October 17, 2008, in which he requested, inter alia, a copy of the 
petitioner's floor plan, photographs of the premises, and a letter from the property owner or management 
company confirming the petitioner's occupancy of the premises. In response, the petitioner re-submitted a 
WAC 09 009 50466 
Page 4 
copy of its leaselservice agreement along with several color photographs depicting the interior and exterior of 
the leased premises. 
The director denied the petition on November 14, 2008, concluding that the petitioner did not establish that it 
had secured sufficient physical premises to house the new office. The director acknowledged receipt of a lease 
agreement, but determined that the agreement was only valid from August 1,2008 until August 3 1, 2008, and 
was thus no longer valid at the time the petition was filed. The director further noted that the lease agreement 
did not provide the total square footage of the office space. Finally, the director observed that the petitioner 
failed to provide evidence that it had entered into a new leasing arrangement or purchased property for the 
purpose of conducting its business. 
On appeal, counsel for the petitioner asserts that the director misinterpreted the terms of the lease agreement, 
noting that, after August 3 1, 2008, the lease was to remain in effect on a month-to-month basis, requiring the 
petitioner to provide 60 days written notice if it seeks to terminate. The petitioner provides evidence that the 
company paid monthly rent for the premises between the months of August 2008 and December 2008. In 
addition, the petitioner provides a letter from the property manager dated November 24,2008, confirming that 
the petitioner has a month-to-month lease and continues to occupy the leased premises. 
Upon review, counsel's assertions are persuasive. The evidence of record is sufficient to establish that the 
petitioner was leasing a commercial office at the time of filing and continued to do so at the time the petition 
was adjudicated. Accordingly, the director's decision with respect to this issue will be withdrawn. 
The second issue addressed by the director is whether the petitioner established that it has a qualifying 
relationship with the foreign entity. To establish a "qualifying relationship" under the Act and the regulations, 
the 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 related as a "parent and subsidiary" or as "affiliates." See 
generally section lOl(a)(15)(L) of the Act; 8 C.F.R. 5 214.2(1). 
The petitioner claims to have a qualifying relationship with Perfect Programming Pty Ltd., an Australian 
company. The evidence of record shows that the U.S. limited liability company is owned and controlled in 
equal shares by two members- and The evidence submitted is sufficient 
to establish that the foreign entity is also effectively owned and controlled by these two individuals. 
The director denied the petition based on the petitioner's failure to submit evidence of monies transferred from 
the foreign entity to the U.S. entity in exchange for the stock purchase. 
On appeal, counsel for the petitioner acknowledges that such evidence was requested in the RFE, but 
maintains that the U.S. company and foreign entity are both owned and controlled by the same two 
individuals and therefore possess the requisite qualifying relationship. The petitioner nevertheless provides 
evidence that the foreign entity has made multiple monetary transfers to the U.S. company in order to finance 
the U.S. company's start-up costs. 
Upon review of the totality of the evidence in the record, the AAO finds sufficient evidence of an affiliate 
relationship between the petitioner and Perfect Programming Pty Ltd., an Australian company assigned 
' WAC 09 009 50466 
Page 5 
Australian Company Number 126 190 690, based on common ownership and control by the same two 
individuals in equal proportions. 
However, the AAO notes that the above-referenced company was registered with the Australian Securities 
and Investments Commission on June 26, 2007, and its shares were issued on that date. According to the 
foreign entity's financial report for the year ended June 30, 2008, the company was not active for the year 
ended June 30, 2007. The beneficiary's period of qualifying employment with the foreign entity is claimed to 
have taken place between January 2004 and June 2007. 
The record also contains evidence that a company named Perfect Programming Pty. Ltd. was registered with 
the Australian Securities and Investments Commission on July 8, 2002 and assigned Australian Company 
Number 101 269 872. The AAO cannot conclude without further evidence that this company was doing 
business during the beneficiary's claimed period of employment abroad, that it had the same ownership as the 
company assigned Australian company number 126 190 690, or that these two companies should be 
considered one and the same company for purposes of determining whether the petitioner has a qualifying 
relationship with the beneficiary's previous foreign employer. 
Accordingly, the petition will be remanded to the director, who is instructed to request additional evidence to 
establish that the beneficiary was employed by a qualifying employer abroad. The petitioner should submit 
corporate tax returns for the beneficiary's foreign employer dating back to 2005 and provide documentary 
evidence of the ownership and control of the Australian company established in 2002, as well as an 
explanation regarding the registration of a second company with the same name in 2007. The evidence as 
presently constituted does not contain sufficient evidence to establish that the petitioner's Australian affiliate 
is the same company that employed the beneficiary. 
Although not addressed in the director's decision, the record as presently constituted also contains insufficient 
evidence that the beneficiary's employment abroad was in a primarily managerial or executive capacity as 
those terms are defined at section 101(a)(44)(A) and (B). The record contains a copy of the beneficiary's 
resume, wherein he states that his duties included: 
managing customer development accounts 
analysis of business problems 
delivery of business solutions 
programming in Microsoft Dynamics AX/X++ 
testing in Microsoft Dynamics AX/X++ 
web programming in Microsoft Dynamics AX/X++ 
modifying the General Ledger, Account Receivable, Accounts Payable, Inventory 
Management, Production, Project, CRM and Enterprise Portal Dynamics AX modules 
developing training materials 
developing examination materials 
delivering internal and customer training in Microsofi Dynamics AX/X++ and Web 
Applications 
managing the corporate website 
WAC 09 009 50466 
Page 6 
In a letter dated October 3, 2008, the petitioner stated that the beneficiary "managed and oversaw company 
activities related to providing services"; implemented departmental goals, objectives and procedures"; 
managed delivery of business solutions; and "managed the utilization and implementation of various software 
programs." 
Upon review of the initial evidence, the director requested that the petitioner submit a more detailed 
description of the beneficiary's position as general manager of the foreign entity, along with the percentage of 
time he allocated to each duty. The director also requested a detailed organizational chart clearly depicting 
the position the beneficiary held within the foreign company, as well as information regarding the number of 
employees he supervised and their job duties. In response to the director's request, the petitioner referred the 
director to the letter dated October 3, 2008, and submitted a chart depicting the foreign entity's structure as of 
October 2008. The record is devoid of any evidence of the structure of the foreign entity during the 
beneficiary's employment with the company between 2004 and June 2007. 
The evidence of record does not establish that the beneficiary was employed by the foreign entity in a 
primarily managerial or executive capacity. Although the petitioner indicates that the beneficiary "managed" 
the provision of consulting services while employed by the foreign entity, the job description he included in 
his own resume suggests that his primary duties were to personally provide software solutions and training to 
the petitioner's customers, rather than to manage a staff of professional personnel or an essential function of 
the foreign organization. It is incumbent upon the petitioner to resolve any inconsistencies in the record by 
independent objective evidence. Any attempt to explain or reconcile such inconsistencies will not suffice 
unless the petitioner submits competent objective evidence pointing to where the truth lies. Matter of Ho, 19 
I&N Dec. 582, 591-92 (BIA 1988). An employee who "primarily" performs the tasks necessary to produce a 
product or to provide services is not considered to be "primarily" employed in a managerial or executive 
capacity. See sections 101(a)(44)(A) and (B) of the Act (requiring that one "primarily" perform the 
enumerated managerial or executive duties); see also Matter of Church Scientology Int'l., 19 I&N Dec. 593, 
604 (Comm. 1988). 
The director should instruct the petitioner to submit additional evidence pertaining to the beneficiary's duties 
and the staffing structure of the foreign entity during the relevant time period in order to correct these 
deficiencies. If the foreign entity used the services of contracted or commissioned staff to perform any duties, 
the petitioner should describe in detail the duties they performed and provide evidence of fees, wages or 
commissions paid to payroll and contract staff during the beneficiary's tenure with the foreign entity. 
It is emphasized that the petitioner must establish eligibility at the time of filing the nonimmigrant 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). 
Evidence and explanation that the petitioner submits must show eligibility as of the filing date, October 14, 
2008. 
In this matter, the evidence of record raises underlying questions regarding eligibility. Further evidence is 
required in order to establish that the petitioner and beneficiary meet the requirements for this nonimmigrant 
visa classification as of the date of filing the petition. The director's decision will be withdrawn and the 
WAC 09 009 50466 
Page 7 
matter remanded for further consideration and a new decision. The director is instructed to issue a request for 
evidence addressing the issues discussed above, and any other evidence deemed necessary. 
ORDER: 
 The decision of the director dated November 14, 2008 is withdrawn. The matter is 
remanded for further action and consideration consistent with the above discussion 
and entry of a new decision.