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Synopsis of Administrative Appeals Office (AAO) L-1A Case Decisions for December 2016

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​AAO’s Decision Date: 12/03/2106

Director’s Decision Date: 10/29/2014

RFE Date:

Date of Filing: 07/18/2014

Matter of A-W-, Inc., ID# 101868 (AAO Dec. 2, 2016)

Appeal of L-1A Intracompany Transfer of Executive and Managers, Form I-129, Petition for a Non-Immigrant Worker

Foreign Country: India

U.S. State of Operation: Texas

Type of Company: Retail Cellular phone and accessories stores

Type of Employment/Job Title: Managing Director

New Office or Existing Office: New Office

Number of Employees:

Service Center: Vermont

Decision: The appeal is dismissed.

Site Link: https://www.uscis.gov/sites/default/files/err/D7%20-%20Intracompany%20Transferees%20(L-1A%20and%20L-1B)/Decisions_Issued_in_2016/DEC022016_01D7101.pdf

Issues & Facts:

The Director concluded that the evidence of record did not establish that the Petitioner had acquired sufficient physical premises to house its new office.

Lease was not signed by the landlord. The Director requested additional evidence, such as a complete copy of the Petitioner's lease, a letter describing the work site and why it was chosen, and a letter from the owner or property management company confirming that the Petitioner is occupying the premises and authorized to sublet it.

In denying the petition, the Director observed that the Petitioner's lease was signed nearly three months after the filing of the petition. In addition, the Director noted that the Petitioner had not addressed or submitted additional evidence to establish the validity of the lease sharing arrangement with ___ which it claimed to have in place at the time of filing. On motion, the Petitioner addressed its arrangement with ___ noting that it "had informally obtained landlord's consent to simultaneously share the space with another company," and therefore, the arrangement was not prohibited by the lease agreement and had been in place as of June 1, 2014.
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AAO: Did not show would work in qualified position in the US.

The Petitioner states that it intends to operate a chain of retail stores specializing in cellular phones and accessories. The Petitioner's plans for the first year of operations are based on its claim that it had already acquired a majority, controlling interest in four existing U.S. companies that operate cell phone stores and placed these companies' employees on its own payroll. The Petitioner stated on the Form I-129 that it had 12 employees as of the date of filing and that it anticipates net annual income of $1.14 million during its first year of operations. In its letter in support of the petition, the Petitioner clearly stated that it "has acquired a majority ownership of four wireless companies." However, the Petitioner did not provide sufficient evidence to corroborate its purchase of its claimed subsidiaries.  There were inconsistencies on the purchase info.

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AAO’s Decision Date: 12/06/2016

Director’s Decision Date:

RFE Date:

Date of Filing: 04/08/2016

Matter of M-B- Inc., ID# 108914 (AAO Dec. 6, 2016

Appeal of L-1A Intracompany Transfer of Executive and Managers, Form I-129, Petition for a Non-Immigrant Worker

Foreign Country: Colombia

U.S. State of Operation: Texas

Type of Company: wholesale and retail ice cream business

Type of Employment/Job Title: Sales manager

New Office or Existing Office: New Office

Number of Employees:

Service Center: Vermont

Decision: The appeal is dismissed.

Site Link: https://www.uscis.gov/sites/default/files/err/D7%20-%20Intracompany%20Transferees%20(L-1A%20and%20L-1B)/Decisions_Issued_in_2016/DEC062016_02D7101.pdf

Issues & Facts:

The Director concluded that the evidence of record did not establish that: ( 1) the Beneficiary is employed abroad in a managerial or executive capacity; (2) the Beneficiary would be employed in the United States in a managerial or executive capacity within one year of approval of the new office petition; and (3) the Petitioner had acquired sufficient physical premises to house the new office.

The Petitioner provided a general organizational chart for the foreign entity which includes a total of approximately 29 positions and/or departments, but does n9t identify any employees by name. The initial evidence also included an employee list which provided the names, position titles, and monthly salaries for 23 individuals, as well as recent paystubs for each individual listed. The employee list included some position titles that do not appear on the organizational chart, including three sales assistant positions.

The Petitioner also introduced a discrepancy regarding the Beneficiary's dates of employment by providing a letter from ___ in which she stated that the Beneficiary has been the foreign entity's head of sales since January 2015, and not since November 2013, as stated at the time of filing. Further, we note that the Petitioner submitted a copy of the Beneficiary's employment contract at the time of filing which stated that she was hired as head of sales· on November 13, 2015, but stated in response to the RFE that she was hired as a production assistant and later served as a sales person prior to assuming her current position.

Here, while the record shows that the Beneficiary reports to the foreign entity's owner and has discretionary authority over sales staff, the evidence submitted does not establish that she is primarily focused on the broad goals and policies of the organization or its sales component or that she is relieved from significant involvement in the day-to-day operations of the business. Again, the Petitioner's claims that the Beneficiary's duties are primarily managerial or executive are not supported by sufficient evidence of her actual job duties or evidence the structure and allocation of work among employees of the department or function that she oversees. As such, the Petitioner has not established that the foreign entity employs the Beneficiary in an executive capacity.
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In the RFE, the Director noted that there was a discrepancy between the Petitioner's projected organizational chart and the list of projected employees and asked the Petitioner to clarify its hiring and staffing plans for the first year of operations. The Director requested additional information. regarding the Beneficiary's proposed duties, a new proposed organizational chart, a copy of a business plan outlining a time line of specific actions to be taken during the initial year of operations, a market study or feasibility study, and additional evidence of the size of the financial investment in the new office.

In response to the RFE, the Petitioner re-submitted the same business plan and provided a feasibility study. The feasibility study suggests that the Petitioner's business would be limited to retail ice cream sales and does not discuss any plans for wholesale distribution of its products. The study states that it will hire two types of direct employees: a "store administrator" and "workers" who will be in charge of sales and will deal with supplies, equipment, and cash transactions. The feasibility study indicates that the Petitioner would outsource legal services, a food technologist, and an accountant.

Here, many of the Beneficiary's proposed job duties closely resemble those she currently performs abroad and provide little information regarding her proposed day-to-day duties. These deficiencies were discussed above and we will not repeat the same analysis here. Further, the Beneficiary's proposed U.S. duties include additional non-managerial duties such as analyzing and prospecting potential customers, conducting sales calls, customer tracking and preparing reports on sales, competition, and customers. The Petitioner bears the burden of documenting what portion of the Beneficiary's duties will be managerial or executive and what proportion will be non-managerial or non-executive.

The time line of actions to be taken during 2016 also raises questions regarding the Petitioner's ability to commence operations. The timeline does not include critical actions such as obtaining the necessary permits and training required to operate a food establishment or hiring employees, and it reflects that the company would not open for business until October 2014 at the earliest. Further, this timeline is not explained or substantiated in the feasibility study or the business plan. Given the unresolved inconsistencies in the Petitioner's statements regarding its business and hiring plans, the Petitioner has not met its burden to demonstrate the proposed nature of the entity, its organizational structure, and its financial goals.
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The record shows that the Petitioner has a three-year commercial lease for 820 square feet of space in Texas. The Petitioner submitted a floor plan and color photographs of the premises, evidence of its rent payments, and a letter from its landlord confirming its tenancy. The Petitioner signed the lease more than two months prior to the filing of the petition. The Director determined that the amount and type of space secured did not appear sufficient based on the space requirements set forth in the Petitioner's business plan and the number of employees depicted in its proposed organizational charts. The Director also found that there were discrepancies in the size of individual rooms within the premises when comparing the floorplan to statements made by the Petitioner. The Director concluded that the space appeared to be insufficient to operate a wholesale and retail business with the projected number of employees.

Upon review of the totality of the evidence, we will withdraw the Director's decision with respect to this basis for denial. The Petitioner submitted evidence that it has signed a commercial lease for premises that would be suitable for the operation of a small retail business such as an ice cream parlor. We agree with the Director's finding that the premises do not appear to be sufficient for the claimed number of proposed employees or a wholesale business operated in conjunction with the retail business as outlined in the business plan and proposed organizational chart. However, as discussed above, the Petitioner has submitted conflicting evidence regarding the exact scope of the business, the number, and type of staff to be hired. Those deficiencies have been discussed above and prevent us from concluding that the new office would support a managerial or executive position within one year. The feasibility study, for example, indicates that the Petitioner would operate a retail ice cream parlor and would hire a store manager and lower-level workers and appears to be more realistic in comparison to the organizational chart showing that the Petitioner will hire nearly all managerial staff. The leased premises appear sufficient for the Petitioner to engage in retail ice cream sales, a line of business it has consistently claimed it will pursue.

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AAO’s Decision Date:  12/06/2016

Director’s Decision Date:

RFE Date:

Date of Filing:

Matter of C-G- LLC, ID# 108728 (AAO Dec. 6, 20 16)

Appeal of L-1A Intracompany Transfer of Executive and Managers, Form I-129, Petition for a Non-Immigrant Worker

Foreign Country:

U.S. State of Operation:

Type of Company: gas station and convenience store business

Type of Employment/Job Title: General Manager

New Office or Existing Office:

Number of Employees: Claimed 4, but docs showed only 2-part time

Service Center: Vermont

Decision: The appeal is dismissed.

Site Link: https://www.uscis.gov/sites/default/files/err/D7%20-%20Intracompany%20Transferees%20(L-1A%20and%20L-1B)/Decisions_Issued_in_2016/DEC062016_01D7101.pdf

Issues & Facts:

The Director concluded that the Petitioner did not establish that: (1) it has a qualifying relationship with the Beneficiary's foreign employer; (2) the Beneficiary would be employed in the United States in a managerial or executive capacity; and (3) the Beneficiary has been employed abroad in a managerial or executive capacity for at least one continuous year in the three years preceding the filing of the petition, or that his prior experience qualifies him to perform the proposed duties in the United States.

The Director observed that, according to the Petitioner's tax return, the Beneficiary and another individual own the U.S. company, which was inconsistent with the Petitioner's claim that it is a subsidiary of the foreign entity. In response, the Petitioner stated that the Beneficiary is an owner of both the U.S. and foreign entities. The Petitioner emphasized that it submitted its articles of organization which identify the Beneficiary as its managing member, and stated that " [t]he fact that tax returns for the Company list ___ is purely an accounting/tax issue about who derives income/profits from the Company."
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The Petitioner submitted a proposed organizational chart showing the Beneficiary's proposed position of general manager as the company' s senior-most position. The chart shows that he would directly supervise an accounting manager ___ who would in turn supervise a customer service manager __ and a sales manager ___. Finally, the chart shows "administrative staff' reporting to ___. As evidence of wages paid to employees, the Petitioner provided copies of its IRS Form 941, Employer's Quarterly Federal Tax Return, and Florida quarterly wage reports for the last quarter of 2014 and the first two quarters of 2015. These documents show that the Petitioner hired ___ and ___ in December 2014 and that they have consistently earned $1151.15 and $2040.74, respectively, per quarter. These wages average to $88.15 and $156.98 on a weekly basis.

In the RFE, the Director requested a more detailed description of the Beneficiary's duties along with a breakdown of the amount of time he would spend on specific tasks. The Director also asked for a more detailed organizational chart, information regarding the duties, educational level and salary for all U.S. employees, and evidence of wages paid to employees for all four quarters of 2015.

Here, while the evidence shows that the Beneficiary would occupy the senior-most position in the Petitioner's organizational hierarchy, the record does not support a finding that he would primarily perform managerial or executive duties. The Petitioner provided a list of 12 duties at the time of filing. Several of these were vague and focused on the Beneficiary's level of authority rather than on the specific tasks he would perform. For example, the Petitioner stated that he will be "acting as the senior most executive" with "broad discretionary" authority and power over all types of decisions, as well as "serving as the final decision maker in all day-to-day executive operations ... including financial, operational, tactical and strategic missions." Conclusory assertions regarding the beneficiary's employment capacity are not sufficient.

In response to the Director's request for a more detailed description including the amount of time the Beneficiary allocates to specific tasks, the Petitioner re-submitted the same list of 12 duties, along with a condensed list of five duties which would account for 90% of the Beneficiary's time. This breakdown of the Beneficiary's duties was not responsive to the Director's request for additional details regarding his proposed daily tasks and do not provide any further insight into what he would primarily do on a day-to-day basis within the context of the Petitioner's business. For example, the Petitioner stated that the Beneficiary would spend 20% of his time overseeing the sales, human resources, finance, and operations departments. However, the record shows that the Petitioner is a retail operation with two part-time employees; there is no evidence that the company has four distinct departments for the Beneficiary to oversee. The Petitioner stated that the Beneficiary will "approve budgets" and "approve marketing plans" but did not identify who would prepare budgets and marketing plans for his approval.
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Petitioner provided credible payroll documentation corroborating the Beneficiary' foreign employment for well over one year, an organizational chart showing his supervision of subordinate supervisors and a total of approximately ten staff, and payroll records corroborating the employment of the individuals named in the organizational chart. Reviewing the submitted position description in light of the totality of the evidence, we find that the Petitioner established by a preponderance of the evidence that the Beneficiary performed primarily managerial duties and had sufficient staff to relieve him from significant involvement in the day-to-day operations of the company. Further, the evidence shows that the foreign entity operates a retail automobile parts business. While the Petitioner is not involved in exactly the same type of business, we find no reason to doubt that his experience with the foreign entity would qualify him to manage a gas station and convenience store business in the United States. In fact, the record contains evidence that the Beneficiary has already completed training related to the operation of a gas station as required by the State of Florida.

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AAO’s Decision Date: 12/09/2016

Director’s Decision Date:

RFE Date:

Date of Filing:

Matter of R-H-, Inc., ID# 105417 (AAO Dec. 9, 20 16)

Appeal of L-1A Intracompany Transfer of Executive and Managers, Form I-129, Petition for a Non-Immigrant Worker

Foreign Country:

U.S. State of Operation:

Type of Company: a retail installment company

Type of Employment/Job Title: General Manager

New Office or Existing Office: New Office

Number of Employees: 3

Service Center: Vermont

Decision: The appeal is dismissed

Site Link: https://www.uscis.gov/sites/default/files/err/D7%20-%20Intracompany%20Transferees%20(L-1A%20and%20L-1B)/Decisions_Issued_in_2016/DEC092016_01D7101.pdf

Issues & Facts:

The Director denied the petition determining that the Petitioner did not have the organizational complexity to support four full-time supervisory employees, the chief executive, the proffered position of general manager, a sales manager, and a collections manager, with only three operational employees.

The Petitioner here has submitted a broad overview of the Beneficiary's duties. For example, the Petitioner indicates that the Beneficiary will spend 40 percent of his time directing, planning, and providing assistance to first-line supervisors. The Petitioner does not further elaborate on what specific tasks will be involved in these tasks. Additionally, it is not clear what tasks the Beneficiary will perform when ensuring compliance with the Petitioner's code of conduct and when meeting with the chief executive. This description does not convey an understanding of the Beneficiary's day-to-day duties but rather recites vague job responsibilities and broadly-cast business objectives. The actual duties themselves will reveal the true nature of the employment.

As the Director determined, the Petitioner has not established that either the sales manager or the collections manager will primarily supervise or manage other employees. For example, while the Petitioner claims that the sales manager will perform tasks through other staff, the Petitioner employed only one other sales associate when the petition was filed. Accordingly, the sales manager, rather than supervising or managing the work of other employees, would necessarily be performing the sales function. Similarly, the collections manager with no subordinate employees would necessarily be performing the collection duties outlined by the Petitioner. Accordingly, when the petition was filed, the Beneficiary at most would be a first-line supervisor of non-managerial, non-supervisory employees.

The record also does not establish that the sales manager and collections manager positions are professional positions. To determine whether the Beneficiary manages professional employees, we must evaluate whether the subordinate positions require a baccalaureate degree as a minimum for entry into the field of endeavor

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AAO’s Decision Date: 12/12/2016

Director’s Decision Date:

RFE Date:

Date of Filing: 01/27/2016

Matter of M-USAB- Corp, ID# 40066 (AAO Dec. 12, 2016)

Appeal of L-1A Intracompany Transfer of Executive and Managers, Form I-129, Petition for a Non-Immigrant Worker

Foreign Country: Brazil

U.S. State of Operation:

Type of Company: Supplier of carbon and graphite products for electrical manufacturing industry

Type of Employment/Job Title: Key account manager

New Office or Existing Office:

Number of Employees: 946 in the US

Service Center: Vermont

Decision: The appeal is dismissed

Site Link: https://www.uscis.gov/sites/default/files/err/D7%20-%20Intracompany%20Transferees%20(L-1A%20and%20L-1B)/Decisions_Issued_in_2016/DEC122016_01D7101.pdf

Issues & Facts:

Petitioner did not establish that the Beneficiary would act in a managerial or executive capacity.

In denying the petition, the Director stated that the evidence indicated that the Beneficiary, in his proposed role as a key account manager, would perform the tasks necessary to provide services to customers and that he would be not primarily perform qualifying managerial or executive duties.

In its appeal, the Petitioner contends that the Beneficiary will manage an essential function of the organization "critical to the success of the company." The Petitioner asserts that it regularly engages outside service providers to perform sales and marketing duties within the Beneficiary's function and states that the Director overlooked evidence substantiating this. It states that the Beneficiary will influence decision making at the highest level with respect to the development of the U.S. market and asserts that he will not handle day-to-day sales and marketing and other non-managerial functions.

In the current matter, the Petitioner has provided a duty description for the Beneficiary which indicates that he would primarily devote his time to performing non-qualifying operational duties. For instance, the duty description refers to the Beneficiary's performance of several duties that cannot be classified as managerial, including following up on sales leads, developing new sales opportunities and existing key OEM accounts, intervening in customer service, scheduling sales calls, assisting customers with training, supporting product launches, providing sales forecasts to sales management, calling on assigned accounts, supporting design and technical teams, and preparing proposals. Further, the duties submitted in response to the RFE indicate that the Beneficiary will spend half of his time calling on accounts, managing all sales and support, and preparing proposals. In sum, despite the Beneficiary's asserted management of independent contractor sales representatives, a duty ·not reflected in the position description, his duties suggest that he would primarily devote his time to non-managerial tasks.

In contrast, the Petitioner provides little detail regarding the Beneficiary's claimed qualifying tasks. As previously mentioned, the Petitioner asserts that the Beneficiary supervises and oversees independent contractor sales representatives. However, this responsibility is not reflected in his duty description. Further, to the extent that the Beneficiary's duties include qualifying tasks these are not indicative of significant discretionary authority. For instance, the Beneficiary's duties reflect that he will "support strategic planning" and "influence" decision making at the highest level with respect to U.S. market development, but not lead or formulate strategic planning or actually make decisions at the highest level as claimed. Otherwise, the Petitioner has submitted few specific examples or supporting documentation to corroborate his performance of qualifying managerial tasks.

We do not find that the Petitioner has submitted sufficient evidence to establish that the Beneficiary would be employed primarily as a function manager. First, as discussed previously, the Petitioner has provided a duty description indicating that he will be primarily focused on non-qualifying operational tasks. While performing non-qualifying tasks necessary to produce a product or service will not automatically disqualify the Beneficiary as long as those tasks are not the majority of the beneficiary's duties, the Petitioner still has the burden of establishing that the beneficiary will "primarily" performing managerial duties.

Further, the Petitioner has not sufficiently documented its assertion that the Beneficiary would be primarily relieved of non-qualifying tasks by independent contractors. For instance, the Petitioner provided a list of seven firms and their named representatives, but only provides an agreement specific to one of these firms. In addition, the Petitioner provided no other supporting documentation to corroborate the frequency with which these independent contractors are engaged by the company, evidence of their supervision by the Beneficiary, evidence of his delegation of non-qualifying tasks to these contractors, or evidence of them relieving him from the performance of these non-qualifying duties. Indeed, as we stated, the Beneficiary's duties do not reflect that he devotes significant time to directing and overseeing independent contractor sales and technical representatives. In fact, the submitted agreement appears to indicate that these contractors have wide ranging independence and discretion to carry out their duties without direction from the Petitioner and its sales managers. Therefore, the Petitioner has not substantiated the assertion that independent contractors would relieve the Beneficiary from the performing the non-qualifying tasks prominently reflected in his duty description.

Here, the submitted organizational chart reflects that the Beneficiary is one of seven regional account managers reporting to the US OEM sales manager, who in turn reports to the VP OEM sales. As such, it is not clear without further explanation or evidence how the Beneficiary oversees a function or that he functions at a senior level within the organizational hierarchy or with respect to the function managed. In fact, the organizational chart indicates otherwise, showing that he acts in a subordinate position within the OEM sales function, Further, as noted, the Beneficiary's duties suggest that he will perform many lower level operational tasks which are not reflective of higher level discretionary authority over an essential function of the organization. For instance, the Petitioner states that the Beneficiary will issue reports to sales management and influence higher-level decisions making, but not act as sales management, or actually make these higher level decisions.
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AAO: Qualified position abroad.

For reasons similar to those discussed in the previous section, the Petitioner has not demonstrated that the Beneficiary acts in a managerial capacity abroad. Again, the Petitioner has provided a duty description for the Beneficiary which indicates that he allocates a significant portion of his time to performing non-qualifying operational duties. The Petitioner only reinforces this conclusion by providing the Beneficiary's resume which also reflects his engagement in several non-qualifying operational tasks.

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AAO’s Decision Date: 12/14/2016

Director’s Decision Date:

RFE Date:

Date of Filing:

Matter of A-E-S- Inc., ID# 105233 (AAO Dec. 14, 2016)

Appeal of L-1A Intracompany Transfer of Executive and Managers, Form I-129, Petition for a Non-Immigrant Worker

Foreign Country:

U.S. State of Operation:

Type of Company: An engineering solutions consulting firm

Type of Employment/Job Title: President/Head of US Operations

New Office or Existing Office: 2

Number of Employees:

Service Center: California

Decision: The appeal is dismissed

Site Link: https://www.uscis.gov/sites/default/files/err/D7%20-%20Intracompany%20Transferees%20(L-1A%20and%20L-1B)/Decisions_Issued_in_2016/DEC142016_01D7101.pdf

Issues & Facts:

Did not establish that the Beneficiary would be employed in a managerial or executive capacity under the extended petition.

In a letter submitted at the time of filing, the Petitioner stated that the Beneficiary will continue to serve in the "senior-executive level position of President and Head of U.S. operations" responsible for establishing sales, marketing and business development goals, as well as setting policies and holding discretionary decision-making authority in all corporate matters. In addition, the Petitioner explained that the Beneficiary has the authority to negotiate with potential clients, sign off on contract terms, to set and control the Petitioner's budget, to review and approve business development proposals, and to develop work plans and staffing requirements for each project.

The Petitioner explained that, although the Beneficiary's previous L-lA petition was approved in December 2014, "he was only able to enter the U.S. on March 20, 2015," and therefore had just over six months to implement the business plan and recruit staff. The Petitioner provided evidence that it had placed a newspaper advertisement seeking applicants for the positions. of office assistant, accounts executive, and various engineering positions.

The Petitioner submitted an organizational chart depicting the Beneficiary as president and head of the U.S. operations, reporting to the board of directors. The chart shows that he directly supervises ___ technical manager - business development (USA), the head of delivery (offshore), and "finance and admin external consultants." Further, the chart shows that a lead engineer ___ with two subordinates ___ reports directly to and indirectly to ___ the head of delivery (offshore) and a client engineering manager. The Petitioner provided a payroll summary reflecting its payment of salaries to the Beneficiary ___ and through August 2015. The Director issued a request for evidence (RFE) asking for additional information regarding the Beneficiary's proposed duties under the extended petition, a more detailed organizational chart, evidence of wages paid to employees for the fourth quarter of 2015, copies of all IRS Forms W-2 and 1099-MISC issued in 2015, copies of employment agreements for any newly hired employees, and information regarding the job duties, salaries and educational requirements for positions subordinate to the Beneficiary.

Petitioner has not adequately documented staff to assist the Beneficiary with lower-level sales, marketing, business development and brand management activities mentioned in his position description or employees who perform the day-to-day administrative and finance-related duties of the company. Without this information, we cannot determine what specific tasks he would perform to "monitor banking and financial activities," to "review progress of sales roles," to "review budgets and expenses," or to "coordinate" business development and sales activities through other staff. Moreover, the submitted examples of the Beneficiary's work include e-mail correspondence which indicates that he personally reaches out to potential new clients with the goal of securing new projects for the company, rather than assigning these tasks to sales or business development staff.

The Petitioner stated on Form I-129 that it had three U.S. employees at the time of filing, but has documented the employment of only the Beneficiary and one other employee, whose job title has been stated as "Technical Manager - Business Development USA," "Business Development Manager" and "Sales Manager."
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AAO’s Decision Date: 12/14/2016

Director’s Decision Date:

RFE Date:

Date of Filing: 03/22/2016

Matter of B-M-C- Corp., ID# 73633 (AAO Dec. 14, 2016)

Appeal of L-1A Intracompany Transfer of Executive and Managers, Form I-129, Petition for a Non-Immigrant Worker

Foreign Country:

U.S. State of Operation:

Type of Company: A jewelry designer, manufacturer, and distributor

Type of Employment/Job Title: Business Development/Director of Operations

New Office or Existing Office:

Number of Employees:

Service Center: Vermont

Decision: The appeal is dismissed

Site Link: https://www.uscis.gov/sites/default/files/err/D7%20-%20Intracompany%20Transferees%20(L-1A%20and%20L-1B)/Decisions_Issued_in_2016/DEC142016_02D7101.pdf

Issues & Facts:

(1) the Petitioner does not have a qualifying relationship with a foreign entity; and (2) the Petitioner did not employ the Beneficiary abroad in the capacity of an employee.

Petitioner stated that "[s]ince November 2014, [the Beneficiary] has been working [] from stores located on board operating in international waters, wholly outside the United States." In support of the petition, the Petitioner provided a cover letter indicating that the Beneficiary's former position was that of a cruise sales manager of designer events. The Petitioner also provided an organizational chart, which depicts the Beneficiary's current and proposed positions within the organization. In a request for evidence (RFE), the Director instructed the Petitioner to provide documentation, such as payroll and personnel records, to establish that the Beneficiary was employed abroad for at least one year during the three years prior to the filing of the petition.

In response, the Petitioner provided a statement claiming that It previously provided "a signed supporting letter" stating that the Petitioner has employed the Beneficiary abroad "since May 2012 and since November 2014 on cruise ships in international waters." While the Petitioner claimed that it previously submitted 24 months of the Beneficiary's invoices, we note that such invoices were neither included in the Petitioner's list of exhibits nor were they found to be among the Petitioner's actual submissions. Further, while the Petitioner claimed that it was providing another 12 months of invoices from the Beneficiary to the Petitioner for services rendered, the evidence that was actually submitted included copies of bank wire transfers and deposit transactions (into the Beneficiary's checking account), several of which were accompanied by photocopies of checks that the Petitioner issued to the Beneficiary in varying amounts ranging from $6000 to $7455. As the Petitioner did not provide the actual invoices that corresponded to the funds issued to the Beneficiary, we have no way of determining which factors caused the amounts to vary. In addition, we note that the funds were issued sporadically, not on a consistent weekly, bi-weekly, or monthly basis. Thus, while some of the fund transfer documents show payments posted to the Beneficiary's account in the beginning or middle of a month, a number of the bank documents show funds issued at the end of a month or multiple times in one month; and no documents were provided to account for the Beneficiary's receipt of funds in July, October, or November of 2015.

The Director denied the petition, concluding that the Petitioner did not provide sufficient evidence to establish that the Beneficiary has been an employee of its organization. The Director noted that the fund transfer receipts showing payments made to the Beneficiary do not show that the Petitioner withheld taxes from the Beneficiary's earnings. The Director determined that holding the Beneficiary responsible for paying taxes on her earnings was an indication that the Beneficiary did not provide services to the Petitioner as an employee of the organization.

Further, while the Petitioner strongly relies on the Beneficiary's bank documents to show the Beneficiary's receipt of funds in exchange for services that she provided, the Petitioner admitted that the Beneficiary's compensation is subject to her submission of invoices. As noted above, despite the Petitioner's claim that such invoices were submitted to support the initial filing of the petition, the Petitioner neither included them in its list of supporting exhibits, nor provided them for review with its other supporting evidence. We also find that the varying amounts of the payments the Petitioner issued to the Beneficiary for her services as well as the sporadic time intervals that passed between ·payments were indicative of work performed in the capacity of a contracted worker rather than that of an employee. Absent other supporting evidence, such as an employment contract outlining the terms and conditions of the employment and the amount of compensation for services to be provided, the mere fact that the Beneficiary was paid in exchange for her services is not. sufficient to establish that she was an employee, rather than a contractor, of the U.S. organization.

In light of the above, we concur with the Director's ultimate conclusion and while we find that the Beneficiary's withholding of taxes on her earnings cannot serve as the sole basis for determining whether the Beneficiary was an employee of the U.S. entity, it can and should serve as part of a comprehensive analysis that takes into account all relevant factors which, together, determine whether the Beneficiary provided services to the Petitioner in the capacity of an employee. Therefore, while we do not base our finding on any one factor, we find that the cumulative effect of the multiple factors discussed above, including the Beneficiary's personal responsibility for withholding taxes on her earnings, precludes the Petitioner from establishing that its payment of compensation in exchange for services resulted in the creation of an employer-employee relationship between the Petitioner and the Beneficiary.
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In the RFE, the Director noted that the Petitioner did not provide supporting evidence demonstrating , how it relates to ___ and further pointed out that the latter company has several more owners than the Petitioner.1 The Director further stated that the Petitioner must provide evidence to establish that it is related to a qualifying foreign entity and show that such entity continues to do business, regardless of whether the existing foreign entity employed the Beneficiary during her 'Claimed period of employment abroad ownership scheme was not clear.
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AAO’s Decision Date: 12/14/2016

Director’s Decision Date:

RFE Date:

Date of Filing: 12/17/2015

Matter of J- Corp., ID# 78131 (AAO Dec. 14, 2016)

Appeal of L-1A Intracompany Transfer of Executive and Managers, Form I-129, Petition for a Non-Immigrant Worker

Foreign Country:

U.S. State of Operation:

Type of Company: Clothing retailer

Type of Employment/Job Title: President

New Office or Existing Office: continue L-1

Number of Employees: 10

Service Center: Vermont

Decision: The appeal is dismissed

Site Link: https://www.uscis.gov/sites/default/files/err/D7%20-%20Intracompany%20Transferees%20(L-1A%20and%20L-1B)/Decisions_Issued_in_2016/DEC142016_03D7101.pdf

Issues & Facts:

(1) it has been doing business; (2) the Beneficiary will be employed in the United States in a managerial or executive capacity; (3) the Petitioner is adequately staffed to support the Beneficiary in a managerial or executive capacity; and (4) the Petitioner has the financial ability to do business and pay its employees.

In the present matter, the Petitioner filed the Form I-129 on December 17, 2015 and therefore must establish that it has been doing business for one year prior to such date, i.e., December 17, 2014. In support of the petition, the Petitioner provided a supporting statement from the Beneficiary explaining the various hurdles she has experienced as a business owner in getting her business operational. She described a scenario in which she expected, but was unable, to sell goods for $500,000, which she planned to use towards "the company's development." She also referred to unfair business dealings and the death of her business partner when discussing the hardships her business has faced during its initial phase of operation. The Beneficiary further stated that she was unable to sell goods and get cash flow coming in as expected. The Beneficiary claimed that as a result of successfully having sold her goods at retail exhibitions, she decided to focus on opening retail stores in 2015 and ultimately opened a store at a mall location in April 2015. The Beneficiary anticipated opening stores at additional locations and being able to "bring a stable income in 2016."

The Petitioner did not, however, provide any invoices or other corroborating documents to support the Beneficiary's claim that certain transactions within the Petitioner's bank accounts represented sales activity. Although the bank statements also contain the Petitioner's name in the description of the transaction, there is no corresponding documentation that would allow us to determine the source(s) of the deposits. To the extent that the Beneficiary's deposits did not stem from the sales of the Petitioner's merchandise, they would not be considered as part of the Petitioner's ongoing business transactions.
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Director pointed to an inconsistency between the number of employees the Petitioner claimed in its Form I-129 and the number of Form I-9s it submitted, finding that the inconsistency precludes a determination as to the number of employees the Petitioner had m December 2015 when the petition was filed.

The Petitioner did not comply with the Director's RFE instructions asking that time allocations be applied to each of the Beneficiary's proposed job duties. It is noted that failure to submit requested evidence that precludes a material line of inquiry shall be grounds for denying the petition.
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AAO: In addition, while not addressed by the Director, two remaining issues to be examined are (1) whether the Petitioner established that the Beneficiary and the foreign entity had an employer employee relationship at the time of the Beneficiary's claimed employment abroad and (2) whether the Petitioner would have such a relationship with the Beneficiary in the United States.

In the matter at hand, the record indicates that the Beneficiary owns the foreign entity as a sole proprietor, and that the Beneficiary wholly owns the Petitioner. Thus, by virtue of owning and controlling both the Petitioner and the foreign entity, and absent other evidence relevant to an employer-employee analysis, the record does not establish that the Beneficiary had or would have the requisite employer-employee relationship with either entity. Therefore, the appeal will be dismissed for this additional reason.

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AAO’s Decision Date: 12/15/2016

Director’s Decision Date:

RFE Date:

Date of Filing: 12/30/2014

Matter of KLNB-, LLC, ID# 96612 (AAO Dec. 15, 2016)

Appeal of L-1A Intracompany Transfer of Executive and Managers, Form I-129, Petition for a Non-Immigrant Worker

Foreign Country: Japan

U.S. State of Operation:

Type of Company: Japanese restaurant and beach wear e-commerce business

Type of Employment/Job Title: CEO

New Office or Existing Office: New Office

Number of Employees:

Service Center: Vermont

Decision: The appeal is dismissed

Site Link: https://www.uscis.gov/sites/default/files/err/D7%20-%20Intracompany%20Transferees%20(L-1A%20and%20L-1B)/Decisions_Issued_in_2016/DEC152016_01D7101.pdf

Issues & Facts:

The Director based the denial on three grounds: (1) the Beneficiary was not an employee working in full-time status at a qualifying entity abroad; (2) the Beneficiary was not employed abroad in a managerial or executive capacity; and (3) the Petitioner did not submit sufficient evidence to support the claim that it would employ the Beneficiary in the United States in an executive capacity within one year of approval of the petition.

The Director denied the petition, concluding that the Petitioner did not establish that the Beneficiary was a full-time employee of the foreign entity. The Director relied on the consultant agreement, noting that its terms required the Beneficiary to submit a receipt for services rendered in order to receive compensation, referred to the Beneficiary as an independent contractor, and made the Beneficiary responsible for paying taxes on his earnings. The Director further pointed to additional findings that resulted from reviewing the Beneficiary's nonimmigrant visa application, dated March 25, 2013, in which the Beneficiary identified his current employer as ___and indicated that his employment with ___ the Petitioner's foreign parent entity, took place from 2002 to 2006. The Director found that this inconsistency further precluded the finding that the Beneficiary was employed abroad by the Petitioner's parent entity. (DS-160)

On appeal, the Petitioner offers an explanation to overcome the inconsistency regarding the employment abroad, claiming that the Beneficiary was the foreign entity_' s shareholder until 2006 when he sold his shares "and was further elected to be the company's administrator" pursuant to terms cited in the amended Articles of Incorporation, dated January 2, 2006, which documents the Beneficiary's transfer of shares in the foreign entity to ___. The Petitioner further claims that subsequent to the Beneficiary's removal as shareholder, a consultant agreement was put in place to provide for his new role as business administrator such that would allow him the "discretion and reach in running the business."

First, with regard to the claims made by the foreign entity's shareholder and franchisor described at Nos. 1 and 2 above, respectively, these statements alone are not sufficient to establish the Beneficiary’s claimed employee status. We also point to the documents in No. 3 above, which include the names of the foreign entity's employees. The fact that the Beneficiary was not listed in the document as someone to whom the foreign entity paid compensation for services rendered undermines the Petitioner's claim that the Beneficiary was an employee of the foreign entity during the time period in question.

It is unclear why the Petitioner did not provide the actual payroll documents or other contemporaneous evidence to support the claims made in these statements.

Finally, even if we were to rely on the consultant agreement as evidence of the Beneficiary's relationship with the foreign entity, such document is not sufficient to establish that the Beneficiary was an employee of the foreign entity as required by relevant statutory provisions.

In the present matter, absent evidence beyond the Petitioner's claims and the statements of other third parties, an assessment of the terms of the consultant agreement indicate that the Beneficiary was not an employee of the foreign entity. Rather, the claim that the Beneficiary was an employee is undermined by the following: (1) the Beneficiary's compensation is subject to the submission of a receipt in which the Beneficiary is required to list the services that he rendered; (2) the Beneficiary is responsible for declaring his wages to state and federal bodies for tax purposes as well as paying any licensing fees as may be required; and (3) the agreement expressly classifies the Beneficiary as an independent contractor and makes no mention of any benefits package outside of compensation for any services rendered.

The record also does not resolve the inconsistency between the Petitioner's claim that the Beneficiary stayed on with the foreign entity in the capacity of administrator and the foreign entity's organizational chart which identifies the Beneficiary as its COO. Lastly, we find that the Petitioner did not adequately address the above described inconsistency between _the claims made in support of the petition and the information provided by the Beneficiary in his nonimmigrant visa petition with regard to his employment abroad. In the denial, the Director expressly informed the Petitioner about the inconsistency, pointing out that the Beneficiary's responses to questions posed in the visa petition regarding the Beneficiary's past and current employment were inconsistent with the Petitioner's current claim that the Beneficiary has been and continues to be employed by the qualifying foreign entity since 2002 without interruption.
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The Petitioner also submitted a Business Plan, which includes plans for opening a Japanese restaurant and operating a women's beachwear retail business; the Petitioner stated that the ecommerce platform for the latter business is currently launched and selling merchandise via the internet. Section 2.2 of the business plan includes a startup summary, which indicates that the Petitioner will need $65,000 to cover initial operating costs, which will include the following: legal, consulting, rent, insurance, computer, furniture, phones, printer, office supplies, stationary, internet, and restaurant sign-on royalty. The Petitioner indicated that an additional investment of $300,000 would be made in 2015. The Petitioner provided a more detailed cost breakdown at section 8.1 of the Business Plan, which shows that the foreign entity plans to invest $200,000 and the Beneficiary plans to invest $100,000 toward the initial required investment.

In denying the petition the Director concluded that the Petitioner's submissions were not sufficient to establish that the Petitioner would support the Beneficiary in an executive capacity within one year of the petition's approval. The Director stated that the Petitioner did not provide evidence to show that a $300,000 investment had been made (in line with the Petitioner's initial projections) or that the foreign entity has the financial ability to pay the Beneficiary and begin doing business in the United States. Lastly, while the Director acknowledged the Petitioner's submission of bank statements and an investment timeline, she noted that the bank statements do not disclose the source of the deposited funds. She also found that the timeline is more of an outline showing the Petitioner's needs, rather than proof that the necessary funds will be available and at the Petitioner's disposal. Lastly, the Director noted that the timeline does not identify which positions it looks to fill or state the specific number of employees it looks to hire.

Petitioner provided deficient information regarding its projected hiring timeline, thereby precluding a meaningful understanding of whether the Petitioner would have the staffing capacity to elevate the Beneficiary to an executive level.
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AAO: sufficient physical premises: Finally, while not addressed in the Director's decision, we find that the Petitioner did not provide sufficient evidence to establish that it met the regulation at 8 C.F.R. § 214.2(1)(3)(v)(A), which requires every new office petitioner to demonstrate that it has secured sufficient physical premises to house the new office where it seeks to employ its beneficiary. Although the record shows that the Petitioner submitted a signed business lease, which was in effect at the time of filing, page three of the lease expressly states that its use will be "for the sole purpose of conducting general office activities and for the retailing of swimming apparel." Given that the Petitioner indicated at Part 5, No. 11 of the Form I-129, that it intended to operate a Japanese restaurant and an e-commerce beach wear retail business, a lease that would only allow meet the needs of a retail operation would not be deemed sufficient for the intended purpose of the Petitioner's business, particularly in light of the Petitioner's RFE response statement, where it stated that "it is important to state that the beach clothing business is currently in stand by [sic] mode .... " Further, we note that while the Petitioner ultimately submitted a lease that was sufficient to house its planned restaurant business, the lease was executed on June 9, 2015 and therefore was not in effect in December 2014 when the petition was filed.
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AAO’s Decision Date: 12/21/2016

Director’s Decision Date:

RFE Date:

Date of Filing:

Matter of S- Inc., ID# 118535 (AAO Dec. 21, 2016)

Appeal of L-1A Intracompany Transfer of Executive and Managers, Form I-129, Petition for a Non-Immigrant Worker

Foreign Country: Canada

U.S. State of Operation: Michigan

Type of Company: Trucking and highway transportation business

Type of Employment/Job Title: President/Manager

New Office or Existing Office: New Office

Number of Employees: 1 (but says will be 10)

Service Center: Vermont

Decision: The appeal is dismissed

Site Link: https://www.uscis.gov/sites/default/files/err/D7%20-%20Intracompany%20Transferees%20(L-1A%20and%20L-1B)/Decisions_Issued_in_2016/DEC212016_01D7101.pdf

Issues & Facts:

The Director concluded that the evidence of record did not establish that: (1) the Petitioner has secured sufficient physical premises to house the new office; (2) that the new office would support a managerial or executive position within one year of the approval of the petition; (3) the foreign entity has employed the Beneficiary in a managerial or executive capacity for one year in the three years preceding the filing of the petition; and, (4) the Beneficiary's foreign employer is doing business.
                
In denying the petition, the Director found that the Petitioner had conceded that it had not secured physical premises to house the new office as of the date of filing. The Director acknowledged the Petitioner's claim that it has a mail service, but noted that it did not provide any documentation in support of its claim. Further, the Petitioner has not provided sufficient information to establish that a residential location would be sufficient for the operation of its trucking and highway transportation business.
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The Petitioner did not provide a description of the Beneficiary's proposed job duties as president/manager, nor did it provide a business plan or other information describing the nature of the new office, the anticipated scope and organizational structure of the entity and its financial goals, or the size of the United States investment and the financial ability of the foreign entity to commence operations. The Petitioner did not submit a proposed chart for the new office or discuss its anticipated scope, organizational structure or financial goals, nor did it address the size of the U.S. investment.

Petitioner has not provided a timeline for hiring this staff, information regarding the employees' proposed duties, or their expected salaries. Further, the record contains no detailed business plan or financial projections to corroborate that it would be able to financially support the staffing plan depicted in the chart within one year.
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Here, as noted by the Director, the Petitioner provided no description of the Beneficiary's duties with the foreign entity prior to the denial of the petition and therefore did not meet its burden to establish that his duties are primarily managerial or executive nature. Rather, the Petitioner seemed to rely on the Beneficiary's claimed ownership of the foreign entity as evidence of his eligibility. Here, as noted by the Director, the Petitioner provided no description of the Beneficiary's duties with the foreign entity prior to the denial of the petition and therefore did not meet its burden to establish that his duties are primarily managerial or executive nature. Rather, the Petitioner seemed to rely on the Beneficiary's claimed ownership of the foreign entity as evidence of his eligibility.

Here, while the record shows that the Beneficiary owns and is the sole full-time employee of the foreign entity, the evidence submitted does not establish that he is primarily performing managerial or executive duties, supervising a subordinate staff of supervisory or professional employees, primarily focused on the broad goals and policies of the organization, or that he is relieved from significant involvement in the day-to-day operations of the business. Again, the Petitioner's claim that the Beneficiary's position is in a managerial or executive capacity is not supported by sufficient evidence of his actual qualifying job duties or evidence that the structure of the foreign entity can support a managerial or executive position.
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In the matter at hand, the record indicates that the Beneficiary wholly owns both the foreign entity and the petitioner. The record indicates that the Beneficiary assumed the top-most and likely only full-time position within the foreign entity's organization and that the same would be true of the Beneficiary's proposed position with the Petitioner. Thus, by virtue of owning and controlling both the Petitioner and the foreign entity, and absent other evidence relevant to an employer-employee analysis, the record does not establish that the Beneficiary had or would have the requisite employer-employee relationship with either entity.
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AAO’s Decision Date: 12/21/2016

Director’s Decision Date:

RFE Date:

Date of Filing:

Matter of T-T-C- Ltd., ID# 109092 (AAO Dec. 21, 2016)

Appeal of L-1A Intracompany Transfer of Executive and Managers, Form I-129, Petition for a Non-Immigrant Worker

Foreign Country: China

U.S. State of Operation:

Type of Company: A company engaged in glass-free 3D technology research, development and production

Type of Employment/Job Title:

New Office or Existing Office: Filed as existing office

Number of Employees: Plans to have 5-10 people in the future

Service Center: California Service Center

Decision: The appeal is dismissed

Site Link: https://www.uscis.gov/sites/default/files/err/D7%20-%20Intracompany%20Transferees%20(L-1A%20and%20L-1B)/Decisions_Issued_in_2016/DEC212016_02D7101.pdf

Issues & Facts:

Petitioner did not establish that the Beneficiary would be employed in a managerial or executive capacity in the United States.

The Director issued a request for evidence (RFE). The Director found that the Petitioner did not provide sufficient information regarding the percentage of time the Beneficiary would allocate to performing specific tasks or whether her day-to-day duties would be primarily managerial in nature. Further, the Director observed that, based on the submitted organizational chart, the record did not show that the company has a sufficient structure in place to support the Beneficiary in a managerial capacity, as it had not shown that any employees would be available to relieve her from involvement in the day-to-day duties necessary for the Petitioner to provide its goods and services.
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AAO’s Decision Date: 12/22/2016

Director’s Decision Date:

RFE Date:

Date of Filing: 01/01/2009

Matter of L-P-1-/E-, Inc., ID# 118464 (AAO Dec. 22, 2016)

Appeal of L-1A Intracompany Transfer of Executive and Managers, Form I-129, Petition for a Non-Immigrant Worker

Foreign Country: Venezuela

U.S. State of Operation:

Type of Company: A retailer and distributor of patio furniture and swimming pool and spa supplies and equipment.

Type of Employment/Job Title: President

New Office or Existing Office:

Number of Employees:

Service Center: Vermont

Decision: The appeal is dismissed.

Site Link: https://www.uscis.gov/sites/default/files/err/D7%20-%20Intracompany%20Transferees%20(L-1A%20and%20L-1B)/Decisions_Issued_in_2016/DEC222016_01D7101.pdf

Issues & Facts:

The Director concluded that the Petitioner did not submit sufficient evidence to establish the following: (1) it has a qualifying relationship with the Beneficiary's foreign employer; (2) the Beneficiary has been employed abroad in a managerial or executive capacity; and (3) the Beneficiary would be employed in the United States in a managerial or executive capacity.

The first issue to be addressed in this discussion is whether the Petitioner's franchise agreement precludes the Petitioner from establishing that it has a qualifying relationship with the Beneficiary's employer abroad.

In the present matter, the Director concluded that the Petitioner failed to establish that it has a qualifying relationship with the Beneficiary's employer abroad. This determination was based on a clause in the Petitioner's franchise agreement with the franchisor, which requires the Petitioner to remain open for business for a specified number of days per week. The Director concluded that this clause indicates that the Petitioner's owner lacks control over its operation and thus the Petitioner and the Beneficiary's employer abroad cannot be deemed as being similarly owned and controlled.

A review of the evidence of record indicates that the Petitioner submitted sufficient documentation to establish that a single individual - - owns and controls the Petitioner and the Beneficiary's employer abroad, thereby forming an affiliate relationship. See 8 C.F.R. 214.2(1)(1)(ii)(G) for definition of affiliate. While the Director properly pointed out that the terms of the franchise agreement provide certain limitations as to the manner in which the Petitioner would be able to run its retail operation, ultimate control of the petitioning entity remains with the individual who owns it. Therefore, we conclude that the foreign employer~ and the petitioning entity are similarly controlled and on the basis of our finding, we hereby withdraw the Director's conclusion regarding the issue of a qualifying relationship.
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The Director issued a request for evidence (RFE) asking the Petitioner to provide, in part, the following additional evidence: (1) an organizational chart showing the organizational structure and staffing levels for the foreign entity; (2) a list of job titles and job duties of the Beneficiary's subordinates; and (3) a letter from an authorized representative of the foreign entity describing the Beneficiary's job duties and the percentage of time allocated to each job duty. With regard to the job description, the Director stated that the Petitioner should state how the Beneficiary met each prong of the four-prong definition of executive capacity. The Director determined that the submitted job description for the Beneficiary lacked sufficient detail about the Beneficiary's specific daily job duties and thus precluded the finding that the Beneficiary was employed abroad in an executive capacity.

For instance, the claim that 30% of the Beneficiary's time was spent directing, supervising, and coordinating all of the foreign entity's administrative, operational, production, financial, and personnel matters does not provide -an adequate understanding of what underlying tasks those job responsibilities entailed and what role the foreign entity's support staff assumed in allowing the Beneficiary to meet those responsibilities. The statement from the authorized foreign representative provided no information as what is meant by administrative, operational, production, or financial matters; nor did the statement specify what actual tasks the Beneficiary performed with respect to these various functions. The letter also lacked an explanation of the Beneficiary's precise involvement in personnel matters, which is particularly confusing in light of an organizational chart, which indicates that the foreign entity's manager was charged with overseeing the company's lower-level personnel.

The Petitioner also neglected to address the Director's doubt as to whether the Petitioner had the staff to relieve the Beneficiary from having to be directly involved in preparing various reports, and performing marketing-related duties. While the Petitioner's RFE response includes employee job descriptions, which indicate that the operations manager is tasked with preparing sales reports and performance data, the operations manager's original job description indicates that the role of this position was limited to only reviewing financial statements and sales and activity reports, rather than actually creating such reports. The Petitioner did not provide evidence to establish that it would have had the ability to relieve the Beneficiary from having to carry out the administrative task of creating such reports at the time the petition was filed. The Petitioner also did not provide sufficient evidence to show that it had the capacity to relieve the Beneficiary from other administrative and operational duties, such as doing the Petitioner's bookkeeping, negotiating with suppliers of the merchandise sold to the Petitioner's customers, and marketing and advertising the Petitioner's retail operation.

In sum, we find that the Petitioner has not established that its organizational hierarchy at the time of filing was sufficient to elevate the Beneficiary's proposed position of president to that of an executive, despite his proposed top-most placement within the Petitioner's organizational hierarchy.
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AAO’s Decision Date: 12/22/2016

Director’s Decision Date:

RFE Date:

Date of Filing:

Matter of E-S-, LLC, ID# 76307 (AAO Dec. 22, 2016)

Appeal of L-1A Intracompany Transfer of Executive and Managers, Form I-129, Petition for a Non-Immigrant Worker

Foreign Country:

U.S. State of Operation:

Type of Company: a boutique hotel

Type of Employment/Job Title: Hotel manager

New Office or Existing Office:

Number of Employees:

Service Center:

Decision: 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.

Site Link: https://www.uscis.gov/sites/default/files/err/D7%20-%20Intracompany%20Transferees%20(L-1A%20and%20L-1B)/Decisions_Issued_in_2016/DEC222016_02D7101.pdf

Issues & Facts:

Petitioner did not establish that it has a qualifying relationship with the Beneficiary's employer abroad. The matter is now before us on appeal. In its appeal, the Petitioner submits objective documentary evidence corroborating the ownership schemes it illustrated in prior submissions.

Notwithstanding their findings with regard to the Director's decision, we find that the Petitioner has not provided sufficient evidence to establish that the Beneficiary was employed abroad for the statutorily required time period or that the Beneficiary's employment abroad and the proposed employment with the U.S. entity has been and would be, respectively, in a managerial capacity as claimed.

The first issue to be addressed in this discussion is the Beneficiary's employment abroad. The Petitioner filed the instant Form I-129 on September 18, 2015 claiming that the Beneficiary was employed abroad by from "10/04/2012 [to the] Present." However, during the course of attempting to verify the Petitioner's claim, we encountered contradictory evidence. Namely, our review of the Beneficiary's nonimmigrant visa application, filed on March 31, 2013, shows that the Beneficiary indicated that he was a student at the and that he was a "half time worker," but did not list his employer.

The information that the Beneficiary provided on an unrelated nonimmigrant visa application indicates that the Beneficiary may not have been employed abroad by a qualifying entity on a fulltime basis during the time period in question, and thus may not meet the provisions cited at 8 CFR 214.2(1)(3)(iii), which require the Petitioner to provide evidence that the Beneficiary has at least one continuous year of full-time employment abroad with a qualifying entity within the three years that preceded the filing of the petition.
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Next, with regard to the Beneficiary's proposed employment with the petitioning U.S. entity, the job description that the Petitioner provided in response to the Director's request for evidence indicates that the Beneficiary would allocate his time primarily to operational and administrative tasks, rather that tasks that are primarily within a managerial capacity. Here, the Beneficiary's job description indicates that the Beneficiary's job duties would include supervising a nonprofessional staff of chambermaids and receptionists, overseeing guest check-in and check-out procedures and following up with hotel maintenance, addressing the Petitioner's IT needs, maintaining communications with suppliers and service providers, and ensuring proper inventory of supplies.
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AAO’s Decision Date: 12/29/2016

Director’s Decision Date:

RFE Date:

Date of Filing: 10/13/2015

Matter of L-Q-USA Inc., ID# 55839 (AAO Dec. 29, 2016)

Appeal of L-1A Intracompany Transfer of Executive and Managers, Form I-129, Petition for a Non-Immigrant Worker

Foreign Country:

U.S. State of Operation: New York

Type of Company: Grocery Store

Type of Employment/Job Title: Manager

New Office or Existing Office: New Office

Number of Employees: 2

Service Center: Vermont Service Center

Decision: The appeal is dismissed.

Site Link: https://www.uscis.gov/sites/default/files/err/D7%20-%20Intracompany%20Transferees%20(L-1A%20and%20L-1B)/Decisions_Issued_in_2016/DEC292016_01D7101.pdf

Issues & Facts:

The Director based the denial on two grounds: (1) the Petitioner would not employ the Beneficiary in the United States in a managerial or executive capacity within one year of approval of the petition; and (2) the Beneficiary was not employed abroad in a managerial or executive capacity.

The Director issued a request for evidence (RFE) informing the Petitioner that the Business Plan it submitted was overly general and did not provide documentation to support the time tables and business bench marks it claimed during its first year of operation. The Director also questioned how the Petitioner would support the Beneficiary in an executive position with a staff of only two supporting employees. The Director instructed the Petitioner to submit, in part, a feasibility or market research study demonstrating a need for the U.S. company and the likelihood that it would employ the Beneficiary in an executive capacity at the end of its first year of operation; a more detailed Business Plan with a timetable for each proposed action during the Petitioner's first year of operation; and a copy of the Petitioner's proposed organizational chart illustrating its staffing levels and organizational hierarchy. In addition, the Director asked the Petitioner to provide evidence regarding the size of the U.S. investment and the foreign entity's ability to remunerate the Beneficiary and commence doing business in the United States. Lastly, the Director found that the Petitioner did not submit documentation to support the timetables and business benchmarks it provided in the Business Plan.

We further find that the Petitioner provided insufficient evidence to establish that its foreign affiliate made capital contributions of over $110,000 to support the U.S. operation during its initial year. As previously noted, all but one of the fund transfer receipts that the Petitioner provided in response to the RFE show that the Beneficiary was both the originator and recipient of the funds and refer to "personal needs" as the purpose of all of the fund transfers. While the fund transfer that took place in January 2016 originated from the Petitioner's foreign affiliate, it too shows that the transferred funds went to the Beneficiary for "personal needs." Thus, despite the Petitioner's claims about the foreign affiliates capital contributions, we find that the record lacks any corroborating evidence to support the claim that the foreign affiliate provided adequate funding to support the Petitioner during its initial start-up year.

In the matter at hand, the record indicates that Beneficiary directly owns and controls the Petitioner and the foreign entity where the Beneficiary was previously employed. The record further shows that the Beneficiary assumed the top-most position within the foreign entity's organization and that the same would be true of the Beneficiary's proposed position with the Petitioner. The Petitioner claims that the Beneficiary was not and would not be subject to a higher authority in either of his respective positions. Thus, by virtue of owning and controlling both the Petitioner and the foreign entity that owns the Petitioner, the Beneficiary's employer-employee relationship with either entity is compromised. For this additional reason, the appeal will be dismissed.
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Synopsis of L-1A AAO Decisions for 12/2016

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