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Date of Decision: 05/17/2016

Matter of G-USA, LLC., ID# 16538 (AAO May 17, 2016)

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

Foreign Country: Unknown

Type of Company: Information technology consulting business

Type of Employment/Job Title: Chief Executive Officer

New Office or Existing Office: Extending L-1

Service Center: California

Decision: The appeal is dismissed.

Site: https://www.uscis.gov/sites/default/files/err/D7%20-%20Intracompany%20Transferees%20(L-1A%20and%20L-1B)/Decisions_Issued_in_2016/MAY172016_01D7101.pdf

Issues & Facts:

The Director concluded that the Petitioner did not establish that the Beneficiary will be employed in a managerial or executive capacity in the United States.

On the Form 1-129. the Petitioner indicated that it has three current employees in the United States and a gross annual income of $102,500. On the L Classification Supplement to Form I-129, where asked to describe the Beneficiary's proposed duties in the United States. the Petitioner simply stated “Please see the attached cover letter” However. the record does not contain a letter of support from the Petitioner at the time of filing. The Petitioner submitted its 2014 IRS Form 1065, U.S. Return of Partnership Income.-' indicating that it earned $102,500.00 in gross receipts or sales and paid $0 in salaries and wages.

In denying the petition, the Director found that it appeared the Beneficiary does not manage supervisory, managerial, or professional employees as the Petitioner did not describe how the Beneficiary supervises its claimed employees and independent contractors on a day-to-day basis. The Director further found that the Beneficiary did not have managerial employees to direct that will run the day-to-day operations of the business. The Director found that it appears the Beneficiary has a single professional subordinate and the record did not establish that most of the Beneficiary's time will be devoted to supervising a Software Consultant.

In the instant matter, the Petitioner first characterized the Beneficiary's role as Chief Executive Officer and briefly stated in its business plan that the Beneficiary will handle the daily management and operations, employees and sub-contractors. and sales and consultants. The Petitioner's organizational chart listed the Beneficiary at the top tier of the hierarchy as "CEO/CTO." Although the Petitioner referenced a letter of support, the record did not contain such a letter at the time of tiling.

Although the Petitioner included percentages of time the Beneficiary will devote to clusters of duties, and listed brief tasks associated with those duties. it did not indicate how such duties qualify as executive in nature. For instance, the Petitioner specifically stated that the Beneficiary will collaborate with a CPA and lawyers, but it did not provide any evidence that it has hired such professional staff to assist the Beneficiary, or how that particular task is executive. The Petitioner refers to its management team in reference to the Beneficiary's direct subordinates; however, the Petitioner has not shown that it employs any department managers. The Petitioner also specifically stated that the Beneficiary will ensure compliance with U.S. safety regulations, but has not established how that particular task is executive in nature. Finally, the Petitioner vaguely stated that the Beneficiary will review reports prepared by the team and reports on budget. but did not indicate who would be preparing such reports, or again. how these particular tasks are executive in nature. The Petitioner also included some vague and undefined tasks, such as "set the working environment in the U.S. company" and '"establish and share company values with employees and customers in the West Coast market” which do not establish that the Beneficiary will be employed in an executive capacity.

Further, on appeal. the Petitioner shows that it has hired an additional contracted consultant after the denial of the petition. However, given that the contractor was hired after the denial of the petition. we cannot consider the new consultant's employment when determining whether the Beneficiary has sufficient subordinates to relieve him from performing non-qualifying tasks.

AAO: Doing Business: Beyond the decision of the Director, the Petitioner has not established that it has been engaged in the regular, systematic, and continuous provision of goods and/or services in the United States for the entire year prior to filing the petition to extend the Beneficiary's status. The Petitioner acknowledges in its Company Statement that although it officially opened as a California-based limited liability company in March 2014. it did not commence official operations until November of 2014, and did not begin the launch of its marketing operations until mid-February 2015. The new office petition was approved on September 25. 2014. Thus, pursuant to the regulation at 8 C.F.R. § 214.2(1)(14)(ii)(B). the Petitioner is expected to submit evidence that it has been doing business since the date of the approval of the initial petition. In the instant case. the petitioner has not established that it was doing business from September 2014 through August 2015. For this additional reason the petition may not be approved.
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Date of Decision: 05/24/2016

Matter of T-L- Inc., ID# 16479 (AAO May 24, 2016)

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

Foreign Country: Unknown

Type of Company: Shipping and logistics company

Type of Employment/Job Title: Manager

New Office or Existing Office: Unknown

Service Center: Vermont
Decision: Motion to reopen is denied.

Site: https://www.uscis.gov/sites/default/files/err/D7%20-%20Intracompany%20Transferees%20(L-1A%20and%20L-1B)/Decisions_Issued_in_2016/MAY242016_04D7101.pdf

Issues & Facts:

The Director concluded that the Petitioner has not established that it will employ the Beneficiary in a qualifying managerial or executive capacity.

The Petitioner stated on Form 1-129 that it is a shipping and logistics company with three employees and an undisclosed gross annual income. The Petitioner also stated that the Beneficiary would supervise four positions, including two current positions, "Operations Head" and "Documentation and Customer Service," and two prospective positions, "Export Supervisor" and "Sales Executive. The Petitioner submitted an organizational chart that is undated.

The Director noted that the Petitioner did not submit sufficient evidence that the Beneficiary will supervise and control the work of other supervisory, professional, or managerial employees. The Director requested a more detailed job description that outlines the specific duties that the Beneficiary will perform and the percentage of time spent on each individual duty, along with an explanation of who is a member of the Beneficiary's team, division or department.

The Petitioner submitted a second organizational chart indicating that the Beneficiary will have two subordinates: sales and operations manager (high school) and documentation and customer service assistant (high school). It is not clear whether the "high school" designation means that the position requires a high school diploma, or if that is the highest educational level achieved by the individuals currently in the position.

Here, the Petitioner submitted a lengthy description of the Beneficiary's duties in response to the RFE, which included a number of non-qualifying operational duties. According to the Petitioner, one of the Beneficiary's main duties, one he will devote 30 percent of his time to, will be to "locate and interview[] prospective vendors for their integration within the petitioner's infrastructure," and "negotiate contracts, prices, timetables and delivery schedules."

The Petitioner also states that the Beneficiary will devote 10 percent of his time to "[n]egotiate and manage the signing of agreements with various vendors who can provide distribution and warehousing services in order to complete the supply chain management required by importers and exporters for efficient enhancement of the services." However, when examining the details of this job duty, it becomes clear that the Beneficiary will in fact spend his time researching the individual vendors, reviewing their fee schedules and incorporating these costs into marketing materials for prospective customers. It is reasonable to assume that this level of involvement working directly with vendors, importers and exporters, marketing the business to prospective customers, and involvement in the minutia of arranging daily timetables and delivery schedules for a global shipping company is performing the main function of the business, rather than managing it. As such these are non-qualifying duties and the provided job description does not support the Petitioner's claim that the Beneficiary will be engaged primarily in managerial or executive duties. The actual duties themselves reveal the true nature of the employment.

Other duties assigned to the Beneficiary appear that they may generally fall within the statutory definition of managerial or executive capacity, but the detailed explanation of these responsibilities along with the description of subordinate staff, do not support the Petitioner's assertion that the Beneficiary would in fact perform managerial or executive duties. Specifically, the Petitioner asserts that the Beneficiary would devote 30 percent of his time to "manage the development of effective business models and strategies designed to increase business. These models will incorporate estimates for various freight delivery scenarios involving rail, truck, shipping and air, and will provide perspective customers with an accurate estimate of the precise costs of the services and the time involved in transporting services to the US." However, the Petitioner does not appear to have staff to develop the cost modeling or perform the supply chain functions that the Beneficiary claims to manage. The Beneficiary is also purported to spend I 0 percent of his time to manage and supervise the "efficient implementation of IT software to facilitate and effectuate a successful supply chain management system;" however, the Petitioner has not stated who, other than the Beneficiary, will be responsible for performing the daily IT functions of the business. According to the descriptions provided, none of the Petitioner's other employees would be responsible for providing IT service and support, such that the Beneficiary would be able to manage, rather than perform this activity.

Moreover, although the Petitioner asserts that the Beneficiary will not be involved in sales, the statements made in the record reflect that the Beneficiary will perform sales duties himself, rather than assigning them to the company's employees, as the sales staff has not yet been hired. Specifically, the Petitioner has stated that it employed three employees as of the date of filing.

Initially, the Petitioner claimed to employ an "operations head" and "documentation and customer service" positions. At the time of filing, the Petitioner did not claim to employ an export supervisor or sales executives; rather it stated that it would fill these positions at a later date. In response to the RFE, the Petitioner changed the position titles but did not update or amend the job descriptions to include sales or marketing responsibilities. While the job descriptions for the subordinate positions do indicate that these individuals perform certain operational and administrative. tasks, it does not appear that their role is to relieve the Beneficiary from performing the non-qualifying tasks identified above; such as IT functions, developing cost estimates and supply chain models, identifying vendors and suppliers, meeting with vendors, and performing marketing sales functions. It is evident from the description provided that the Beneficiary himself, and not the other staff, will be responsible for performing these non-qualifying duties.

Furthermore, the Petitioner's claim to "manage the activities of remote managers in sub-offices around the world," is not supported by evidence in the record. The Petitioner has not provided evidence of the employment or engagement of this staff, nor has it provided evidence of or a description of the duties performed by this staff, such that we could conclude that this staff would relieve him from performing the non-qualifying operational and day-to-day duties noted above.
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Date of Decision: 05/19/2016

Matter L-N-C-P- Corp,. 10# 16632 (AAO May 19, 2016)

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

Foreign Country: Unknown

Type of Company: Restaurant Operator

Type of Employment/Job Title: General Manager

New Office or Existing Office: Extending Status

Service Center: Vermont

Decision: The appeal is dismissed.

Site: https://www.uscis.gov/sites/default/files/err/D7%20-%20Intracompany%20Transferees%20(L-1A%20and%20L-1B)/Decisions_Issued_in_2016/MAY192016_02D7101.pdf

Issues & Facts:

Did not establish that the Beneficiary will be employed in a managerial or executive capacity. Further, the Director found that the Petitioner did not demonstrate that it has a qualifying relationship with the Beneficiary's foreign employer.

The Petitioner tiled the Form 1-129 on March 4. 2015. On the Form 1-129. the Petitioner indicated that it has four current employees in the United States and a gross annual income of $449.779. The record shows that the Beneficiary was previously granted one year in L-1 A status in order open the Petitioner's new office in Florida as its general manager.

In a support letter dated February 25. 2015, the Petitioner stated that it had leased 1.895 square feet of commercial space “to be used for our business sales and management activities and for our rendering of marketing, development and support services.” The Petitioner explained that the foreign employer had "invested $150.000 to build-out its initial kitchen and restaurant, and stated that the Beneficiary had “signed two leases for two additional locations in order to launch the Company's wholesale business,'' which includes a “whole sale manufacturing kitchen.''

The Director later issued a request for evidence (RFE). stating that the Beneficiary's position description only described his tasks at an abstract level and did not explain what he will do on a day to-day basis. As such, the Director requested that the Petitioner submit a letter explaining the Beneficiary's typical duties and the percentage of time spent on each in support of its claim that he would primarily perform managerial or executive duties. The Director further asked that the Petitioner provide its organizational chart including the names, job titles, duties. education level, and salaries tor each employee. The Director also requested that the Petitioner submit copies of its state quarterly wage reports for the last quarter of2014 and the first quarter of2015, any IRS Forms W-2. W-3 or 1099, and/or any copies of employment agreements.

In addition, the Director acknowledged the Petitioner's statement that it operates a restaurant and also acts as a "provider of management services." The Director indicated that the Petitioner did not clearly describe what management services it provides or submit evidence relating to this part of its business. The Director advised that additional evidence was needed to explain the nature of the business and the Beneficiary's day-to-day involvement.

In a response letter dated June 29. 2015. the Petitioner stated that the Beneficiary acts ··as an executive of the Company." The Petitioner indicated that its previous letter stating that it was engaged in "management services" was '·inaccurate." The Petitioner provided further explanation of the Beneficiary's duties noting that he ''directs the management of the organization,'' which includes directing '·activities of six (6) current employees," meeting "daily with his direct reports,'' evaluating and directing menus and recipes, reviewing .. work procedures and operational problems.'' reviewing ·'reports for sales and marketing,'' directing the .. marketing coordinator." setting up .. training sessions.'' and managing finances.

The Petitioner further stated that the Beneficiary establishes the ·'goals and policies of the organization," including "developing marketing plans,'' establishing '·standards for personnel performance and customer service,'' creating "policies for safety and sanitation,'' establishing ''records systems,'' and creating '·strategic plans." Lastly, the Petitioner explained that the Beneficiary "exercises wide latitude in discretionary decision making," which includes approving "final menu and pricing," choosing vendors. determining promotions, and reviewing and signing ''key contracts with vendors and employees."

The Petitioner again stated that it planned on opening two additional restaurant locations and a wholesale pasta manufacturing location in South Florida with an additional $200,000 investment and that the Beneficiary would be tasked with "conducting research,'' "signing leases and completing build-outs,'' ''hiring contractors," .. promoting four (4) new managers and twenty (20) new employees," and "launching Grand Openings." The Petitioner explained that it currently had .. seven (7) employees on the payroll" including the Beneficiary, the previously asserted subordinates, and two additional employees. a dishwasher and a server.

The Petitioner indicated that "prior to hiring a server and dishwasher, the restaurant functions with the chef ... as well as independent contractors performing various day-to-day duties ... such as answering phones and taking customer orders; ringing up customers, packing customer food orders; and wiping down tables and chairs." The Petitioner noted that it "serves more 'to-go· orders than sit-down customers." The Petitioner further explained that it planned to promote its chef to · Manager," its salesman to ''Wholesale Sales Manager,'' and its marketing coordinator and administrative assistant from part-time to full-time.

The Petitioner did not provide the requested evidence of wages or other payments made to employees or contractors.

In denying the petition, the Director stated that the record did not establish that the Petitioner had sufficient operational employees to relieve the Beneficiary from primarily performing non-qualifying operational duties and to support the Beneficiary in a position where he was overseeing managerial and professional subordinates.

The Director also denied the petition based on a finding that the Petitioner did not establish that it has a qualifying relationship with the Beneficiary" s foreign employer.

The Petitioner submitted a 2013 IRS Form I120, U.S. Corporation Income Tax Return. in which it had answered "No'' to question 7 in Schedule K which asks the filing company whether any foreign person owned 25% or more of the company's stock. In the RFE, the Director noted that the Petitioner did not acknowledge that it was owned by a foreign corporation in its IRS Form 1120 and requested that the Petitioner submit a complete copy of its latest tax return reflecting its stated foreign ownership. In addition, the Director asked the Petitioner to submit additional evidence to substantiate its ownership, including meeting minutes. articles of incorporation, stock certificates and ledgers, proof of stock purchase or contracts reflecting such, and/or applicable bylaws.

In response, Petitioner said this was an error and the foreign company was not a parent company. It claimed Ownership on the affiliate model. In denying the petition, the Director stated that the Petitioner had made material changes to the stated ownership in the company subsequent to the filing of the petition and had submitted insufficient evidence to resolve the discrepancy regarding its ownership. The Director emphasized that the Petitioner did not submit the requested complete copy of its 2013 IRS Form 1120 or any other documentation beyond a single stock certificate. 

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Date of Decision: 05/24/2016

Matter of S-USI-, LLC, ID# 16574 (AAO May 24, 2016)

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

Foreign Country: Unknown

Type of Company: Investment Company

Type of Employment/Job title: President

New Office or Existing Office: Unknown

Service Center: Vermont

Decision: The Appeal is Dismissed.  

Site: https://www.uscis.gov/sites/default/files/err/D7%20-%20Intracompany%20Transferees%20(L-1A%20and%20L-1B)/Decisions_Issued_in_2016/MAY242016_02D7101.pdf

Issues & Facts:

The Director concluded that the Petitioner would not employ the Beneficiary in a managerial or executive capacity in the United States.

On the Form 1-129, the Petitioner indicated that it has no current employees and a net annual income of -$28,703. The Director questioned the Petitioner's capacity to relieve the Beneficiary from having to allocate her time primarily to performing the organization's non-qualifying tasks given that the Petitioner has no employees, and noted that there is no evidence to show who provides the services to the Petitioner's customers. The Director also pointed to an inconsistency between the Petitioner's cover letter, which indicates that the Petitioner is an investment company specializing in oil wells, and the Beneficiary's job description, which refers to the Petitioner as an operator of a restaurant.

In denying the petition, the Director found that the Petitioner did not have personnel to carry out its administrative, sales, marketing, business development, or human resources functions. The Director further observed that the Petitioner has not provided any specific plans for developing a restaurant-based business, nor has it provided evidence to establish that there are any employees available to further its business objectives in the restaurant industry.

The Petitioner also claimed that 40% of the Beneficiary's time would be allocated to formulating and developing strategic plans and growing and expanding the business. However, in discussing this aspect of the Beneficiary's job, the Petitioner referred to the initial start-up phase of its development and indicated that the Beneficiary would work with the goal of opening a restaurant retail operation. These claims indicate that the Petitioner did not have an established business at the time of filing and that the Beneficiary would not be able to assume the role of evaluating the impact of long-range planning, providing strategic financial input and leadership, providing advice concerning contracts, analyzing the external and internal competitive landscape, and seeking out opportunities for business expansion until sometime in the future, once the Petitioner moves beyond its initial stage of operation. However, the Petitioner must establish eligibility at the time of filing.

AAO: US Company Doing Business

in its initial supporting statement the Petitioner explained that it had experienced business setbacks due to its prior failed attempts to establish a restaurant business and an oil well investment business. The Petitioner claimed that, despite the dissolution of a subsidiary that was created through its partnership with another entity, it was in "its second year of operation under its own banner," thus indicating that it continued some form of business associated with investment in oil wells. However, in the Beneficiary's corresponding job description, which included a percentage breakdown of the Beneficiary's proposed job duties, the Petitioner stated that the Beneficiary would "work to develop and open the restaurant retail store."

Based on the Petitioner's own account, its only remaining business activity was directly associated with investments that had been made prior to filing the petition. The Petitioner expressly stated in its RFE response that "no further investment in oil wells has been transacted." Further, while the Petitioner has repeatedly expressed an interest in investing in a restaurant business, the record contains no evidence that it had actually acquired such a business and that such a business was operational at the time the petition was filed.

AAO: Temporary Employment of the Beneficiary

In the present matter, the· Petitioner indicates that the Beneficiary is the direct sole owner of the foreign entity and that she also solely owns the petitioning entity indirectly by virtue of the parent-subsidiary relationship, which was created through the foreign entity's ownership of the Petitioner. While the Petitioner indicated at Part 5, No. 10 of the petition that the Beneficiary's services would be required for a finite period of three years, the record contains no evidence to support this claim. 

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Date of Decision: 05/26/2016
Matter of DJGP-&C-, Inc., ID# 16589 (AAO May 26, 2016)

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

Foreign Country: Unknown

Type of Company: Internet Sales Company

Type of Employment/Job Title: Executive Director

New Office or Existing Office: New Office

Service Center: Vermont

Decision: Motion to reopen is denied.

Site: https://www.uscis.gov/sites/default/files/err/D7%20-%20Intracompany%20Transferees%20(L-1A%20and%20L-1B)/Decisions_Issued_in_2016/MAY262016_01D7101.pdf

Issues & Facts:

The Director concluded that the evidence of record did not establish that: (I) the Beneficiary would be employed in the United States in a qualifying managerial or executive capacity within one year of the approval of the petition; (2) the Beneficiary had been employed in a qualifying managerial or executive capacity for the qualifying foreign organization; and (3) the Petitioner had secured sufficient physical premises for its new office. The Petitioner filed a motion on the Director's decision and the Director reopened the matter for review

At the time of filing, the Petitioner stated that it would initially provide various consulting services for organizations operating in the automobile parts and accessories sector in the United States, including services related to marketing strategies and policies, sales promotion, advertising, sales campaigns, sales strategies and customer relationship management.

The Petitioner stated that it anticipated start-up costs of $40,000 which would be paid by its parent company, but did not provide any information regarding its projected income, expenses and financial objectives for the first year of operations to show how it would support the claimed staffing structure. Specifically, the Petitioner did not provide a business plan or other supporting evidence related to the anticipated scope of the entity, its organizational structure, and its financial goals.

In response to the Director's request for evidence (RFE), the Petitioner noted that it did not plan to start the hiring process until this petition had been approved and could not provide any additional information regarding employees who will be managed by the Beneficiary. The Petitioner indicated its plans to move out of its 150 square foot office into a larger space ·and to acquire a warehouse and retail store location within the first year of operations.

Following the denial of the petition on April 15, 2013, the Petitioner filed a motion to reconsider. In support of the motion, the Petitioner submitted a business plan that had been prepared in May 2013. In the business plan, the Petitioner stated that it "will purchase, export and distribute targeted consumer products for the Brazilian market "at this time focusing on baby products, jewelry and high end watches." The Petitioner provided a revised description of the Beneficiary's duties, noting that the Beneficiary "will be in charge of the financials, budgets, accounts receivables, accounts payables, warehouse management, logistics and human resource functions" and that he "will attend industry events and perform all marketing activities."

In affirming the denial of the petition, the Director acknowledged the new position description, but determined that the duties were described in vague terms and did not provide sufficient detail regarding the Beneficiary's actual proposed duties. The Director further found that the organizational chart reflected that all of the, Beneficiary's subordinates would have managerial job titles and that it did not include any proposed employees to carry out the day-to-day operations of the office. Finally, the Director found that the Petitioner had not clearly described the nature of the services to be provided by the company.

We dismissed the Petitioner's appeal on October 26, 2015, concluding that the evidence of record did not establish that its new office would support a managerial or executive position within the requested one-year timeframe, from September 21, 2012 to September 20, 2013. In dismissing the appeal, we found that the most recent explanation of the Beneficiary's job duties indicated that he would perform non-qualifying marketing and promotion tasks, as well as the task of locating Brazilian distributors necessary to its proposed export business, and that the Petitioner did not state that staff had been or would be hired to assist him with these activities. Further, we agreed with the Director's determination that several of the Beneficiary's proposed duties were described in broad and general terms and did not provide insight into the nature of his proposed daily tasks.

On motion, the Petitioner states that it "does have the capacity to employ the Beneficiary in a managerial/executive capacity within one year of the approval of the new office." Further, the Petitioner asserts that the company was prepared, as of the date of filing, to rapidly expand as it had found a profitable, niche market for its services. The Petitioner asserts that it has been forced to rely on third party providers and independent contractors in the absence of the Beneficiary's executive leadership, as one of his proposed duties was to recruit and hire managerial employees.

The Petitioner has not claimed that the petition was approvable based on the limited evidence in the record at the time of the initial decision. Rather, it has offered multiple new versions of the Beneficiary's proposed duties and claimed that some of the initial evidence was inadequate because the Petitioner prepared the filing without the assistance of an attorney. Specifically, it has stated that the organizational chart submitted at the time of filing was actually intended to show the Beneficiary's direct reports after five years and then offered a new chart showing eight employees, with different job titles, to be hired within the first two years. It subsequently provided financial projections indicating that it anticipated sales of $150,000 and $200,000, respectively, in its first two years of operations, which would be insufficient to support the staff it stated it intended to hire at the time of filing. Finally, it has abandoned its initial claim that it plans to provide services for companies in the U.S. automobile parts and accessories sector and to open a retail store and a warehouse for import/export operations during a one-year timeframe. 

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Date of Decision: 05/02/2016

Matter of R-F-P-US Inc., ID#16545 (AAO May 2, 2016)

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

Foreign Country: Unknown

Type of Company: Producer of newsprint, commercial printing paper, market pulp and wood products.

Type of Employment/Job title: Regional Sales Manager.

New Office or Existing Office:

Service Center: Vermont

Decision: The Appeal is Dismissed.  

Site: https://www.uscis.gov/sites/default/files/err/D7%20-%20Intracompany%20Transferees%20(L-1A%20and%20L-1B)/Decisions_Issued_in_2016/MAY022016_01D7101.pdf

Rule:

While no beneficiary is required to allocate 100% of his time to managerial- or executive-level tasks. the petitioner must establish that the non-qualifying tasks the beneficiary would perform are only incidental to the proposed position. An employee who “primarily" performs the tasks necessary to produce a product or to provide services is not considered to be “primarily'' employed in a managerial or executive capacity. See sections 101(a)(44)(A) and (B) of the Act (requiring that one ''primarily" perform the enumerated managerial or executive duties); see also Matter of Church Scientology Int’l, 19 I&N Dec. 593, 604 (Comm'r 1988).

Issues & Facts:
The Director, Vermont Service Center, initially approved the petition for a nonimmigrant visa. Subsequent to information obtained during a randomly conducted site visit by an immigration office. the Director determined that the Petitioner was not eligible for the benefit sought. Accordingly. the Director properly served the Petitioner with a notice of her intention to revoke (NOIR) the approval of the petition. and her reasons therefore. The Director ultimately revoked the approval of the petition based on the conclusion that the Petitioner did not establish that the Beneficiary is employed in a qualifying managerial capacity.

On the Form 1-129, the Petitioner indicated that it had 2,800 current employees in the United States. It declined to state its gross annual income in the section provided on the Form I -129.

On September 15, 2014, following a USCIS site visit to the above address, which the Petitioner disclosed as the location where the Beneficiary would carry out his job duties, and after conducting a comprehensive review of the information in the Petitioner's record of proceeding, the Director issued an NOIR. The Director questioned why the Petitioner indicated that the Beneficiary would be employed at the above business address it: in fact, he works in Florida at a remote off-site location. The Director summarized the Beneficiary's responses to questions posed in a phone interview, which took place on August 13, 2014, during which the Beneficiary stated that his job duties include dealing directly with customers, forecasting customer needs, dealing with quality control issues, overseeing sales agents in Guatemala, and traveling for business. In light of the job description provided by the Beneficiary, the Director determined that the U.S. position does not appear to be in a qualifying capacity and suggested that the Petitioner provide additional evidence to overcome this proposed basis for revocation. The suggested list of additional documents included the following: (1) a list of the Beneficiary's job duties with an approximate percentage of time indicating how much time is allocated to each assigned duty: (2) an organizational chart identifying all employees, including the Beneficiary, within the Beneficiary's division, department or team, by name, job title, and job description and depicting the Petitioner's current organizational structure and staffing levels; (3) a description of the decisions made by the Beneficiary regarding the function managed; ( 4) evidence of wages paid to employees while the Beneficiary has worked within a qualifying managerial capacity; (5) evidence of managerial decisions made by the Beneficiary, such as signed contracts or other legal documents; (6) copies of official correspondence as proof of the Beneficiary's authority and discretion; (7) samples of work the Beneficiary reviewed and approved; and (8) evidence of any prior evaluations of the Beneficiary's work.

The Director found that the evidence of record indicates that the Beneficiary's primary focus is on the performance of .. sales activities for high dollar clients." thus indicating that the Beneficiary would be providing a service, rather than operating in a managerial capacity. The Director further determined that the Petitioner did not offer sufficient evidence to establish that the Beneficiary would either manage an essential function or oversee the work of supervisory, professional, or managerial subordinates who would relieve the Beneficiary from having to primarily perform non-qualifying job duties.

First. looking to the job description in the present matter. we find that the percentage breakdown that the Petitioner provided in its NOIR response statement contains insufficient information about the Beneficiary's daily job duties and the actual amount of time the Beneficiary allocates to specific tasks. For instance, the Petitioner stated that the Beneficiary's job duties include functioning .. at a senior level within the Petitioner's] organizational hierarchy with respect to the sales divisions[.]" While this claim addresses one of the four statutory criteria for managerial capacity. it is not an actual job duty, as it does not disclose any specific act that the Beneficiary performs in his role as regional sales manager. Furthermore, this claim is not consistent with the various organizational charts that the Petitioner provided with the NOIR response. where the Petitioner revealed two other positions - that of senior vice president of pulp and paper sales and marketing and that of international vice president of paper sales - both of which were expressly depicted as senior to the Beneficiary's position with respect to the sales function.

Similarly, while possessing the authority to hire and fire employees and/or contractors may be another characteristic of the Beneficiary's position. it is not reflective of a job duty or task, as there is no evidence to suggest that hiring and firing employees and/or contractors is an action the Beneficiary performs on a regular basis as part of his daily or weekly routine. Here. the information provided in the organizational charts that were submitted with the NOIR response did not depict any subordinate employees or contractors within the Beneficiary's specific purview. While the Petitioner provided updated organizational charts on appeal, where the Beneficiary is depicted as overseeing distributors, regional managers, and various service providers in the areas of customer service and logistics, this information conflicts considerably with the previously provided organizational charts and with the Beneficiary's own account of his job duties. which he provided during his phone conversation with an immigration officer to whom the Beneficiary told that his only direct report is a Guatemala sales agent. a position that was only included in the recently submitted .. Cross Functional Chart of [the Beneficiary's! Direct & Indirect Reports for Central America.''

In general, the vague nature of the job description precludes a comprehensive understanding of the Beneficiary's actual role with regard to certain sales-related components of the Beneficiary’s position such that we cannot determine whether the Beneficiary's role is largely participatory with respect to the above-mentioned components or whether the Beneficiary's involvement is truly limited to management and oversight. Specifics are clearly an important indication of whether a beneficiary's duties are primarily executive or managerial in nature. otherwise meeting the definitions would simply be a matter of reiterating the regulations. Furthermore. while specifically asked to assign time allocations to the Beneficiary's individual job duties. the Petitioner grouped multiple broadly-stated job duties into one category- ''Senior Level Managerial Duties'" - and assigned 80% of the Beneficiary's time to the overall category rather than breaking down the 80% and assigning time allocations to each individual component that comprises the category.

Beneficiary's own statements, which he provided in response to questions posed by a USCIS immigration officer during a telephone interview. indicate that the Beneficiary actively participates in the sales of the Petitioner's products. As previously discussed in the NOIR. when asked to describe his job duties. the Beneficiary stated that he deals directly with customers, forecasts customers' needs. addresses quality control issues. oversees a Guatemala sales agent. and travels. Although one of the new organizational charts- titled Pulp and Paper Sales & Marketing""- which the Petitioner provided on appeal depicts the Beneficiary as Regional Director UFS Latin America Overseeing Florida distributors and three regional managers covering South America, the Caribbean, and Mexico and Venezuela, this chart is in direct conflict with the Beneficiary's own account, which did not indicate that he oversees any regional managers in any of the geographical locations stated herein. In fact, the only geographical area that the Beneficiary did mention during his telephone interview - Guatemala - was not listed anywhere in this chart. which lists the Beneficiary's position title as that of Regional Director overseeing three regional managers.

Furthermore, we note that the information provided in the 'Pulp and Paper Sales & Marketing"" chart is inconsistent with the Beneficiary's position title as cited in the petition, where the Beneficiary was assigned the title of regional sales manager.

___________________________________________________________________________________

Date of Decision: 05/18/2016

Matter of O-. Inc., ID# 16634 (AAO May 18, 2016)

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

Foreign Country: Unknown

Type of Company: Toy and Nursery Products Design Company

Type of Employment/Job Title:  Chief Executive Officer (CEO)

New Office or Existing Office:

Service Center: Vermont

Decision: The appeal is dismissed.

Site: https://www.uscis.gov/sites/default/files/err/D7%20-%20Intracompany%20Transferees%20(L-1A%20and%20L-1B)/Decisions_Issued_in_2016/MAY182016_01D7101.pdf

Issues & Facts:

The Director concluded the Petitioner did not establish that: (1) the Beneficiary will be employed in a managerial or executive capacity: and (2) the Beneficiary has been employed abroad in a managerial or executive capacity.

The Petitioner stated on Form I-129 that it is a toy and nursery products development company with five current U.S. employees.

According to the business plan. the Petitioner plans to "utilize [Hong Kong] and German 1 resources as much as possible through cloud based ERP System NetSuite" to reduce its costs. The Petitioner noted that staff located in Hong Kong (will handle order processing and U.S. accounting, although a part-time U.S. accounting clerk would later be hired to perform certain tasks. In addition, the Petitioner stated that it will increase the hours of its 1099 marketing and customer service consultant from ''60 to 120 hours per week .. , and hire a design assistant by early 2016.

The Petitioner submitted an organizational chart dated 2015, which shows the Beneficiary in the role of CEO overseeing four positions and three independent sales representatives Specifically, the chart shows that the Beneficiary will oversee: a contracted “customer service/blogger relationships'' employee an order processing employee based in Hong Kong 1 an accounting clerk (vacant). and a design and product development manager 1 who will eventually supervise a design assistant (vacant). The chart indicates that order processing responsibility will be moved to the United States when U.S. turnover reaches $300,000.

The Director issued a request for evidence (RFE) asking the Petitioner to provide a more detailed job description that outlines the specific duties that the Beneficiary will perform and the percentage of time he will spend on each individual duty, along with an explanation of who is a member of the Beneficiary's team, division or department, and additional evidence of employees or contractors to be overseen by the Beneficiary.

In response to the RFE. the Petitioner submitted a letter from the foreign entity dated June 23, 2015. which included the list of duties previously provided for the Beneficiary. The new letter added that the Beneficiary will also: "direct the work of other professionals and managers and will have authority to hire and tire" and "report directly to the Board of Directors of the Parent company." The Petitioner did not list the percentages of time the Beneficiary would spend on each duty.

The Director determined that the Beneficiary's duties would be mostly non-qualifying tasks related to the company's day to day operations. The Director also noted that the limited number of U.S. employees makes it questionable whether the Beneficiary will be able to primarily perform managerial or executive functions and that the record indicates that the Beneficiary will have firstline supervisory duties over non-professional employees.

Here, while the Beneficiary's duty description and the record as a whole, show that he will have the required level of authority over the business, it also indicates that he will perform a number of operational tasks that may would fall outside of the statutory definitions of managerial and executive capacity. Specifically, the Petitioner states that the Beneficiary will be required to: "'Establish relationships with major accounts such as " “Actively explore the potential of private label development" "handle all finance and administration issues” and, “Develop a new ecommerce platform and integrate it with NetSuite OneWorld."' These duties are poorly defined and do not provide insight into the specific managerial or executive tasks that the Beneficiary would perform or who, if anyone. would assist him with these functions. Furthermore. several of the Beneficiary's remaining duties do not appear to be managerial or executive in nature. For example, the Petitioner asserts that the Beneficiary will be responsible for inventory planning. preparing monthly and quarterly business reports, and working with the design team on product development, but does not provide sufficient explanation to establish how these tasks qualify as managerial or executive.

Petitioner's reply to the RFE was not responsive to the Director's request for information regarding the specific tasks the Beneficiary will perform and the amount of time he will allocate to each duty. The Petitioner lists the Beneficiary's duties as including both managerial and administrative or operational tasks. but fails to quantify the time the Beneficiary will spend on them. This omission is important because several of the Beneficiary's daily tasks, as discussed, do not fall directly under traditional managerial duties as defined in the statute. Going on record without supporting documentary evidence is not sufficient for purposes of meeting the burden of proof in these proceedings. Without the requested percentages of time to be allocated to specific tasks. we cannot determine whether the Beneficiary would primarily perform managerial or executive duties.

The Petitioner stated on the Form I-129 that it has five current employees, but the Petitioner has not submitted evidence to support this statement. Rather. the record shows that at the time of tiling. the Petitioner had several commissioned sales representatives. a contracted social media marketing employee, and an IT consultant. In addition, the Petitioner stated that it initially plans to rely on employees located in Hong Kong for accounting and order processing. While the organizational chart and company statements indicate that the Petitioner employs a design and product development manager. the Petitioner has not provided evidence of the employment or engagement of this subordinate and it appears that she is also currently employed by the Hong Kong entity.

The Petitioner has not adequately explained the nature of the duties to be performed for the U.S. office by the foreign entity's employees or to what extent they will be able to relieve the U.S. office from accounting. order processing and product design functions. particularly in light of the foreign entity's own limited stat1ing levels. Although the Petitioner's U.S. operations are in a preliminary stage of development, it must establish eligibility at the time of filing the nonimmigrant visa petition and must continue to be eligible for the benefit through adjudication.

For this reason, we will not consider the U.S.-based order processing employee. design assistant or accounting clerk who are to be hired at a later time. The Petitioner has not established that the Beneficiary would oversee any U.S.-based managers, supervisors or professionals as of the date of tiling. Without any current regular employees in the United States. and without additional information regarding the nature of the reporting relationship or the amount of time the Beneficiary will spend overseeing the Hong Kong-based staff, the record does not establish that he will qualify as a personnel manager.

Here, although the Petitioner claimed five employees on the Form l-129. the record shows that the Petitioner currently has no employees, but rather relies on the services of commission-based sales representatives and independent contractors. The record does not contain evidence of payments to these outside staff or establish how they. or the foreign entity's accounting. order processing and design employees, would relieve the Beneficiary from significant involvement in the day-to-day operations of the U.S. company. While the Petitioner states that the Beneficiary would be responsible for establishing the ·'footprint" of the company and hiring staff, it must establish that he would perform primarily managerial or executive duties at the time the petition was filed.

Regarding foreign employment in an executive capacity:

The Director requested a more detailed statement from the foreign entity describing the position in detail, along with a description of the duties of any subordinate employees. In response, the Petitioner provided a revised description of the Beneficiary's duties with the foreign entity that was similar to the list provided at the time of filing. The Petitioner listed nine duties instead of eight duties. and added that the Beneficiary allocates 25% of his time to .. manage and take charge of sales and marketing activities in Asia and Europe." The Petitioner changed the percentage of time he allocates to other duties in order to accommodate this addition and the new duties as a whole added up to 105% of the Beneficiary's time.

Regarding the foreign employer chart: noted that the job titles do not match with those provided on the foreign entity's organizational chart. The foreign entity lists a "university degree" requirement for all but one of the positions and does not include any employee names.

Here, while the record shows that the Beneficiary is the founder and senior employee within the company. the Petitioner described the Beneficiary's duties in broad and general terms that offer little insight into what he does on a day-today basis. Although the Petitioner claims the Beneficiary supervises a team of six professionals, the foreign entity's organizational chart and position descriptions suggest that he supervised a total of four employees at the time of filing, as two positions on the foreign entity's organizational chart had vacancies. 

_____________________________________________________________________________________

Date of Decision: 05/09/2016

Matter of KGS- LLC, ID# 16549 (AAO May 9, 2016)

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

Foreign Country: Unknown

Type of Company: Gas Station, Convenience Store, and Laundromat.

Type of Employment/Job title: President and Director of Operations.

New Office or Existing Office: Failed claim of existing office

Service Center: Vermont

Decision: The Appeal is dismissed.

Site: https://www.uscis.gov/sites/default/files/err/D7%20-%20Intracompany%20Transferees%20(L-1A%20and%20L-1B)/Decisions_Issued_in_2016/MAY092016_03D7101.pdf

Rule:
The Petitioner has not established, in the alternative. that the Beneficiary will be employed primarily as a "function manager,'' as claimed. The term ··function manager" applies generally when a beneficiary does not supervise or control the work of a subordinate staff but instead is primarily responsible for managing an "essential function'' within the organization. See section 10l(a)(44)(A)(ii) of the Act. The term "essential function'' is not defined by statute or regulation. If a petitioner claims that a beneficiary will manage an essential function. a petitioner must furnish a written job offer that clearly describes the duties to be performed in managing the essential function. i.e., identify the function with specificity, articulate the essential nature of the function, and establish the proportion of a beneficiary's daily duties dedicated to managing the essential function. See 8 C.F.R. § 214.2(1)(3)(ii). In addition, a petitioner's description of a beneficiary's daily duties must demonstrate that the Beneficiary will manage the function rather than perform the duties related to the function.

Issues & Facts:
The Director concluded that the Petitioner did not establish that it will employ the Beneficiary in managerial or executive capacity.

On the Form I-129, the Petitioner indicated that it has five current employees in the United States and an estimated gross annual income of approximately $1.2 million. ...The Petitioner also provided job descriptions for its manager, assistant manager, and three store clerks/cashiers as well as a corresponding organizational chart. The chart depicts the Beneficiary at the top of the organizational hierarchy, followed by a store manager, who is depicted as manager of the gas station/convenience store and the laundromat, the latter of which depicts no other employees. The remainder of the gas station/convenience store hierarchy includes an assistant manager. who is subordinate to the store manager and is depicted as overseeing three store clerks.

The Petitioner submitted a statement asserting that the Beneficiary will assume the most senior position within a multi-level organizational hierarchy." The Petitioner further stated that the Beneficiary manages the operations function and the sales and marketing function, which the Petitioner asserts are two essential functions of the organization.

In denying the petition, the Director objected to the Petitioner seeking treatment as a new office. finding that the Petitioner does not fit the criteria of a new office. The Director also found that the Petitioner made a material change by claiming that the Beneficiary would assume the role of a function manager, despite its original claim indicating that the Beneficiary would be employed in an executive capacity. The Director further pointed to the Petitioner’s quarterly wage report f()r the fourth quarter of 2014, which shows that the Petitioner had only two full-time employees at the time the Petition was tiling. The Director questioned the Petitioner’s ability to support the Beneficiary's management of two essential functions, finding that the record did not contain sufficient evidence to establish who will perform the underlying tasks of the essential functions the Beneficiary would manage.

Namely, we find that the Petitioner did not provide an adequate description of the Beneficiary's proposed job duties within the specific context of the Petitioner's gas station/convenience store/laundromat business. which consists of one retail location and its employees. First we note that while the RFE instructed the Petitioner to provide a job description delineating the Beneficiary's daily tasks and the percentage of time the Beneficiary would allocate to each duty, the Petitioner did not comply with this request. Rather. the Petitioner provided a job description. which indicates that the Beneficiary's position would be comprised of duties that fit within one of two categories - operational duties and duties related to sales and marketing. While the Petitioner provided a breakdown of the percentage of time the Beneficiary would devote to each of the tasks in each stated category, the Petitioner did not specify how much time the Beneficiary would allocate to each category as a whole. thus providing no context within which to determine how much of the Beneficiary's overall time would be allocated to individual job duties within each of the two categories.

AAO: In addition, while not addressed in the Director's decision. the record shows that the Beneficiary owns 50% of both the foreign entity and the U.S. Petitioner. If this fact is established. it remains to be determined that the Beneficiary's services are for a temporary period. The regulation at 8 C.F.R. § 214.2(1)(3)(vii) states that if a beneficiary is an owner or major stockholder of the company. the petition must be accompanied by evidence that the beneficiary's services are to be used for a temporary period and that the beneficiary will be transferred to an assignment abroad upon the completion of the temporary services in the United States. In the absence of persuasive evidence. it cannot be concluded that the Beneficiary's services in this matter are to be used temporarily or that he will be transferred to an assignment abroad upon completion of his services in the United States. 

____________________________________________________________________________________

Date of Decision: 05/12/2016

Matter of C-S-, LLC. ID# 16544 (AAO May 12, 2016)

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

Foreign Country: India

Type of Company: Operating chain of retail stores

Type of Employment/Job title: President

New Office or Existing Office: New Office

Service Center: California Service Center

Decision: The Appeal is Dismissed

Site: https://www.uscis.gov/sites/default/files/err/D7%20-%20Intracompany%20Transferees%20(L-1A%20and%20L-1B)/Decisions_Issued_in_2016/MAY122016_01D7101.pdf

Rule:

Issues & Facts:
The Director concluded that the evidence of record did establish that the Beneficiary 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, or that the Petitioner has a qualifying relationship with the Beneficiary's foreign employer.

The Director noted that since ____was established in July 2014, and the Beneficiary has been in the United States since February 18, 2015, she could not have one continuous year of employment with the foreign entity. Further, the Director acknowledged the Petitioner's statement that the Beneficiary has been employed abroad in a “management'' position, but found that the Petitioner did not submit corroborating evidence to support this claim.

Petitioner claims the Beneficiary was an employee of an affiliated company for the required period of time. Provided documents were not enough.

Additionally, although not addressed by the Director, the Petitioner has not provided sufficient evidence to show that the Beneficiary was employed in a managerial or executive capacity with Although requested by the Director in her RFE, the Petitioner did not provide sufficient details regarding the Beneficiary's positions with either claimed foreign employer. The Petitioner has only stated that the Beneficiary served in a “Senior Position'' with both foreign entities. and as part of the "management and directorship." Without the requested information such as a detailed job description, organizational chart, and information regarding the Beneficiary's subordinates, we are unable to make a determination regarding the Beneficiary's employment capacity during the three years preceding the filing of the petition. Failure to submit requested evidence that precludes a material of inquiry shall be grounds for denying the petition. 8 C.F.R. § 103.2(b)(l4).

Finally, the Petitioner did not clarify what person or entity owns a 60% interest in the company. Furthermore, absent a proxy voting agreement and evidence that such an agreement would be legal under U.A.E. corporate law, the Petitioner has not established that the four minority non-U.A.E. citizens have control over the entity or that their individual ownership and control form the basis of an affiliate relationship between the Petitioner and the U.A.E. entity.

Similarly, the record contains insufficient evidence to establish that the Petitioner has a qualifying affiliate relationship with the Indian entity, The evidence reflects that 36 companies and individuals own the foreign entity in India. The record further demonstrates that three individuals own the petitioner in the United States. Accordingly, the two entities are not “owned and controlled by the same group of individuals, each individual owning controlling approximately the same share or proportion of each entity .... " 8 C.F.R. § 214.2(1)(1)(ii)(L)(2).

While the evidence in the record indicates that the Beneficiary has de jure control over the U.S. entity based upon her 60% majority ownership of the company, the Beneficiary owns only 36.04% of and the Petitioner has neither claimed nor submitted evidence to establish that she controls the Indian entity based on her minority ownership interest. The Petitioner asserts that all three entities are majority owned by members of the same family. However, this familial relationship does not constitute a qualifying relationship pursuant to the regulations. See Ore v. Clinton, 675 F.Supp.2d 217, 226 (D.C. Mass. 2009) (finding that the petitioner and the foreign company did not qualify as "affiliates" within the precise definition set out in the regulations at 8 C.F.R. § 214.2(l)(l)(ii)(L)(l), despite petitioner's claims that the two companies ''are owned and controlled by the same individuals, specifically the Ore family"). Finally, there is no parent entity with ownership and control of all three companies that could alternatively qualify them as affiliates. See 8 C.F.R. § 214.2(1)(1)(ii)(L)(J).

AAO: Beyond the decision of the Director, the Petitioner did not establish that its new office would support an executive or managerial position within one year of the approval of the petition

Here, our analysis of the Petitioner's new office operations is restricted by the Petitioner's lack of response to the Director's RFE. Although requested by the Director. the Petitioner did not submit a business plan or otherwise provide evidence to support the claimed scope of the entity. its proposed organizational structure, and its financial goals as well as the size of the U.S. investment.

The Petitioner provided a payroll document showing that its California location paid a total of $375.30 in wages to three employees in August 2015 and that these employees worked a collective total of 41.7 hours over a four week period. The Petitioner generally stated that it intends to hire 22 to 30 additional staff in the future, but did not provide a projected organizational chart. a time line for opening additional stores during the first year of operations. or any information regarding the staff that were already hired. While the Petitioner indicates that it will hire additional staff it has not outlined its financial objectives or include financial projections accounting for payments to be made to additional employees. Going on record without supporting documentary evidence is not sufficient for purposes of meeting the burden of proof in these proceedings. Matter of Soffici, 22 l&N Dec. at 165. Further, without a proposed organizational chart, job titles and position descriptions for proposed subordinates and other information regarding the types of employees to be hired. we cannot determine whether the company would grow to the point where the Beneficiary would be relieved from primarily performing non-qualifying duties associated with the day-to-day operations of the retail stores within one year.

Although the Petitioner provided evidence that it has opened two locations to date. the Petitioner claims it will expand into future locations. The evidence submitted does not show that the Petitioner has funding for additional stores or provide information regarding what the projected cost would be for further expansion in the next 12 months. The Petitioner stated that the Beneficiary has $200.000 for the initial investment and an additional $500.000 in reserve at the in However, the Beneficiary's account statement from this bank for the period December 14. 2014, to March 13. 2015. shows a maximum balance of AED 506,287 (equivalent to approximately $137,834), and an ending balance of AED 14,373.64 (equivalent to approximately $3.913). 

_____________________________________________________________________________________

Protect Your Future​!

Date of Decision: 05/19/2016

Matter of J-A-, LLC, ID# 16670 (AAO May 19, 2016)

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

Foreign Country: Mexico

Type of Company: Produce wholesaler and distributor

Type of Employment/Job Title: Executive Director

New Office or Existing Office: New Office

Service Center: California

Decision: The appeal is dismissed.

Site: https://www.uscis.gov/sites/default/files/err/D7%20-%20Intracompany%20Transferees%20(L-1A%20and%20L-1B)/Decisions_Issued_in_2016/MAY192016_01D7101.pdf

Issues & Facts:

The Director concluded that the Petitioner did not establish that it would employ the Beneficiary in a managerial or executive capacity within one year.

On the Form I-129. the Petitioner stated that it has three current employees in the United States and a gross annual income of $1 million. The Petitioner stated that the Beneficiary would act in an executive capacity, in which “she will direct the management of [the Petitioner], establishing the goals and policies of the organization, using her discretionary power," and report only to the company's two owners, __ and __. The Petitioner stated that the Beneficiary will be in charge of “general management and administrative duties”

The Director later issued a request for evidence (RFE) stating that the Petitioner did not sufficiently explain the Beneficiary's proposed position, the company's proposed organizational structure, or its financial ability to compensate the Beneficiary. As such, the Director requested that the Petitioner submit a letter describing its proposed number of employees and their positions. the amount of investment in the company, and how the venture will support the Beneficiary in a managerial or executive capacity within one year. The Director asked the Petitioner to provide an organizational chart reflecting all proposed positions, their duties, and expected education levels. In addition, the Director requested that the Petitioner submit a business plan. including timetables for each proposed action during the first year. along with evidence of the foreign employer's capital contribution to the company.

In denying the petition, the Director stated that the Petitioner had identified only two employees out of the fifteen listed in its proposed organizational chart, including the Beneficiary and the owners of the company. The Director pointed to the lack of evidence to demonstrate that the Petitioner employed or will employ "supportive personnel." The Director further found that the Petitioner did not provide sufficient detail regarding the foreign employer's capital contribution to the new venture. Accordingly, the Director concluded that the record did not contain sufficient information to establish that the new office would be able to support the Beneficiary in a managerial or executive capacity within one year.

To the extent that the Petitioner provides detail regarding the Beneficiary's proposed duties they were more reflective of the performance of non-qualifying sales tasks such as communicating with supermarkets regarding sales opportunities, expanding clients. and attending a regional sales exposition. In short the Petitioner did not clearly articulate how the Beneficiary's duties would be primarily qualifying within one year or describe the nature of these specific qualifying tasks within the context of the Petitioner's proposed staffing structure.

In the RFE. the Director requested that the Petitioner submit a detailed organizational chart reflecting each projected employee, their position titles. duties. expected educational qualifications and their projected salaries. However, in response. the Petitioner submitted no such organizational chart or specific evidence as to its projected hiring plans. evidence which is crucial to demonstrating that the Beneficiary will be primarily relieved from involvement in the day-to-day operations of the business within one year. Likewise, the Director asked the Petitioner to provide a business plan explaining the specific actions it would take to start up the company and a timetable for each of these proposed actions. Again, although the Petitioner provided some unsupported statements regarding its future plans. it did not explain how these would be accomplished or provide specific timetables for when these actions would be accomplished. Failure to submit requested evidence that precludes a material line of inquiry shall be grounds for denying the petition. 8 C.F.R. § 103.2(b)(14).

In addition, the Petitioner has provided little detail regarding its future hiring plans. such as the duties and expected credentials and salaries of those it plans to hire and the timing of these proposed hires. The Petitioner only vaguely mentions that it will hire several deliverymen in the future and add up to 13 employees. 

_____________________________________________________________________________________

Date of Decision: 05/02/2016

Matter of G-M- Corp., ID# 14124 (AAO May 2, 2016)

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

Foreign Country: Unknown

Type of Company: Import, export and distribution firm.

Type of Employment/Job title: Development Manager

New Office or Existing Office: Extending L-1A stats

Service Center: Vermont

Decision: The decision of the Director, Vermont Service Center. is withdrawn. The petition 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: https://www.uscis.gov/sites/default/files/err/D7%20-%20Intracompany%20Transferees%20(L-1A%20and%20L-1B)/Decisions_Issued_in_2016/MAY022016_02D7101.pdf

Rule:
The regulations define a qualifying organization as one doing business as an employer in the United States. See 8 C.F.R. § 214.2(l)(l)(ii)(2). "Doing business," is defined as the regular. systematic. and continuous provision of goods or services. See 8 C.F.R. § 214.2(l)(l)(ii)(H). In addition. a petitioner seeking to extend a petition that involved a new office must submit evidence that it has been doing business for the previous year. 8 C.F.R. § 214.2(1)(14)(ii)(B).

Issues & Facts:
The Director concluded that the Petitioner did not establish that the Beneficiary would be employed in a qualifying managerial or executive capacity in the United States.


In denying the petition. the Director found that the evidence demonstrated that the Beneficiary would primarily perform non-qualifying duties rather than managing an essential function of the organization as asserted. The Director stated that the record suggested that the Petitioner only employed the Beneficiary and three other employees performing duties for both the Petitioner and a claimed subsidiary.

Further, the Director pointed to evidence indicating that the Beneficiary was performing non-qualifying operational tasks, including interacting with customers and performing other sales related duties. The Director emphasized that the Petitioner did not demonstrate that the Beneficiary would oversee other supervisory. professional, or managerial employees. The Director pointed to evidence reflecting that the Beneficiary would perform managerial duties for companies other than the Petitioner, thereby leaving question as to the amount of time the Beneficiary would devote to the petitioning company.

On appeal, the Petitioner asserts that the Director erred in concluding that the Beneficiary will not act in a qualifying managerial or executive capacity. The Petitioner contends that the Director erroneously found that the Beneficiary had only one subordinate and did not consider eleven other subordinates who work for the Petitioner's claimed subsidiary. and over which the Beneficiary exercises supervisory control. The Petitioner further states that the Director mischaracterized the nature of a function manager's role, noting that the regulations do not require that a function manager oversee managerial supervisory or professional subordinates. The Petitioner asserts that the Beneficiary will manage an essential function of the organization, namely “implementing the Petitioner's objectives, policies, and strategies necessary to develop more substantial import, export and distribution processes in the United States... The Petitioner contends that given the size of its operations and the supporting evidence related thereto that it is clear that the Director did not adjudicate the matter according to the preponderance of the evidence standard. Upon review, the Petitioner's assertions are persuasive, in part, and we will withdraw the Director's decision dated February 12, 2015. First the Director did not properly consider and analyze whether the Petitioner acquired the company and whether the Beneficiary’s oversight of this acquired company qualified him as a manager or executive according to the regulations. In addition, the Director overemphasized the Beneficiary's apparent lack of managerial or professional subordinates and did not focus on the Petitioner's primary claim that the Beneficiary qualities as a function manager.

Although the Director's decision will be withdrawn. we cannot conclude that the evidence of record establishes that the Beneficiary will be employed in a qualifying managerial or executive capacity. Accordingly, the matter will be remanded to the Director for further review in accordance with our discussion below.

As noted, a primary basis of the Petitioner's claim is that it developed sufficiently during the first year of operations by acquiring a 51% interest in a ··wholesale liquidation firm... The Petitioner submitted evidence that this company earned over $2 million in revenue from January to September 2014 and its most recent IRS Form 941 Employer's Quarterly Federal Tax Return from the third quarter of 2014 reflected that the company employed eleven individuals. Otherwise. the Petitioner submitted little evidence that it had developed operations of its own during the first year. In fact, the Petitioner acknowledged that the company had earned little to no revenue during its first year and evidence provided indicated that the Beneficiary had been using the Petitioner as a means to investigate a number of different investment opportunities during the first year. As such. in order to conclude that the Petitioner has developed sufficiently during the first year to support the Beneficiary in a qualifying managerial capacity, we must analyze whether Petitioner established by a preponderance of the evidence that it acquired a majority interest.

AAO: At this time, we take no position on whether the Beneficiary meets this regulatory requirement. We will remand this matter to the Director for a new decision, particularly since the Director did not appropriately analyze whether the Petitioner had successfully acquired The Director should request any additional evidence deemed warranted to address the deficiencies noted with respect to the Petitioner's operations and whether they are sufficient to support the Beneficiary in a qualifying managerial or executive capacity. The burden of proof rests with the Petitioner. Section 291 of the Act, 8 U.S.C. § 1361.

AAO: Beyond the decision of the Director. the record as presently constituted does not establish that the Petitioner is doing business and has been doing business for at least one year, as required by the regulations. Accordingly, we will instruct the Director to review this issue on remand and request any additional evidence deemed necessary.

As noted. the Petitioner asserts that its operations are largely based upon its acquisition of, __, a company with 11 employees and substantial revenue. However, as addressed above, the Petitioner has not established with the evidence submitted that it acquired a controlling interest in ____and it did not provide evidence of other business operations during the previous year. Indeed, the Petitioner submitted an "Income Statement" dated July 31, 2014, reflecting that the company had earned no revenue as of that date and paid no salaries other than to the Beneficiary.

The Petitioner is also shown to use the same address as leaving question as to whether it can be shown to have operations independent of its claimed acquisition. Beyond the operations of the Petitioner submits little evidence that it is regularly providing goods and services, except for evidence reflecting the Beneficiary has been investigating a number of investment opportunities in the United States, in a number of cases through separate legal entities which have no documented ties to the Petitioner.

As such, this issue will be remanded to the Director and she should request additional evidence to clarify whether the Petitioner was doing business as of the date of the filing of the petition and had been doing business for the prior year.

____________________________________________________________________________________

Date of Decision: 05/17/2016

Matter of A-0- LLC, ID# 16477 (AAO May 17. 2016)

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

Foreign Country: Unknown

Type of Company: Convenience Store and Gas Station

Type of Employment/Job Title: General Director

New Office or Existing Office: Unknown

Service Center: Vermont

Decision: The appeal is dismissed.

Site: https://www.uscis.gov/sites/default/files/err/D7%20-%20Intracompany%20Transferees%20(L-1A%20and%20L-1B)/Decisions_Issued_in_2016/MAY172016_02D7101.pdf

Issues & Facts:

The evidence of record did not establish that the Beneficiary would be employed in a managerial or executive capacity.

On the Form I-129. the Petitioner indicated that it has six current employees in the United States and a gross annual income of$3.4 million.

The Petitioner submitted an undated organizational chart that depicts a board of directors (the Beneficiary and a president (the Beneficiary). an operations manager 1 and a manager. The chart depicts a cashier, a service deli clerk. a cook, a CPA/accountant and an un-named independent contractor reporting to the manager. The Petitioner also submitted job descriptions for each of these positions as well as a business plan.

The Petitioner submitted a copy of its IRS Form 1120S, U.S. Income Tax Return for an S Corporation, which shows that the company paid $0 in compensation of officers and $0 in salaries and wages in 2014. However, the Petitioner reported $64,043 in expenses for '·staff leasing.·· $3,075 in expenses for legal and professional services, and $3,708 paid to .. outside services/subcontractors ... The tax return also showed that the company paid $48,893 in ordinary business income paid to the sole shareholder of the business

The Director noted that the Petitioner submitted a vague position description that did not explain what types of duties the Beneficiary would perform on a daily basis. The Director also requested copies of the Petitioner's state quarterly wage reports along with payroll records for subordinate employees and additional documentation of its staffing levels. The Director further determined that due to the limited number of U.S. employees. the Petitioner had not established that the Beneficiary would be able to perform primarily managerial or executive functions.


AAO: Beyond the decision of the Director, we find that the Petitioner did not establish that it has a qualifying relationship with the Beneficiary's foreign employer.

On the Form I-129. the Petitioner stated that it is a subsidiary of the Beneficiary's foreign employer, the record contains a copy of the share purchase and sale agreement for the foreign entity to purchase a 51% ownership interest in the Petitioner which is dated April 10. 2015. Although this document was signed prior to the filing of the petition, the closing date of the sale was scheduled for August 15, 2015. and it includes an escrow certification which states: “the purchase of shares of is subject to procuring an L-1 A status on or before the closing date.'

Based upon the terms of the share purchase and sale agreement. the foreign entity's purchase of a majority ownership interest in the petitioning company was entirely contingent upon the Petitioner obtaining an approval of this petition. 

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Synopsis of L-1A AAO Decisions for 05/2016


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

Date of Decision: 05/24/2016

Matter of Y-I-, Inc., ID# 17179 (AAO May 23, 2016)

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

Foreign Country:

Type of Company: Technology start up business

Type of Employment/Job title: President and Chief Executive Officer

New Office or Existing Office: New Office

Service Center: California

Decision: The decision of the Director, California Service Center, is withdrawn. The matter is remanded to the Director, California Service Center, for further proceedings consistent with the foregoing opinion and for the entry of a new decision.

Site: https://www.uscis.gov/sites/default/files/err/D7%20-%20Intracompany%20Transferees%20(L-1A%20and%20L-1B)/Decisions_Issued_in_2016/MAY232016_03D7101.pdf

Issues & Facts:

The Director concluded that the Petitioner did not establish that it has a qualifying relationship with the Beneficiary's foreign employer.

In denying the petition, the Director acknowledged that the Petitioner submitted stock certificates, a stock purchase agreement, and other documentation in support of its claim that it is a wholly-owned subsidiary of the Beneficiary's foreign employer. The Director denied the petition after determining that the Petitioner "did not provide sufficient evidence to demonstrate the foreign company has deposited or transferred any capital contribution into the U.S. bank account to support the U.S. company and to show ownership and control." On appeal, the Petitioner maintains that it is wholly-owned by the foreign entity. The Petitioner emphasizes that under the California Corporation Code, "the consideration for shares of stock is not limited to cash or bank wire transfer deposits," but rather the consideration provided can be in many forms including "debt cancellation" as long as the stock issuing corporation's Board of Directors approves the issuance of shares. The Petitioner states that it provided evidence that the foreign entity has paid all startup expenses for the new office and that such debts owed by the Petitioner to the foreign entity have been canceled as a form of consideration in exchange for issuance of the Petitioner's I 00 shares of stock. The Petitioner further asserts that it provided evidence that its Board of Directors has approved and memorialized this stock purchase transaction. AAO reviewed the California Corporation Code and the evidence submitted on appeal and concluded that the record includes sufficient evidence to establish that the Petitioner has a qualifying relationship with the Beneficiary's foreign employer.

AAO: New Office Requirements. Upon review, we find insufficient evidence to establish that the intended United States operation, within one year of the approval of the petition, will support an executive or managerial position. In order to support a new office petitiOn, the Petitioner must submit sufficient evidence to demonstrate a realistic expectation that the enterprise will succeed and rapidly expand as it moves away from the developmental stage to full operations, where there would be an actual need for a manager or executive who will primarily perform qualifying duties.

In this matter, the Petitioner has not provided consistent information regarding its proposed staffing and organizational structure or sufficiently detailed information regarding its financial goals for its initial year of operations.

The Petitioner filed the Form i-129 on May 1, 2015. The Petitioner initially submitted a business plan stating that it would, inter alia, hire (I) "1-2 business developers to help get partners" in quarters two, three, and four of 2015; (2) "2-5 account managers to manage new clients and to increase sales" in quarters three and four of2015; and (3) "1-3 business developers" and expand the "sales team up to 10 people in total in 2016." The Petitioner's business plan provided projected gross income figures for the years 2015, 2016, and 2017, but did not include a breakdown of startup costs or anticipated operating expenses, such as rent and salary expenses, for the first year of operations. Further, the business plan did not include position descriptions for proposed employees or their anticipated salaries.

In response to the Director's request for evidence (RFE), the Petitioner stated that it would initially hire a vice president of sales, followed by a vice president of business, and then a vice president of marketing, in the first year of operations. The Petitioner also indicated that it would hire three 'junior employees" during the first year of operations. The Petitioner's proposed organizational chart shows the Beneficiary supervising a vice president of sales, a vice president of business development, and a vice president of marketing. The chart depicts two account manager positions that would report to the vice president of sales, and a content creator who would report to the vice president of marketing. The Petitioner did not provide an updated business plan or include information regarding the anticipated duties and salaries of the vice presidents and other staff. The record also included the foreign entity's meeting minutes from December 2014, indicating that it intends to reroute current U.S. sales of $15,000 per month to the Petitioner, and noting that "this will give the new company an initial first year investment of [approximately J $180,000." In sum, the Petitioner did not provide a consistent explanation regarding its hiring plans and organizational structure for the first year of operations, nor did it include information regarding salaries for its potential employees and its other anticipated operating expenses. The record also does not include sufficient evidence of the anticipated U.S. contracted sales.

The Petitioner submitted a six-month lease, ending August 14, 2015, for space located in a startup facility. The lease is for one desk with use of common rooms for meetings. The Petitioner indicated, in response to the Director's RFE, that it "intends to operate this office as the business development center" and that the "workstation will be used as the 'hotelling' office for sales representatives to use when they are not out soliciting new clients." The Petitioner also stated that its leased space can expand to include I 00 people. The photographs of the leased space, while identifying other companies, do not identify the Petitioner as a tenant.

The Petitioner has not submitted evidence that the lease has been extended or that it has secured sufficient physical premises in another location. The Petitioner also does not provide a plan identifying when it will expand its offices to accommodate its senior, non-sales employees. It is not clear from the record that the leased office space will be sufficient for the number of senior employees the Petitioner states it intends to hire during the first year of operations. Moreover, the record does not include information, such as anticipated rent expenses for the first year of operations, indicating that it intends to expand beyond the current leased premises. The record as presently constituted is not sufficient to establish that the Petitioner has secured sufficient physical premises to support its planned operations. 

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Date of Decision: 05/09/2016

Matter of UMSE-. Inc., ID# 13673 (AAO May 9, 2016)

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

Foreign Country: Unknown

Type of Company: Retail sale of popular range items to convenience stores

Type of Employment/Job title: Director/President

New Office or Existing Office: Extending L-1A status

Service Center: Vermont

Decision: Appeal is Dismissed.

Site: https://www.uscis.gov/sites/default/files/err/D7%20-%20Intracompany%20Transferees%20(L-1A%20and%20L-1B)/Decisions_Issued_in_2016/MAY092016_02D7101.pdf

Rule:

Issues & Facts:
The Director concluded that the Petitioner had not established that (1) it would employ the Beneficiary in a managerial or executive capacity, and (2) it has the necessary premises to house its business operation.

On the Form 1-129. the Petitioner indicated that it has seven current employees in the United States and a gross annual income of $571,800.

The Beneficiary's Form W-2 shows that the Beneficiary received $45.000 in total wages for 2011. The Petitioner also provided the Beneficiary's monthly pay stubs for July 1, 2011. through December 31, 2011. showing a year to date total gross salary of $22,500. The Director concluded that the Petitioner did not establish that it has the financial capability of supporting a staff of employees sufficient to support the Beneficiary in a qualifying managerial or executive capacity.

In the present matter. the Director notified the Petitioner that the job descriptions it submitted regarding the Beneficiary's U.S. employment were insufficient. as they did not include a detailed breakdown of the Beneficiary's assigned list of job duties. The Director also informed the Petitioner that the record contained insufficient information regarding the job duties assigned to the remainder of the support personnel. However, despite these adverse findings, the Petitioner reiterated information included in earlier submissions with regard to the Beneficiary's U.S. employment and declined to submit the requested information pertaining to the Petitioner's support staff. Furthermore, as previously noted in the above discussion of the evidence of record. the Petitioner provided a nearly identical job description and percentage breakdown of the time the Beneficiary would devote to his duties in both the initial letter of support and in response to the RFE. despite the Director's request for a more detailed overview of the Beneficiary's position.

In addition, we find that the content of the job description lacked sufficient detail to convey a meaningful understanding of the actual daily tasks the Beneficiary would perform within the context of the retail business it originally claimed as its operation. For instance, the Petitioner claimed that the Beneficiary would be responsible for “strategic analysis of opportunities and competitive profiling of the company." However, the Petitioner did not explain what specific tasks would be representative of “strategic analysis" or clarify what specific opportunities the Beneficiary would analyze. The Petitioner also did not explain how the Beneficiary would organize and coordinate its “managerial force" or which employees comprised the managerial force. While the Petitioner provided what it claimed was its updated organizational chart in support of its second motion. it is unclear whether that chart represented the organizational structure that the Petitioner had in place at the time it filed the instant petition.

Further, in reviewing the contents of the Petitioner's most recent submissions. it appears that the Petitioner no longer operates a business whose main focus is the retail of food. general goods. and gift items, as was originally claimed at Part 5, No. 11 of the Form I-129. Rather, the Petitioner now claims to operate an entirely different business. whose focus is skin care. rather than retail. This significant change gives rise to questions concerning any changes that would necessarily be reflected in the Petitioner's organizational structure as well as the Beneficiary's job duties and changed role within the new business enterprise. It appears that even if the Beneficiary's previously offered job description was complete with the requested information, it would no longer be applicable to the changed circumstances of the Petitioner's new business operation. As previously stated. a petitioner must establish that the position offered to the beneficiary when the petition was tiled merits classification as a managerial or executive position. ld at 249. A petitioner may not make material changes to a petition in an effort to make a deficient petition conform to USCIS requirements. See Matter of Izummi. 22 I&N Dec. 169. 176 (Assoc. Comm 'r 1998). Here, the Petitioner provides evidence to show that the facts and circumstances that existed at the time the petition was filed no longer apply.

Sufficient premises: the lease agreement they had started with had expired and new proof of premises was not provided.

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Date of Decision: 05/24/2016

Matter of C-M-0-, Inc., ID# 16843 (AAO May 24, 2016)

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

Foreign Country: Unknown

Type of Company: Consulting Services and Operating a Convenience Store

Type of Employment/Job title: General Manager

New Office or Existing Office: New Office

Service Center: Vermont

Decision: The Appeal is Dismissed.

Site: https://www.uscis.gov/sites/default/files/err/D7%20-%20Intracompany%20Transferees%20(L-1A%20and%20L-1B)/Decisions_Issued_in_2016/MAY242016_03D7101.pdf

Issues & Facts:

The Director concluded that the Petitioner did not establish that: (I) the Beneficiary's duties will be primarily executive or that its new business can support the Beneficiary's position within the first year, and (2) it has acquired sufficient physical premises to commence its operation as a consulting business and convenience store.

Premises: The Petitioner submitted a Shopping Center Lease. the Petitioner listed the leased premises as its office location and stated that "[a] well-located office was already leased, large enough to accommodate our office and the Marketing Unit, and even so, we plan to grow fast, we believe that a better and larger office space will be needed in short time."

The Director issued a request for evidence (RFE), advising the Petitioner that the lease agreement showed that the acquired premises can only be used to operate a convenience store and market, thus the Petitioner did not demonstrate that it secured sufficient space to house its new business that will be performing consulting services and intermediating the operations of imports and exports. The Director instructed the Petitioner to submit evidence demonstrating that it acquired sufficient physical premises to house the new office of the petitioning U.S. company.

Here, the Petitioner submitted its lease for a convenience store/market retail space. The lease specifically states that the premises shall be used exclusively as a convenience store and market. The landlord's letter simply stated that the Beneficiary represented that she will be operating an "administrative office" at the same location as the market, but did not clarify that the leased premises contained such a space or that the "administrative office" would be related to the Petitioner's consulting business. The lease does not describe actual premises and does not specify that office space is available. The photos submitted for the Petitioner's leased premises show three desks and minimal office equipment, but the actual physical location of this office space is not identified, nor is the photographed office space identified as office space exclusively for the petitioning U.S. company.

Further, according to the Salary Expenses projected for the first year in the Petitioner's business plan, it will have a total of 11 employees that would require office space. Given this number of expected employees, it is unclear where the Petitioner will house its employees as a new office. The Petitioner did not describe its existing physical premises nor did it explain how the premises would be sufficient for it to conduct its business.

Proper Employment: In the RFE, the Director advised the Petitioner that a review of the Beneficiary's duties are vague and broad and do not detail the Beneficiary's hourly duties. The Director further noted that the Petitioner did not provide a timeline for hiring the additional listed employees or what the educational requirements will be.

In denying the petition, the Director noted that, although specifically requested in the RFE, the Petitioner did not provide any information relating to the timeline for hiring the listed individuals or the educational requirements for the positions. The Director further noted that the Petitioner did not provide sufficient evidence to show any type of consulting business in the United States. The Director found that based on the Petitioner's intended employees' duties, including those of the Beneficiary, and the scope of its business, it did not demonstrate that the Beneficiary's duties will be primarily executive and that its new business can support the Beneficiary's position within its first year of operations.

The provided Work Schedule contradicts the lists of proposed job duties provided by the Beneficiary and does not account for the majority of the listed duties. This is significant as it raises concerns about the validity of the information provided, as it pertains to the Beneficiary's proposed position, and further does not establish that she will be primarily employed in an executive capacity.

The Petitioner has not submitted evidence that it has, or will have, staff that will relieve the Beneficiary from performing non-qualifying operational and administrative duties at the U.S. company within one year of approval of the petition.

In the instant matter, the Petitioner stated that it will provide consulting services for other companies and also operate a retail convenience store. The Petitioner leased retail space and has begun operations as a 24-hour convenience store in Florida. However, the Petitioner has not provided any information about its retail store, such as who will manage the retail store, what duties the Beneficiary will perform related to the retail store component of its operation, if any, how many current or proposed employees will be hired to operate the 24-hour convenience store, the timeline for hiring the retail store employees, or what duties the Beneficiary's current proposed subordinates will perform relating to the retail store.

AAO: Foreign employment. The Petitioner characterized the Beneficiary's role as Systems Director at the foreign entity and provided a broad and vague list of job duties, listed above, for her position abroad that does not establish that she has been primarily employed in an executive capacity. The Petitioner did not submit a detailed description of the Beneficiary's foreign position sufficient to establish that the Beneficiary's daily routine consists of primarily executive duties, rather than on providing the services or producing the products of the organization. Other than an organizational chart and blanket assertions that the Beneficiary has professional and supervisory subordinates, the Petitioner has not submitted evidence that it has staff that relieves her from performing non-qualifying operational and administrative duties at the foreign entity.

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