remanded L-1A Case: Swimming Pool Products Distribution

(b)(6)
U.S. Citizenship 
and Immigration 
Services 
MATTER OF E-0-A-, INC. 
APPEAL OF VERMONT SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: NOV. 29, 2016 
PETITION: FORM 
I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a distributor of liners, PVC membranes and related products for swimming pools , 
ponds and reservoirs, seeks to extend the Beneficiary ' s temporary employment as its vice-president 
under the L-1 A nonimmigrant classification for intracompany transferees . See Immigration and 
Nationality Act (the Act) section 101(a)(15)(L), 8 U.S.C. § 1101(a)(l5)(L). The L-lA 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, Vermont Service Center, denied the petition. The Director concluded that the 
evidence of record did not establish that: (1) it has a qualifying relationship with the Beneficiary 's 
foreign employer; (2) it has sufficient physical premises to house its business; (3) it is financially 
able to support the new office; and ( 4) it will employ the Beneficiary in a managerial or executive 
capacity under the extended petition. 
The matter is now before us on appeal. In its appeal, the Petitioner asserts that the Director ' s 
decision is based on an incorrect application of relevant law and policy and incorrect based on the 
evidence submitted. The Petitioner contends that the Director disregarded material evidence of its 
qualifying affiliate relationship with the foreign entity, evidence that it is , doing business at the 
location stated on the petition, evidence of its income during the first year of operations , and 
information regarding the duties performed by the Beneficiary's subordinates. 
Upon de novo review of the entire record of proceeding , including the Petitioner ' s assertions on 
appeal, we conclude that the Petitioner has provided sufficient evidence to overcome three of the 
Director's four adverse findings. Specifically , the evidence of record establishes that the Petitioner 
and the Beneficiary ' s foreign employer are both wholly owned by and 
therefore have an affiliate relationship as defined at 8 C.F.R. § 214.2(l)(l)(ii)(L). 
Further, the Petitioner has provided evidence that it leases an office space that is sufficient to 
accommodate its staff of three employees along with evidence that it is in fact paying rent and 
conducting its business operations from this location . Finally, the Petitioner provided evidence that 
it has been doing business for the previous year and evidence of its financial status as required by 8 
C.F.R. § 214.2(l)(14)(ii). Accordingly , the Director ' s adverse findings with respect to these three 
issues are withdrawn. 
Matter of E-0-A-, LLC 
The remaining issue to be addressed is whether the Petitioner established that the Beneficiary would 
be employed in a managerial or executive capacity under the extended petition. We agree with the 
Petitioner that the Director overlooked material evidence that should have been considered in 
making a determination on this issue, and further find that the Director should have requested 
additional evidence with respect to the Beneficiary's employment capacity prior to reaching a 
determination. Therefore, while we cannot conclude that the evidence of record establishes the 
Beneficiary's eligibility, we hereby remand this matter to the Director for further proceedings and 
entry of a new decision. A discussion of our findings is provided below. 
I. LEGAL FRAMEWORK 
To establish eligibility for the L-1 nonimmigrant visa classification, a qualifying organization must 
have employed the Beneficiary in a 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. Section 101(a)(l5)(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, executive, or specialized knowledge 
capacity. !d. 
The regulation at 8 C.P.R. § 214.2(1)(3) states that an individual petition filed on Form I-129, 
Petition for a Nonimmigrant Worker, 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) ofthis 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. 
(iv) Evidence that the alien's prior year of employment abroad was in a position 
l that was managerial, executive or involved specialized knowledge and that the 
alien's prior education, training, and employment qualifies him/her 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.P.R. § 214.2(1)(14)(ii) also provides that a visa petition, which involved the 
opening of a new office, may be extended by filing a new Form I-129, accompanied by the 
following: 
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Matter of E-0-A-, LLC 
(A) Evidence that the United States and foreign entities are still qualifying 
organizations as defined in paragraph (1)(1 )(ii)(G) of this section; 
(B) Evidence that the United States entity has been doing business as defined in 
paragraph (I)( 1 )(ii)(H) of this section for the previous year; 
(C) A statement of the duties performed by the beneficiary for the previous year 
and the duties the beneficiary will perform under the extended petition; 
(D) A statement describing the staffing of the new operation, including the 
number of employees and types of positions held accompanied by evidence of 
wages paid to employees when the beneficiary will be employed in a 
managerial or executive capacity; and 
(E) Evidence of the financial status of the United States operation. 
II. EMPLOYMENT IN A MANAGERIAL OR EXECUTIVE CAPACITY 
The sole issue to be addressed is whether the Petitioner established that the Beneficiary will be 
employed in a qualifying managerial or executive capacity, as defined at Section 101(a)(44) of the 
Act, under the extended petition. 
A. Evidence of Record 
The Petitioner filed the Form I-129 on November 19, 2015. It stated that it has three current 
employees in the United States and is engaged in selling and distributing swimming pool linings and 
related materials manufactured by its German parent company. 
The Petitioner stated the Beneficiary, as vice-president, will perform the following duties under the 
extended petition: 
• Oversee financial activities and budget preparation to fund operations and 
implement new projects; 
• Oversee and set direction for company activities concerned with pricing, sales, 
and distribution of products; 
• Confer with company officials to develop method and procedures to mcrease 
sales, expand markets, and promote business; 
• Monitor sales staff performance to ensure that goals are met; 
• Analyze details of sales territories to assess their growth potential and to set 
quotas; 
• Formulate pncmg policies on merchandise according to profitability 
requirements; 
• Select managerial staff; 
• Provide staff with assistance in performing difficult or complicated duties; 
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(b)(6)
Matter of E-0-A-, LLC 
• Set company goals and objectives and ensure appropriate resources are devoted to 
meeting goals and objectives; 
• Prepare sales and inventory reports for the [company] board; 
• Oversee negotiations and approval of agreements with suppliers, distributors, 
vendors, and other entities; 
• Serve as a key liaison between [the Petitioner] and [the foreign entity]. 
The Petitioner further stated that "our team of experienced and highly trained specialists in 
marketing, sales, logistics, as well as engineering managers and professionals who were placed 
under [the Beneficiary's] operational control assisted him and effectively launching [sic] our US 
operations." 
The Petitioner provided bi-weekly payroll summaries for the months of April through September 
2015 which show that the Petitioner employed and throughout this 
period. The Petitioner also provided evidence that it was outsourcing warehousing and logistics to 
' The Petitioner submitted copies of invoices showing that it had 
paid external service providers for marketing services, accounting services, payroll and other 
services. Finally, the Petitioner provided a copy of an invoice from in his capacity as 
"Sales Rep. USA," along with evidence that he has registered the Petitioner for industry exhibitions 
and provided other services in the capacity of"National Sales Manager." 
The Director issued a request for evidence (RFE), but, with respect to the issue of the Beneficiary's 
employment capacity, this request was limited to a request for the names, job duties, and educational 
credentials of employees who are directly managed by the Beneficiary.' 
In response, the Petitioner provided a detailed position description for its sales manager 
, noting that he has the authority to hire sales representatives and marketing associates, as well 
as a detailed position description for its project manager who has the authority to 
appoint or dismiss installation specialists, shipping warehouse stati, and external customs brokers. 
The Petitioner noted that these positions do not have specific educational requirements and noted 
that it selected these employees based on their experience and their ability to coordinate with the 
German support team. 
The Director ultimately denied the petition after finding that the Petitioner did not provide the 
requested position descriptions, educational requirements, or copies of educational credentials for 
the Beneficiary's subordinates. The Director concluded that the Beneficiary would not be employed 
in a managerial capacity because he would not be supervising professionals or supervisors and 
would not have sufficient staff to relieve him from performing primarily non-managerial duties. 
1 We note that the Director's RFE was focused almost entirely on the Petitioner's qualifying relationship with the 
Beneficiary's foreign employer and its physical premises. This request for information pertaining to the Beneficiary's 
subordinates was limited to a single sentence under the heading "Ownership and Control of the Foreign Entity." 
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Matter of E-0-A-, LLC 
On appeal, the Petitioner assert that the Director clearly overlooked the pos1t10n descriptions 
provided for the Beneficiary's subordinates and states that the evidence of record is sufficient to 
establish that the Beneficiary would be employed in a managerial or executive capacity under the 
extended petition. 
B. Analysis 
Upon review, the evidence of record as presently constituted does not establish that the Beneficiary 
would be employed in a managerial or executive capacity under the extended petition. 
However, the Director's adverse conclusion appears to be based, in large part, on a factual error, as 
the Director determined that the Petitioner submitted an incomplete response to her RFE. As such, 
we find that the Director did not fully consider the submitted evidence nor provide the Petitioner 
with adequate notice of the deficiencies in the record needed to file a meaningful appeal. 
When examining the managerial or executive capacity of the Beneficiary, we will look first to the 
Petitioner's description of the job duties. See 8 C.F.R. § 214.2(1)(3)(ii). 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. !d. The definitions of managerial and 
executive capacity each have two parts. First, the Petitioner must 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. US CIS, 469 F .3d 1313, 1316 (9th Cir. 
2006); Champion World, 940 F.2d 1533. 
Beyond the required description of the job duties, USCIS reviews the totality of the record when 
examining the claimed managerial or executive capacity of a beneficiary, 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. 
Here, the totality of the evidence in the record does not provide a clear picture of the Beneficiary's 
actual day-to-day duties or explanation of how the day-to-day operational work is distributed among 
the Petitioner's employees, contractors and employees of the foreign entity. The Petitioner did not 
provide a sufficiently detailed description of the Beneficiary's day-to-day duties and the proportion 
of time he would allocate to managerial and non-managerial duties. Further, while the Petitioner 
stated that it outsources a number of functions (including logistics, warehousing, accounting, and 
payroll) to external service providers it did not fully describe and document its use of contractors. In 
addition, we note that the Petitioner stated that it relies on support from employees of the 
Beneficiary's foreign employer, but did not specifically identify and document these employees and 
the services they provide. 
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(b)(6)
Matter of E-0-A-, LLC 
Further, we note that the Petitioner provided evidence of wages paid to the Beneficiary's subordinate 
employees through September 2015, but did not provide evidence of its staffing levels as of the date 
of filing the petition. Finally, the Petitioner has provided evidence related to a contracted sales 
employee named but did not provide a description of the nature and scope of his 
services. 
For these reasons, the record as presently constituted does not establish that the Beneficiary would 
be employed in a managerial or executive capacity under the extended petition. 
As the matter will be remanded, the Director is instructed to request any additional evidence deemed 
warranted to make an informed determination on this issue, including a detailed organizational chart 
showing the structure of the company at the end of the initial year of operations; a comprehensive 
description of the Beneficiary's job duties; evidence of wages paid to all employees in 2015; 
evidence of payments made to contractors in 2015 along with copies of contracts or other 
information regarding the nature of the services they provide; evidence related to any foreign entity 
employees who support the U.S. operations; and, a complete copy of the Petitioner's 2015 IRS Form 
1120, U.S. Corporation Income Tax Return. 
III. CONCLUSION 
We will remand this matter to the Director for further review and entry of a new decision. The 
Director should request any additional evidence deemed warranted and allow the Petitioner to 
submit such evidence within a reasonable period of time. 
In visa petition proceedings, it is the petitioner's burden to establish eligibility for the immigration 
benefit sought. Section 291 of the Act, 8 U.S.C. § 1361; Matter of Otiende, 26 I&N Dec. 127, 128 
(BIA 2013). 
ORDER: The decision of the Director, Vermont Service Center, is withdrawn. The matter is 
, remanded to the Director, Vermont Service Center, for further proceedings consistent 
with the foregoing opinion and for the entry of a new decision. 
Cite as Matter ofE-0-A-, Inc., ID# 100427 (AAO Nov. 29, 2016) 
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