sustained L-1A Case: Insurance

MATTER OF B-USAS-, INC. 
APPEAL OF VERMONT SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: NOV. 9, 2016 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a specialty insurance corporation, seeks to temporarily employ the Beneficiary as its 
"Head of Market Relations and Underwriting, Marine and Energy" under the L-1A nonimmigrant 
classification for intracompany transferees. See Immigration and Nationality Act (the Act) section 
101(a)(l5)(L), 8 U.S.C. § 1101(a)(l5)(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, Vermont Service Center, denied the petition. The Director concluded that the 
Petitioner did not submit sufficient evidence to establish that the Beneficiary was an employee of the 
qualifying foreign entity and therefore does not have the requisite employment abroad in a 
managerial or executive capacity. 
The matter is now before us on appeal. In its appeal, the Petitioner disputes the Director's findings, 
asserting that the Beneficiary was and continues to be employed abroad on a full-time basis by a 
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qualifying foreign entity pursuant to an exclusive service agreement. 
Upon de novo review, we find that the Petitioner has provided sufficient evidence to overcome the 
sole basis for denial. Therefore, we will withdraw the Director's decision and sustain the appeal. 
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.F.R. § 214.2(1)(3) states that an individual petition filed on Form I-129, 
Petition for a Nonimmigrant Worker, shall be accompanied by: 
(b)(6)
Matter of B-USAS- , Inc. 
(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 
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. 
II. THE BENEFICIARY'S EMPLOYEE STATUS ABROAD 
The Director denied the petition based on the finding that the Beneficiary provided services to the 
foreign entity in the capacity of an independent contractor and that he therefore was not an employee 
of the foreign entity. The Director largely based her finding on the contents of a document titled 
"Service Agreement," which the Petitioner provided in support of the Form I-129 and which dictates 
the terms and conditions of the Beneficiary's relationship with the 
P~titioner' s foreign affiliate. 
Specifically, the Director pointed out that according to clauses 2.1, 2.3, 4.2, and 10.1, respectively, 
the Beneficiary: ( 1) was not eligible for employee benefits; (2) was responsible for reporting his 
own wages on tax returns; (3) was responsible for his own out-of-pocket expenses, such as travel, 
food, and lodging; and ( 4) was not permitted to represent himself as a company employee or have 
authorization to enter into contracts or agreements on behalf of the company. The Director analyzed 
these four clauses and deemed that their cumulative effect was such that they precluded the 
Petitioner from being able to establish that its foreign affiliate and the Beneficiary had an employer­
employee relationship, a fundamental prerequisite to meeting the relevant statutory criteria, which 
requires the Beneficiary to have been an "employee" who was "employed" abroad continuously for 
one year by the Petitioner's affiliate. Sections 101(a)(l5)(L) and (44)(A)-(B) ofthe Act. 
While neither the former Immigration and Naturalization Service nor USCIS has defined the terms 
"employee," "employer," or "employed" by regulation for purposes of the intracompany transferee 
nonimmigrant classification, the Supreme Court has determined that where the applicable federal 
law does not define "employee," the term should be construed as "intend[ing] to describe the 
conventional master-servant relationship as understood by common-law agency doctrine." 
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Matter of B-USAS-, Inc. 
Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318, 322-323 (1992) (Darden) (quoting Comty. for 
Creative Non-Violence v. Reid, 490 U.S. 730,739-40 (1989) (C.C.N V)). The Court stated: 
"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 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." 
!d. at 323-324 (quoting C.C.N V, 490 U.S. at 751-52); see also Clackamas Gastroenterology Assocs. 
P.C. v. Wells, 538 U.S. 440, 445, 447 & n.5 (2003) (Clackamas). 
The 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; see Matter of Church Scientology Int'l, 19 I&N Dec. 593, 604 (Comm'r 1988) 
(explaining 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 
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agreement"' shall not lead inexorably to the conclusion that the worker is an employee. Clackamas, 
538 U.S. at 450. Conversely, a reference in an agreement to a worker being a "contractor" shall also 
not on its own result in a conclusion that the worker is not an employee. See id. 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 Am., 390 U.S. 254, 258 
(1968)) (emphasis added). 
In the present matter, while we do not dispute that the service agreement is relevant to the issue of 
the Beneficiary's status as an employee of the foreign entity, it is not the only relevant evidence in 
the record of their relationship. The record shows that in addition to the service agreement, the 
Petitioner provided a number of other relevant documents that should also have been weighed in 
determining whether the Beneficiary was an employee of the Petitioner's foreign affiliate. 
For instance, despite the service agreement's reference to, the Beneficiary as a contractor, the 
Beneficiary's lack of employee benefits, and his responsibility to report his wages to tax authorities, 
the foreign entity nevertheless acts in the capacity of an employer by providing the Beneficiary with 
an administrative assistant (hired and paid by the foreign entity) as well as office space, tools, and 
equipment, all of which the Beneficiary uses to carry out his assigned tasks. In addition, the duration 
of the service agreement is indefinite with no set expiration date. The service agreement also 
indicates that the Beneficiary is subject to the managerial control of the company and can be 
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(b)(6)
Matter of B-USAS-, Inc. 
terminated for cause or with sufficient notice per the agreement. Moreover, the Petitioner provided 
evidence to show that the Beneficiary is subject to employee training as well as annual performance 
evaluations conducted by senior management to whom the Beneficiary answers in the capacity· of a 
subordinate employee. Further, as indicated at Exhibit A of the service agreement itself, the foreign 
entity pays the Beneficiary's salary on a regular monthly basis and the Beneficiary is eligible for 
year-end bonus compensation, which is determined at the discretion of the foreign entity. This wage 
structure can be distinguished from that of the contractor in Darden, whose wages were commission­
based. 
In addition, the Petitioner provided evidence in response to the Director's request for evidence 
(RFE), which included the following: (1) an excerpt from the foreign entity's directory, which lists 
the Beneficiary's name, describes him as someone who "joined in December 2013," and 
includes the foreign entity's domain in the Beneficiary's email address; (2) a partial copy of the 
foreign entity's CEO statement announcing the Beneficiary's "appointment" as head of business 
development in Latin America; (3) a press release announcing the Beneficiary's appointment with 
the foreign entity in 2013; and (4) a copy of the Beneficiary's business card, providing his company 
email address and referring to him as the general representative of the foreign entity's market 
relations in Latin America. 
Pursuant to a qualitative analysis of the evidence, we find that the Petitioner submitted sufficient 
supporting documentation to meet the preponderance of the evidence standard in establishing that 
the Beneficiary was more likely than not an employee of the foreign entity. Despite the existence of 
a service agreement, which indicates that certain terms of the Beneficiary's employment are similar 
to those of a contractor, a comprehensive review of the totality of the record, including the 
documents described above, leads us to conclude that an employer-employee relationship did and 
continued to exist between the foreign entity and the Beneficiary during the requisite period in 
question. As such, we hereby withdraw the Director's decision. 
' III. CONCLUSION 
In visa petition proceedings, it is the petitioner's burden to establish eligibility for the immigration 
benefit sought. Section 291 ofthe Act, 8 U.S.C. § 1361; Matter ofOtiende, 26 I&N Dec. 127, 128 
(BIA 2013). The Petitioner in the instant case has sustained that burden. 
ORDER: The appeal is sustained. 
Cite as Matter ofB-USAS-, Inc., ID# 49478 (AAO Nov. 9, 2016) 
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