sustained L-1A Case: Wind Energy

PUBLIC COpy 
U.S. Department of Homeland Security 
U. S. Citizenship and Immigration Services 
Administrative Appeals Office (AAO) 
20 Massachusetts Ave .. N.W., MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
DATE: DEC 15 2011 OFFICE: CALIFORNIA SERVICE CENTER FILE: 
INRE: Petitioner: 
Beneficiary: 
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(15)(L) of the 
Immigration and Nationality Act, 8 U.S.C. § 1101(a)(15)(L) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
Enclosed please find the decision of the Administrative Appeals Office in your case. All of the 
documents related to this matter have been returned to the office that originally decided your case. Please 
be advised that any further inquiry that you might have concerning your case must be made to that office. 
If you believe the law was inappropriately applied by us in reaching our decision, or you have additional 
information that you wish to have considered, you may file a motion to reconsider or a motion to reopen. 
The specific requirements for filing such a request can be found at 8 C.F.R. § 103.5. All motions must be 
submitted to the office that originally decided your case by filing a Form I-290B, Notice of Appeal or 
Motion, with a fee of $630. Please be aware that 8 C.F.R. § 103.5(a)(1)(i) requires that any motion must 
be filed within 30 days of the decision that the motion seeks to reconsider or reopen. 
Thank you, 
PerryRhew 
Chief, Administrative Appeals Office 
www.uscis.gov 
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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 appeal 
will be sustained. 
The petitioner claims to be engaged in the transportation, installation, maintenance and 
Wind Turbine equipment. The petitioner states that it is an affiliate 
located in Canada. The foreign entity petitioned United States Citizenship and Immigration 
Services (USCIS) to classify the beneficiary as a nonimmigrant intracompany transferee (L-IA) 
pursuant to section 101(a)(15)(L) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 
1 1 01 (a)(15)(L). The petitioner seeks to employ the beneficiary as Vice President, Area Manager 
North America for a period of one year to open a new office in the United States. 
The director denied the petition on March 24, 2009, concluding that the record contains 
insufficient evidence to demonstrate that: (1) the petitioner has secured sufficient physical 
premises to house the new operation; and (2) that the beneficiary has been employed in a 
primarily executive or managerial capacity by the foreign company. The petitioner submitted an 
appeal on April 27, 2009. 
To establish eligibility under section 101(a)(15)(L) of the Act, the petitioner must meet certain 
criteria. Specifically, within three years preceding the beneficiary's application for admission 
into the United States, a firm, corporation, or other legal entity, or an affiliate or subsidiary 
thereof, must have employed the beneficiary for one continuous year. Furthermore, 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. § 214.2(1)(3) further 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 
(1)(1)(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. 
(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 
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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. 
In addition, the regulation at 8 C.F.R. § 214.2(I)(3)(v) states that if the petition indicates that the 
beneficiary is coming to the United States as a manager or executive to open or to 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 involved 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)(I)(ii)(B) or (C) of this section, supported by information regarding: 
(1) 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 ofthe foreign entity. 
If a petition indicates that a beneficiary is coming to the United States to open a "new office," it 
must show that it is ready to commence doing business immediately upon approval. At the time 
of filing the petition to open a "new office," a petitioner must affirmatively demonstrate that it 
has acquired sufficient physical premises to commence business, that it has the financial ability 
to commence doing business in the United States, and that it will support the beneficiary in a 
managerial or executive position within one year of approval. See generally, 8 C.F.R. § 
214.2(l)(3)(v). If approved, the beneficiary is granted a one-year period of stay to open the "new 
office." 8 C.F.R. § 214.2(l)(7)(i)(A)(3). 
The first issue to be addressed is whether sufficient physical premises to house the new office 
have been secured. The Form 1-129 requests L-IA nonimmigrant classification for the 
beneficiary from February 1,2009 until January 31, 2010. In response to the director's request 
for evidence, the petitioner submitted a document entitled, "Executive Suite Office Lease," 
between the petitioner and The contract 
stated that the petitioner an 0 space ,2009. In the 
denial decision, the director noted that the lease was not valid for the entire year requested on the 
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Form 1-129. On appeal, the petitioner submits an amendment to the initial lease indicating that 
the term of the lease "is extended for a period of 12 months from April 1, 2009 so that it shall 
expire on March 31,2010. In addition, the petitioner submitted a letter, dated February 5, 2009, 
that confirmed that the petitioner "is currently a tenant in good 
standing." 
On appeal, counsel for the petitioner explained that the petitioner's office space is 166.28 square 
feet and the "space meets the Petitioner's current needs." Counsel further states that the 
"majority of the company's employees will be travel technicians who will be performing their 
duties at client sites across the U.S. where the turbines are located, per the service contracts." 
Counsel also states that the initial office space will house only the Vice President Area Manager 
and one administrative staff. Finally, counsel states that "as the business grows, [the petitioner] 
anticipates that it will require additional office space and storage space and will secure such 
space as necessary." Upon review, the AAO will withdraw this issue as the petitioner provided 
sufficient evidence of physical premises to house the new office. 
The second issue to be addressed in this proceeding is whether the petitioner has established that 
the beneficiary has been employed abroad in a primarily managerial or executive capacity. 
Section 101(a)(44)(A) of the Act, 8 U.S.C. § 1101(a)(44)(A), provides: 
The term "managerial capacity" means an assignment within an organization in which the 
employee primarily-
(i) manages the organization, or a department, subdivision, function, or 
component of the organization; 
(ii) supervises and controls the work of other supervisory, professional, or 
managerial employees, or manages an essential function within the organization, or 
a department or subdivision of the organization; 
(iii) if another employee or other employees are directly supervised, has the 
authority to hire and fire or recommend those as well as other personnel actions 
(such as promotion and leave authorization), or if no other employee is directly 
supervised, functions at a senior level within the organizational hierarchy or with 
respect to the function managed; and 
(iv) exercises discretion over the day-to-day operations of the activity or function 
for which the employee has authority. A first-line supervisor is not considered to be 
acting in a managerial capacity merely by virtue of the supervisor's supervisory 
duties unless the employees supervised are professional. 
Section 101 (a)(44)(B) of the Act, 8 U.S.C. § 1101(a)(44)(B), provides: 
, . 
The tenn "executive capacity" means an assignment within an organization in which the 
employee primarily-
(i) directs the management of the organization or a major component or function 
of the organization; 
(ii) establishes the goals and policies of the organization, component, or function; 
(iii) exercises wide latitude in discretionary decision-making; and 
(iv) receives only general supervision or direction from higher level executives, 
the board of directors, or stockholders of the organization. 
Upon review of the record, the AAO withdraws the director's decision and sustains the appeal. The 
'tioner indicated that the beneficiary held the position of Vice President, Area Manager with 
The petitioner further clarified the beneficiary's duties abroad when 
responding to the request for evidence and in its brief on appeal. In addition, the petitioner 
submitted an organizational chart for the foreign company that indicated the chief executive officer 
supervised the beneficiary who in turn supervised the finance and administration manager and three 
travel technicians. According to the documentation, it appears that the beneficiary supervised 
professional employees who relieved him from perfonning non-qualifying duties. 
In visa petition proceedings, the burden of proving eligibility for the benefit sought remains 
entirely with the petitioner. Section 291 of the Act, 8 U.S.C. § 1361. Here, that burden has been 
met. Accordingly, the appeal will be sustained. 
ORDER: The appeal is sustained.