remanded L-1A Case: Telecommunications

U.S. Citizenship 
and Immigration 
Services 
MATTER OF S-W-T- INC. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: MAR. 5, 2018 
APPEAL OF CALIFORNIA SERVICE CENTER DECISION 
PETITION: FORM l-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a telecommunications company, seeks to temporarily employ the Beneficiary as the 
chief executive officer (CEO) of its new office' under the L-1A nonimmigrant classification for 
intracompany transferees. See Immigration and Nationality Act (the Act) section 101(a)(15)(L), 
8 U.S.C. § 1101(a)(15)(L). The L-1A 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 of the California Service Center denied the petition, concluding that the Petitioner did 
not establish, as required, that the Petitioner has a qualifying relationship with the Beneficiary's foreign 
employer. 
On appeal, the Petitioner submits additional evidence and asserts that it submitted sufficient 
evidence to establish that it is a subsidiary of the Beneficiary's foreign employer. The Petitioner 
maintains that the Director erred by relying, in part, on evidence that had been submitted with a 
previous nonimmigrant petition. 
Upon de novo review, we will withdraw the Director's decision and remand this matter for further 
review and entry of a new decision. 
I. LEGAL FRAMEWORK 
To establish eligibility for the L-1 A nonimmigrant visa classification for a new office, a qualifying 
organization must have employed the beneficiary in a managerial or executive capacity for one 
continuous year within three years preceding the beneficiary's application for admission into the 
United States. 8 C.F.R. § 214.2(1)(3)(v)(B). 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. Section 101(a)(15)(L) of the 
Act. The petitioner must also establish that the beneficiary's prior education, training, and 
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The term "new office" refers to an organization which has been doing business in the United States for less than one 
year. 8 C.F.R. § 214.2(1)(1 )(ii)(F). The regulation at 8 C.F.R. § 214.2(1)(3)(v)(C) allows a "new office" operation no 
more than one year within the date of approval of the petition to support an executive or managerial position. 
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Matter ofS-W-T- Inc. 
employment qualify him or her to perform the intended services in the United States. 8 C.F.R. 
§ 214.2(1)(3 ). 
If the Form 1-129, Petition for a Nonimmigrant Worker , indicates that the beneficiary is coming to 
the United States in L-1 A status to open or to be employed in a new office, the petitioner must 
submit evidence to demonstrate that the new office will be able to support a managerial or executive 
position within one year. This evidence must establish that the petitioner secured sufficient physical 
premises to house its operation and disclose the proposed nature and scope of the entity, its 
organizational structure, its financial goals, and the size of the U.S. investment. See generally, 
8 C.F.R. § 214.2(1)(3)(v). 
II. WITHDRAWAL OF DIRECTOR 'S DECISION 
The Director determined that the Petitioner did not establish that it has a qualifying relationship 
between the Petitioner and the Beneficiary's claimed foreign employer, 
The Petitioner claims that it is wholly-owned by a holding company, which, in 
tum , is wholly owned by The Petitioner provided incorporation documents and a stock 
certificate establishing that owns the holding company. The Petitioner also provided its 
articles of incorporation, by-laws , minutes of organizational meetings, stock certificates, and stock 
ledger indicating that all of its shares have been issued to the company . 
Finally, the Petitioner provided evidence, including wire transfer receipts and bank statements, 
indicating that has transferred $600,000 to the Petitioner's bank account as an initial 
investment. 
The Director concluded that the evidence was insufficient because: ( 1) the two wire transfers from 
were not contemporaneous with the issuance of the stock certificates; and (2) the Petitioner 
previously filed an L-1A petition on behalf of the Beneficiary in which it submitted a different 
version of its stock certificate # 1. That certificate indicated that the Petitioner had issued its shares 
directly to rather than to the company. 
On appeal, the Petitioner submits an affidavit from chairman, who states that the stock 
certificate referenced by the Director was a "draft" which was "never executed or issued. " The 
Petitioner contends that it met its burden by a preponderance of the evidence and that the Director 
should have based the decision on the evidence in the record . 
When a decision will rely on potentially derogatory information from outside the current record of 
proceeding , the petitioner must be provided with an opportunity to rebut this information prior to 
rendering the decision. See 8 C.F.R. § 103.2(b)(l6)(i). As the Director did not provide the 
Petitioner with this opportunity, we will withdraw the decision and remand the matter to the Director 
for further action . 
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Matter of S- W-T- Inc. 
The evidence submitted with this petition tends to support the Petitioner's claim that it is ultimately 
owned by However , the Petitioner has not adequately explained why it submitted a 
different version of its stock certificate number I in support of a prior L-1 A petition. If the 
certificate was "never executed or issued," as claimed by chairman, it is unclear why it 
would have been submitted to U.S. Citizenship and Immigration Services 
as supporting evidence. 
On remand, the Director should request additional explanation for this anomaly , as well as 
corroborating evidence of the claimed relationship between the Petitioner and its claimed parent , 
such as the Petitioner's federal tax returns with all supporting statement , the foreign entity ' s annual 
report identifying its subsidiaries , or any other objective evidence confirming the claimed parent­
subsidiary relationship. 
IJI. ONE YEAR OF EMPLOYMENT ABROAD 
Although not addressed in the Director's decision, the record as presently constituted contains 
insufficient evidence to establish that the Beneficiary had at least one continuous year of full-time 
employment abroad with the foreign entity in the three years preceding the filing of the petition. See 
8 C.F.R. § 214.2(1)(3)(iii). The Petitioner filed the Form 1-129 in October 2016. 
The Petitioner submitted a "salary proof ' letter from stating that the Beneficiary has been 
employed as "General Manager of North America " since 2013 with a monthly salary of RMB 
32,500. The Petitioner provided the Beneficiary 's internally generated monthly "pay stubs" for 
2014,2015 , and 2016, which appear to show his salary in Chinese currency. These documents are in 
English, are not accompanied by any Chinese language originals, and do not include a company 
name. 
The Beneficiary, a naturalized Canadian citizen , appears to reside in Canada. While it is possible 
that the foreign entity deposits his salary in a Chinese bank account , we find the foreign entity's 
letter and internally generated "pay stubs" to be insufficient to establish the Beneficiary ' s full-time 
employment with 
In addition, the Petitioner provided the Beneficiary's resume. He identifies the petitioning company 
as his employer for 2016, but does not list any prior employment with the foreign entity . 
As the matter will be remanded , the Director should request additional evidence of the Beneficiary ' s 
foreign employment, such as his Chinese and/or Canadian tax returns, other relevant tax 
documentation identifying his employer during this period , the original Chinese paystubs issued by 
the foreign entity, and the Beneficiary 's bank statements reflecting 
the incoming salary payments . 
IV. NEW OFFICE ELIGIBILITY 
Finally, the record 
as presently constituted does not establish the Petitioner's eligibility as a new 
office as defined at 8 C.F.R. § 214.2(1)(1)(ii)(F). 
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Matter ofS-W-T- Inc. 
The Petitioner was incorporated in January 2015, nearly two years before this petition was filed, and 
it has maintained office space in California since September 2015. The Petitioner states that its 
business activities have been "minimal" to date, but has not provided further evidence to corroborate 
its claim that it has not been doing business as defined in the regulations for the previous year. We 
note, for example, that the Petitioner's business plan indicates that it anticipates generating sales of 
$3 million in 2016 despite the fact that it filed the petition in October of that year. 
The Director should request copies of the Petitioner's 2015 and 2016 tax returns as well as any other 
evidence deemed necessary to determine its eligibility as a new office. 
V. CONCLUSION 
Based on the foregoing discussion, although the Director's decision will be withdrawn, the evidence 
of record as presently constituted does not establish the Beneficiary's eligibility for the benefit 
sought. 
ORDER: The decision of the Director is withdrawn. The matter is remanded for further 
proceedings consistent with the foregoing opinion and for the entry of a new decision, 
which, if adverse, shall be certified to us for review. 
Cite as Matter ofS-W-T- Inc., ID# 905350 (AAO Mar. 5, 2018) 
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