sustained L-1B Case: Football Data Analysis

.
U.S. Citizenship 
and Immigration 
Services 
MATTER OF PFF AA-, 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: SEPT. 27,2017 
APPEAL OF CALIFORNIA SERVICE CENTER DECISION 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORK ER 
The Petitioner , which compiles and analyzes data from football games, 
seeks to temporarily employ 
the Beneficiary as an NFL product manager under the L-1 B nonimmigrant classification for 
intracompany transferees . See Immigration and Nationalit y Act (the Act)~ 10l(a)(l5)(L) , 8 U.S.C. 
§ 1101(a)(15)(L). The L-IB classification allows a corporation or other legal entity (including its 
affiliate or subsidiary) to transfer a qualif ying foreign employee with ·'specialized knowledg e·· to 
work temporarily in the United States. 
The Director of the California Service Center denied the petition, concluding that the record did not 
establish, as required , that the Beneficiary has been employed abroad as a manager or executive . or 
in a position involving specialized knowledge , for at least one continuous year during the three years 
preceding the tiling of the petition. 
On appeal, the Petitioner asserts that , despite unusual arrangements relating to the Beneficiar y" s 
remuneration, the Petitioner ' s foreign subsidiary has been the Beneficiary's full-time and exclusi ve 
employer throughout the relevant period. 
Upon de novo review , we find that the Petitioner has provided sufficient evidence to overcome the 
sole basis for denial. Therefore, we will sustain the appeal. 
r. LEGAL FRAMEWORK 
To establish eligibility for the L-1 B nonimmigrant visa classification , a qualif ying organization must 
have employed the beneficiary "in a capacit y that is managerial, executive. or involves speciali zed 
knowledge," for one continuous year within three years preceding the beneficiary's application for 
admission into the United States. Section 101 (a)(15)(L) of the Act. 1 In addition. the Benefici ary 
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 specialized knowledge capacity. !d. 
1 
The regulation at 8 C.F.R. § 214.2(1)(3)(iii) requires ''at least one continuous year of full-time employment abroad with 
a qualifYing organization within the three years preceding the filing of the petition.·· 
.
Matter of PFFAA-. 
II. THE BENEFICIARY'S EMPLOYEE STATUS ABROAD 
The Director found that the Beneficiary provided services to the foreign entity as an independent 
contractor, and that he therefore was not an employee of the foreign entity. The Director largely 
based this finding on the documentation of the Beneficiary's remuneration. The Beneficiary did not 
consistently receive the same amount from one pay period to the next, and some payments were 
issued to what appeared to be a consulting company named after the Beneficiary. The Director 
acknowledged that the foreign company had control over the Beneticiary"s work. but found that the 
Petitioner had not submitted a written contract with the Beneficiary or otherwise provided enough 
detailed information to show that the Beneficiary was an employee rather than an independent 
contractor. The law requires the Beneficiary to have been an "employee" who was "employed'' 
abroad continuously for one year by the Petitioner's affiliate. Sections 101(a)(15)(L) and (44)(A)­
(B) ofthe Act. 
While neither the former Immigration and Naturalization Service nor U.S. Citizenship and 
Immigration Services 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 detine "employee," the term should be 
construed as "intend[ing] to describe the conventional master-servant relationship as understood by 
common-law agency doctrine." Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318, 322-323 (1992) 
(Darden) (quoting Comly. /(Jr 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 pati 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 Gastroenterolo,t,ry Assocs. 
P.C. v. Wells, 538 U.S. 440,445,447 & n.5 (2003) (Clackamas). 
A reference to a worker being a "contractor'' shall not, on its own, result in a conclusion that the 
worker is not an employee. Cl Clackamas , 538 U.S. at 450. As the common-law test contains "no 
shorthand formula or magic phrase that can be applied to find the answer, ... all of'the incidents ol 
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) . 
2 
.
Matter of PFFAA- , 
In the present matter, the Director found that "[t]he billing invoices show that the beneficiary is a 
self-employed independent contractor who contracts his services to [the Petitioner's foreign 
subsidiary] through his own company ... [which is] a non-qualifying entity.'' The Director 
identified this company as the Beneficiary's surname followed by the word "Consulting.'' The 
record, however, does not show that such a company exists as a legal entity. Some of the monthly 
pay invoices show the word "consulting" after the Beneficiary's surname, but others show the 
Beneficiary's surname followed by "contractor,'' and still others simply show the Beneficiary's 
surname. As the Petitioner notes on appeal , the Beneficiary's personal bank account. held in his 
own name rather than that of a consulting firm, shows deposits directly from the Petitioner. 
While we do not dispute that references to the Beneficiary as a ··contractor" or ''consultant'' are 
relevant to the issue of the Beneficiary's status as an employee of the foreign entity, the pay invoices 
are not the only relevant evidence in the record of their relationship. The record includes several 
other elements that the Director should have weighed in determining whether the Beneficiary was an 
employee of the Petitioner's foreign subsidiary. 
The foreign entity's vice president (VP) of football operations stated that many of its analysts work 
from home, and the Beneficiary is the only analyst based in Ireland. 2 The VP stated that the 
company lacks "the capacity to execute payroll for the Republic of Ireland" and therefore the 
Beneficiary "has been paid outside of our normal payroll procedure.'' He continued: 
Despite the manner in which he receives his compensation, [the Beneficiary] has been 
a full-time employee of [the foreign entity] since September 2010 in all other 
respects. [The Beneficiary's] employment is held to the same standard as [company] 
employees based in the UK, and [the Beneficiary's] day-to-day activities are 
controlled and directed by his supervisors , including me .... [The company] provides 
him with the tools and resources that he needs to perform his role. 
[The Beneficiary] reports directly to me. I provide him with weekly assignments and 
deadlines and engage in discussions with him regarding the nature and deadlines of 
his projects and daily work. 
Evidence of exchanges between the Beneficiary and the VP illustrate the company's control over the 
Beneficiary's work schedule and other details. In a January 2016 performance review (which 
referred to the Beneficiary as an 
"Employee"), the VP indicated that the Beneficiary is '·[i]nvolved in 
the hiring and development of new full time staff' and "[i]nstrumental in development of NFL 
product." 
The Director gave the performance reviews diminished weight because some of them lack dates and 
signatures "and did not address any issues related to personnel management. Therefore, they cannot 
be deemed as evidence to prove [the Beneficiary's] employment history." By themselves. the 
2 The foreign entity is based in the United Kingdom. 
.
Matter of PFFAA-. 
evaluations are not sufficient evidence of past employment, but the Petitioner did not submit them by 
themselves. Rather, the Petitioner intended them to be parts of a larger whole. 
The Beneficiary has written online and spoken on broadcast media , including on platforms operated 
by the major The record shows that he performed these activities on the 
petitioning organization's behalf. The Petitioner has also written extensively on the Petitioner's own 
website, as a member of its "Analysis Team." In this way, the Beneficiary has consistently 
presented himself to the public as an integral part of the petitioning organization. The Director 
acknowledged this evidence but dismissed it, saying that "the documentation does not demonstrate 
that the Beneficiary is actually an employe[ e ]" of the petitioning organization. The evidence 
described above is relevant because it shows that the Beneficiary has not only performed work for 
the company, but has often appeared as its public face, in a manner that identified him as a part of 
that company rather than as a hired spokesman or consultant. 
The company's policy supports the above conclusion with this provision, emphasized in the 
original document: "Using [the company's name] in a is to be restricted to only full-
time staff members.'' The Beneficiary drafted the policy himselt: and therefore he was 
demonstrably aware of that policy when he included the petitioning organization ' s name in his own 
In the capsule biography on his page, the Beneficiary called himself the 
company's "Lead NFL Analyst." 
The Director stated: "Generally, you must withhold income taxes , withhold and pay Social Security 
and Medicare taxes, and pay unemployment tax on wages paid to an employee . 
. . . Upon review of 
the file, you did not show that you have withh[ e ]ld or pa[id] any taxes on payment to the 
beneficiary." The Beneficiary worked outside the United States for an employer based in the United 
Kingdom, and therefore we should not expect 
to see taxes withheld for U.S. programs such as Social 
Security or Medicare. Furthermore, the Beneficiary 's pay receipts from 2016 do show several 
deductions from the Beneficiary's gross pay, including withholding of taxes. 
The foreign entity further acts in the capacity of an employer by controlling the Beneficiary's work 
and providing him with the analytical tools that he uses to carry out his assigned tasks. The record 
does not contain any agreement limiting the time of the Beneficiary's service with the company. He 
is subject to the managerial control of the company and is subject to annual performance eva I uations 
conducted by senior management to whom the Beneficiary answers in the capacity of a subordinate 
employee. 
After considering all relevant factors, we find that the Petitioner has established. by a preponderance 
of the evidence, that the Beneficiary has more likely than not been a full-time employee of the 
foreign entity. 3 Despite inconsistent references to the Beneficiary as a consultant or contractor. 
' Although the Beneficiary's compensation varied from one pay period to the next, it did not vary to such an extent that 
the work could be considered part-time. An employee's compensation can vary from one pay period to the next. just as a 
contractor's work agreement could stipulate uniform payments. 
4 
.
Maller of PFFAA- , 
which the Petitioner has endeavored to explain, a comprehensive review of the record 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. Because the Petitioner has 
overcome the only stated ground for denial, we hereby withdraw the Director's decision. 
III. CONCLUSION 
The Petitioner has established that its foreign subsidiary continuously employed the Beneficiary for 
at least one year during the three years preceding the tiling of the petition. 
ORDER: The appeal is sustained. 
Cite as Malter of PFFAA-, 1 TO# 528431 (AAO Sept. 27, 2017)