MATTER OF F-0-A-0-W-A-W-, INC.

APPEAL OF VERMONT SERVICE CENTER DECISION

Non-Precedent Decision of the Administrative Appeals Office

DATE: NOV. 17, 2016

PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER

The Petitioner, a non-profit organization engaging in working toward permanent peace in Sri Lanka, seeks to extend the Beneficiary's temporary employment as its chief executive officer under the L-1 A nonimmigrant classification for intracompany transferees. See Immigration and Nationality Act (the Act) section 101(a)(15)(L), 8 U.S.C. § 1101(a)(15)(L). TheL-IA classification allows a corporation or other legal entity (including its affiliate or subsidiary) to transfer a qualifYing foreign employee to the United States to work temporarily in an executive or managerial capacity.

The Director, Vermont Service Center, denied the petition on three alternate grounds, concluding that the Petitioner did not establish that (1) a qualifying relationship exists between the U.S. company and the foreign entity; (2) the U.S. company is actively engaged in business activity; and (3) the Beneficiary will be employed in a primarily managerial or executive capacity under the extended petition.

The matter is now before us on appeal. In its appeal, the Petitioner submits a brief and asserts that the U.S. company is listed as a branch of the foreign entity and therefore they have a qualifying relationship. The Petitioner also states that it is difficult to establish that the Beneficiary is performing managerial duties when the company is still in the early stages of formation and is still in the process of soliciting employees for hire.

Upon de novo review, we will dismiss the appeal.

I. LEGAL FRAMEWORK

To establish eligibility for the L-1 nonimmigrant visa classification, a qualifying organization must have employed the Beneficiary in a managerial or executive capacity, or in a specialized knowledge capacity, for one continuous year within three years preceding the Beneficiary's application for admission into the United States. Section 101(a)(15)(L) of the Act. In addition, the Beneficiary must seek to enter the United States temporarily to continue rendering his or her services to the same employer or a subsidiary or affiliate thereof in a managerial, executive, or specialized knowledge capacity. Id.

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The regulation at 8 C.F.R. § 214.2(1)(3) states that an individual petition filed on Form l-129, Petition for a Nonimmigrant Worker, shall be accompanied by:

(i) Evidence that the petitioner and the organization which employed or will employ the alien are qualifying organizations as defined in paragraph (1)(1 )(ii)(G) of this section.

(ii) Evidence that the alien will be employed in an executive, managerial, or specialized knowledge capacity, including a detailed description of the services to be performed.

(iii) Evidence that the alien has at least one continuous year of full-time employment abroad with a qualifying organization within the three years preceding the filing of the petition.

(iv) Evidence that the alien's prior year of employment abroad was in a position that was managerial, executive or involved specialized knowledge and that the alien's prior education, training, and employment qualifies him/her to perform the intended services in the United States; however, the work in the United States need not be the same work which the alien performed abroad.

The regulation at 8 C.F.R. § 214.2(1)(14)(ii) also provides that a visa petition, which involved the opening of a new office, may be extended by filing a new Form I-129, accompanied by the following:

(A) Evidence that the United States and foreign entitles are still qualifying organizations as defined in paragraph (1)(1 )(ii)(G) of this section;

(B) Evidence that the United States entity has been doing business as defined in paragraph (1)(1 )(ii)(H) of this section for the previous year;

(C) A statement of the duties performed by the beneficiary for the previous year and the duties the beneficiary will perform under the extended petition;

(D) A statement describing the staffing of the new operation, including the number of employees and types of positions held accompanied by evidence of wages paid to employees when the beneficiary will be employed in a management or executive capacity; and

(E) Evidence of the financial status of the United States operation.

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II. QUALIFYING RELATIONSHIP

The Director denied the petition, in part, based on a finding that the Petitioner did not establish that the Beneficiary's foreign employer and the U.S. company are qualifying organizations. To establish a "qualifying relationship" under the Act and the regulations, the petitioner must show that the beneficiary's foreign employer and the proposed U.S. employer are the same employer (i.e. one entity with "branch" offices), or related as a "parent and subsidiary" or as "affiliates." See generally section 101(a)(15)(L) ofthe Act; 8 C.F.R. § 214.2(1).

A. Discussion

On the L Supplement to Form 1-129, where asked to describe the percentage of stock ownership and managerial control of each company that has a qualifying relationship, the Petitioner stated that the U.S. company "is a branch of'' the foreign entity.

The Petitioner submitted a Certificate of Registration and Articles of Association of the foreign entity identifying it as a non-profit, non-governmental organization in Sri Lanka, along with financial audits from 2014 and 2015.

The Petitioner submitted an Application for Authority of the foreign entity to pursue its non-profit activities in the state ofNew York, dated February 28,2014.

In response to the RFE, the Petitioner stated that the Beneficiary "is employed by the branch organization in the United States[; and] because an overseas non-government organization cannot solicit funds in the United States, it was necessary to incorporate [the Petitioner]. These are one and the same organization as indicated in our letter of November 7, 2014." 1

The Petitioner then submitted a Certificate of Incorporation for the U.S. company, dated March 31, 2014, as a non-profit organization. The Petitioner also submitted a copy of its Internal Revenue Service letter identifying it as a tax-exempt organization pursuant to section 501(c)(3) of the Internal Revenue Code.

In denying the petition, the Director found that the record does not contain any evidence to establish that the U.S. company has a qualifying relationship with the foreign entity as a branch. The Director noted that the U.S. company incorporation documents do not reference the foreign entity and the foreign entity's corporation documents do not reference the U.S. company.

On appeal, the Petitioner contends that the U.S. company was initially incorporated under the name of the foreign entity, but the term "Friends of'' had to be added to the corporate name because a

1 We note that the Petitioner did not provide a copy of the November 7, 2014 letter referenced in the response to the RFE.

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foreign entity cannot be incorporated in the United States for the purposes of soliciting funds. The Petitioner then refers to the definition of "organization" found in section 101(a)(28) of the Act, which states:

The term "organization" means, but is not limited to, an organization, corporation, company, partnership, association, trust, foundation or fund; and includes a group of persons, whether or not incorporated, permanently or temporarily associated together with joint action on any subject or subjects.

The Petitioner goes on to state the following about its qualifying relationship with the foreign entity:

It is our contention that [the foreign entity] and [the Petitioner] constitute a qualifying association within the meaning of the law. The ownership and control of both entities must be the same for a finding of a same employer, parent/subsidiary, or affiliate relationship as required by the statute.

The ownership and control of both entities are the same. The purpose of these organizations are the same. Three members of the board of directors of [the foreign entity], are on the Board of [the Petitioner]. The founder and Chairperson of [the foreign entity], is also founder and chairperson of [the Petitioner].

The interpretation of qualifying companies is very broad and there have been inconsistencies in [USCIS'] interpretation of 8 U.S.C. § 110l(a)(15)(L), which should be interpreted in the very broad sense to include all forms of organizations ..

Further, the Petitioner contends that it submitted an audited financial statement from the foreign entity listing the U.S. company as a branch and that firms that have related or financial interests may be treated as though they are affiliated.

Here, the Petitioner has not presented evidence to demonstrate that it is a branch office of the foreign entity, but rather, that it is a separate legal entity incorporated in the United States. Regardless of its status as a non-profit entity, if the petitioner submits evidence to show that it is incorporated in the United States, then that entity will not qualify as "an ... office of the same organization housed in a different location," since that corporation is a distinct legal entity separate and apart from the foreign organization. See Matter of M, 8 I&N Dec. 24, 50 (BIA 1958, AG 1958); Matter of Aphrodite Investments Limited, 17 I&N Dec. 530 (Comm 'r 1980); and Matter ofTessel, 17 I&N Dec. 631 (Act. Assoc. Comm 'r 1980). If the claimed branch is incorporated in the United States, USCIS must examine the ownership and control of that corporation to determine whether it qualifies as a subsidiary or affiliate of the foreign employer. In the instant matter, the Petitioner has not submitted any evidence of ownership of the U.S. company and simply states that it is the same as the foreign entity or that it is a branch of the foreign entity in the United States.

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In defining the nonimmigrant classification, the regulations specifically provide for the temporary admission of an intracompany transferee "to the United States to be employed by a parent, branch, affiliate, or subsidiary of [the foreign firm, corporation, or other legal entity]." 8 C.F.R. § 214.2(1)(1 )(i) (emphasis added). The regulations define the term "branch" as "an operating division or office of the same organization housed in a different location." 8 C.F.R. § 214.2(l)(l)(ii)(J). USCIS has recognized that the branch office of a foreign corporation may file a nonimmigrant petition for an intracompany transferee. See; Matter of Leblanc, 13 I&N Dec. 816 (Reg. Comm'r 1971 ); Matter of Schick, 13 I&N Dec. 64 7 (Reg. Comm 'r 1970); see also Matter of Penner, 18 I&N Dec. 49, 54 (Comm'r 1982) (stating that a Canadian corporation may not petition for L-1 B employees who are directly employed by the Canadian office rather than a United States ot1ice). To the extent a petitioner seeks to establish that it is a branch office in the United States, it must demonstrate that it is bound to the foreign entity through common ownership and management. A branch that is authorized to do business under United States law becomes, in effect, part of the national industry. Matter of Schick, supra at 649-50.

Probative evidence of a branch office would include the following: a state business license establishing that the foreign corporation is authorized to engage in business activities in the United States; copies of Internal Revenue Service (IRS) Forms 1120-F, U.S. Income Tax Return of a Foreign Corporation; copies IRS Forms 941, Employer's Quarterly Federal Tax Returns, listing the branch office as the employer; copies of a lease for office space in the United States; and/or any state tax forms or other relevant evidence demonstrating that the petitioner is a branch office of a foreign entity. Here, the Petitioner has not provided that evidence.

Based on the evidence in the record, the Petitioner has not established that the Beneficiary's foreign employer and the U.S. company are qualifying organizations.

III. U.S. COMPANY DOING BUSINESS

The Director denied the petition, in part, based on a finding that the Petitioner did not establish that it is a qualifying organization doing business in the United States. Specifically, the regulation at 8 C.F.R. § 214.2(l)(l)(ii)(H) defines that term as:

Doing business means the regular, systematic and continuous provision of goods and/or services by a qualifying organization and does not include the mere presence of an agent or office of the qualifying organization in the United States and abroad.

A. Discussion

When a petition indicates that a beneficiary is coming to the United States to open a "new office," it must show that it is ready to commence doing business immediately upon approval. At the time of filing the petition to open a "new office," a petitioner must affirmatively demonstrate that it has acquired sufficient physical premises to commence business, that it has the financial ability to

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commence doing business in the United States, and that it will support the beneficiary in a managerial or executive position within one year of approval. See generally, 8 C.F.R. § 214.2(1)(3)(v). If approved, the beneficiaryis granted a one-year period of stay to open the "new office." 8 C.F.R. § 214.2(1)(7)(i)(A)(3). At the end of the one-year period, when the petitioner seeks an extension of the "new office" petition, the regulation at 8 C.F .R. § 214.2(1)( 14 )(ii)(B) requires the petitioner to demonstrate that it has been doing business "for the previous year" through the regular, systematic, and continuous provision of goods or services. See 8 C.F.R. § 214.2(1)(1)(ii)(H) (defining the term "doing business"). The mere presence of an agent or office of the qualifying organization will not suffice. Jd.

In the instant matter, the Petitioner has not submitted sufficient evidence in support of the U.S. company's business operations during the year preceding the filing of the petition, February 2015 to February 2016. In support of the petition, the Petitioner submitted its office lease, dated December 21,2015, and commencing on January 1, 2016, for one year. The Petitioner submitted receipts for online purchases of furniture and tools, all dated after January 1, 2016. The Petitioner also submitted bank statements showing minimal activity with two incoming wire transfers and limited debit card purchases from November 1, 2015 to January 31,2016.

On appeal, the Petitioner states that it is given one year to organize itself~ "but that one year is not a firm and definite amount of time[;] it takes some companies more than one year to accomplish this goal." The Petitioner states that "because of the nature of [the U.S. company's] functions, it is very difficult to meet any deadline with regard to doing business and hiring employees."

Here, the Petitioner has not provided any evidence of its actual operations from February 2015 to December 2015. The Petitioner's lease agreement didn't commence until January 1, 2016, which is 11 months after it was supposed to have commenced its operations in the United States. Not only are the online furniture purchases insufficient to demonstrate that a company is doing business, the furniture was purchased in January 2016, which again, is 11 months after the Petitioner was supposed to have commenced its operations in the United States. Aside from the fact that the bank statements provided start at November 2015, which is nine months after the Petitioner was supposed to have commenced its operations in the United States, the minimal activity shown on the bank statements also does not demonstrate that the Petitioner has been doing business in the United States. Based on the evidence in the record, and the Petitioner's assertions on appeal, we cannot conclude that the Petitioner has been doing business in a regular, systematic, and continuous manner for the previOus year.

Despite the petitioner's assertions, it may not be granted a second "new office" L-1 A visa approval. The nonimmigrant intracompany transferee visa is not an entrepreneurial visa classification allowing a beneficiary a prolonged stay in the United States in a non-managerial or non-executive capacity to start up a new business. The regulations allow for a one-year period for the U.S. entity to commence doing business and develop to the point that it will support the beneficiary in a qualifying managerial or executive position. By allowing multiple petitions under a more lenient standard, USCIS would allow foreign entities to create under-funded, under-staffed, or even inactive companies in the

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United States, with the expectation that they could receive multiple extensions of their L-1 status without primarily engaging in managerial or executive duties. The only provision that allows for the extension of a "new office" visa petition requires the petitioner to demonstrate that it is staffed and has been "doing business" in a regular, systematic, and continuous manner for the previous year. 8 C.P.R. § 214.2(1)(14)(ii).

Based on the evidence in the record, the Petitioner has not established that its petitioning U.S. company has been doing business in the United States for one year prior to filing the instant petition.

IV. U.S. EMPLOYMENT IN A MANAGERIAL OR EXECUTIVE CAPACITY

The Director denied the petition, in part, based on a finding that the Petitioner did not establish that the Beneficiary will be employed in a managerial or executive capacity under the extended petition. The Petitioner has not specifically described the Beneficiary's proposed position as either managerial or executive. Therefore, our analysis will explore both.

Section 101(a)(44)(A) ofthe Act, 8 U.S.C. § 1101(a)(44)(A), defines the term "managerial capacity" as "an assignment within an organization in which the employee primarily":

(i) manages the organization, or a department, subdivision, function, or component of the organization;

(ii) supervises and controls the work of other supervisory, professional, or managerial employees, or manages an essential function within the organization, or a department or subdivision of the organization;

(iii) if another employee or other employees are directly supervised, has the authority to hire and fire or recommend those as well as other personnel actions (such as promotion and leave authorization), or if no other employee is directly supervised, functions at a senior level within the organizational hierarchy or with respect to the function managed; and

(iv) exercises discretion over the day-to-day operations of the activity or function for which the employee has authority.

Further, "a first-line supervisor is not considered to be acting in a managerial capacity merely by virtue ofthe supervisor's supervisory duties unless the employees supervised are professional." ld.

Section 101(a)(44)(B) of the Act, 8 U.S.C. § 1101(a)(44)(B), defines the term "executive capacity" as "an assignment within an organization in which the employee primarily":

(i) directs the management of the organization or a major component or function of the organization;

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(ii) establishes the goals and policies of the organization, component, or function;

(iii) exercises wide latitude in discretionary decision-making; and

(iv) receives only general supervision or direction from higher-level executives, the board of directors, or stockholders of the organization.

If staffing levels are used as a factor in determining whether an individual is acting in a managerial or executive capacity, U.S. Citizenship and Immigration Services (USCIS) must take into account the reasonable needs of the organization, in light of the overall purpose and stage of development of the organization. See section 101(a)(44)(C) ofthe Act.

A. Discussion

Upon review of the petition and the evidence of record, including materials submitted in support of the appeal, we conclude that the Petitioner has not established that the Beneficiary would be employed in a managerial or executive capacity under the extended petition.

When examining the managerial or executive capacity of the Beneficiary, we will look first to the Petitioner's description of the job duties. See 8 C.F .R. § 214.2(1)(3)(ii). The Petitioner's description of the job duties must clearly describe the duties to be performed by the Beneficiary and indicate whether such duties are in a managerial or executive capacity. !d.

The definitions of managerial and executive capacity each have two parts. First, the Petitioner must show that the Beneficiary will perform certain high-level responsibilities. Champion World, Inc. v. INS, 940 F.2d 1533 (9th Cir. 1991) (unpublished table decision). Second, the Petitioner must prove that the Beneficiary will be primarily engaged in managerial or executive duties, as opposed to ordinary operational activities alongside the Petitioner's other employees. See Family Inc. v. VSCIS, 469 F.3d 1313, 1316 (9th Cir. 2006); Champion World, 940 F.2d 1533.

In the L Classification Supplement to Form 1-129, where asked to describe the Beneficiary's proposed duties in the United States, the Petitioner stated that the Beneficiary will "manage new company[;] negotiate and sign contracts for office space and vendor agreements[; and] hire and train staff for non-profit."

In its initial letter of support, the Petitioner listed the Beneficiary's proposed job duties as follows:

• Coordinate the activities relating to the establishment of a new office • Hire, train, and supervise lower level management personnel • Negotiate contractual agreements with landlord, vendors and contractors

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• Represent [the foreign entity] at the United Nations to continue to secure donors and collaborative partners to advance the organizations' interests in Sri Lanka

• Identify additional institutional funders and formulate proposals to secure funding • Establish and maintain effective working relationship with institutional funders,

governmental representatives and project partners • Supervise and review the activities of subordinate managers • Chair regular board meetings and provide information as requested by board

members • Ensure that municipal and federal regulations relating to operations of non-profit

organizations are adhered to • Liaise with [the foreign entity] in Sri Lanka and prepare necessary reports

This list of job duties was vague and did not provide any insight as to what the Beneficiary would actually do on a day-to-day basis. While the broadly stated responsibilities suggest that the Beneficiary would have managerial authority over the petitioning company, there is insufficient detail to establish that his actual duties would be primarily managerial or executive in nature. 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. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1103, 1108 (E.D.N.Y. 1989),

. aff'd, 905 F .2d 41 (2d. Cir. 1990).

In response to the Director's request for evidence (RFE), the Petitioner submitted a letter stating that the U.S. company represents the interests of the foreign entity at the United Nations and while the Beneficiary is employed by the U.S. company, he represents the foreign entity. The Petitioner also stated that, as the head of the company in the United States, the Beneficiary has the authority to hire, train, supervise, and terminate the services of future employees.

Here, rather than providing clarification on the Beneficiary's proposed duties and additional details about the actual tasks he will perform in carrying out his listed duties, the Petitioner did not provide any information. The Petitioner, again, has not provided any insight as to what the Beneficiary will actually be doing on a day-to-day basis under the extended petition. The Petitioner did not provide any additional information about the Beneficiary's duties or how much time he will devote to each of them. The Petitioner's description of the Beneficiary's job duties does not establish what proportion of the Beneficiary's duties will be managerial or executive in nature, if any, and what proportion will be non-managerial or non-executive. See Republic ofTranskei v. INS, 923 F.2d 175, 177 (D.C. Cir. 1991 ). These general statements do not offer any clarification as to the Beneficiary's actual proposed duties in the United States, and fall considerably short of demonstrating that that the Beneficiary will primarily manage the organization,· supervise and control the work of other supervisory, professional, or managerial employees, direct the management of the organization, or establish goals and policies. Reciting the beneficiary's vague job responsibilities or broadly-cast business objectives is not sufficient; the regulations require a detailed description of the beneficiary's daily job duties. The petitioner has not provided any detail or explanation of the beneficiary's proposed activities in the course of his daily routine. The actual duties themselves will

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reveal the true nature ofthe employment. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. at 1108, af('d, 905 F.2d 41 (2d. Cir. 1990).

Beyond the required description of the job duties, USCIS reviews the totality of the record when examining the claimed managerial or executive capacity of a beneficiary, including the company's organizational structure, the duties of the beneficiary's subordinate employees, the presence of other employees to relieve the beneficiary from performing operational duties, the nature of the business, and any other factors that will contribute to understanding a beneficiary's actual duties and role in a business.

In response to the RFE, the Petitioner also addressed its lack of employees and stated that, as a non-profit organization, it has delayed the significant outlay of cash involved in acquiring other managerial staff. The Petitioner refers to its business plan which states that it would use interns during its first year of operations and major hires would take place in its second year. The Petitioner submitted an organizational chart for the U.S. company, listing a manager, a project manager, and a fundraising manager, all directly subordinate to the Beneficiary, and all "to be hired." The Petitioner also submitted a document detailing its interns during its first year of operations, listing one intern as "full-time administrative support," and four additional interns as "part-time administrative support," among other representational tasks.

In this matter, the proposed position of the Beneficiary is chief executive officer. The petitioner has not demonstrated that the Beneficiary, as listed in his job duties, will be primarily supervising a subordinate · staff of professional, managerial, or supervisory personnel. See section 101(a)(44)(A)(ii) of the Act. Furthermore, the petitioner has not established that it employs a staff that will relieve the Beneficiary from performing non-qualifying duties so that the Beneficiary may primarily engage in managerial or executive duties. Further, regardless of the Beneficiary's position title, the record is not persuasive that the Beneficiary will function at a senior level within an organizational hierarchy. Even though the enterprise is in a preliminary stage of organizational development, the petitioner is not relieved from meeting the statutory requirements. Although the Petitioner submitted a list of interns at the U.S. company for the previous year, it is not sufficient to show that the Beneficiary supervises professional, managerial, or supervisory employees, or that he is relieved from performing non-qualifying duties.

On appeal, the Petitioner states that it is given one year to organize itself, "but that one year is not a firm and definite amount of time[;] it takes some companies more than one year to accomplish this goal." The Petitioner states that "because of the nature of [the U.S. company's] functions, it is very difficult to meet any deadline with regard to doing business and hiring employees." In a separate brief, the Petitioner states that "it is very difficult to establish that the Beneficiary is performing managerial duties when the company is still in the early stages of formation and is still in the process of soliciting employees for hire."

The regulation at 8 C.F.R. § 214.2(1)(3)(v)(C) only allows the "new office" operation one year within the date of approval of the petition to support a managerial or executive position. There is no

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provision in USCIS regulations that allows for an extension of this one-year period. If a business does not have the necessary staffing after one year to sufficiently relieve the beneficiary from performing operational and "administrative tasks, the petitioner is ineligible by regulation for an extension. Here, it appears that the Petitioner concedes to USCIS that the U.S. company has not developed to a point where it has hired or will hire sufficient staff to relieve the Beneficiary from performing non-qualifying operational duties. The Petitioner appears to concede that the Beneficiary is not performing in a managerial or executive capacity and does not clearly indicate that he would perform in a managerial or executive capacity under the extended petition. In the instant matter, the Petitioner has not reached the point that it can employ the Beneficiary in a qualifying managerial or executive position.

Based on the record discussed above, the Petitioner has not established that the Beneficiary would be employed in a managerial or executive capacity under the extended petition.

V. CONCLUSION

The petition will be denied for the above stated reasons, with each considered an independent and alternative basis for the decision.

In visa petition proceedings, the burden of proving eligibility for the benefit sought remains entirely with the petitioner. Section 291 ofthe Act, 8 U.S.C. § 1361; Matter ofOtiende, 26 I&N 127, 128 (BIA 2013 ). Here, that burden has not been met.

ORDER: The appeal is dismissed.

Cite as Matter ofF-0-A-0-W-A-W-, Inc., ID# 99106 (AAO Nov. 17, 2016)

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