dismissed L-1A Case: Art, Film, And Real Estate

MATTER OF W-N-A-G- INC. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: AUG. 7, 2018 
APPEAL OF CALIFORNIA SERVICE CENTER DECISION 
PETITION: FORM 1-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a company engaged in art sales, film brokerage, and real estate development, seeks to 
temporarily employ the Beneficiary as president of its new office 1 under the L-lA nonimmigrant 
classification for intracompany transferees. Immigration and Nationality Act (the Act) 
section 101(a)(l5)(L), 8 U.S.C. § 1101(a)(l5)(L). The L-lA 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 a managerial or executive capacity. 
The Director of the California Service Center denied the petition, concluding that the record did not 
establish, as required, that the Beneficiary would act in a managerial or executive capacity within 
one year of an approval of the petition. 
On appeal, the Petitioner asserts that it has submitted detailed duties for the Beneficiary 
demonstrating that he would oversee a multi-tiered organizational structure within one year. The 
Petitioner contends that the Director overemphasized the proposed number of the company's 
employees and whether the Beneficiary would oversee managerial subordinates. 
Upon de nova review, we will dismiss the appeal. 
I. LEGAL FRAMEWORK 
To establish eligibility for the L-lA nonimmigrant visa classification in a petition involving a new 
office, a qualifying organization must have employed the beneficiary in a managerial or executive 
capacity for one continuous year within three years preceding the beneficiary's application for 
admission into the United States. 8 C.F.R. § 214.2(1)(3)(v)(B). 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 or executive capacity. Id. 
1 The term "new office" refers to an organization which has been doing business in the United States for less than one 
year. 8 C.F.R. § 214.2(l)(l)(ii)(F). The regulation at 8 C.F.R. § 214.2(1)(3)(v)(C) allows a "new office" operation no 
more than one year within the date of approval of the petition to support an executive or managerial position. 
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Matter ofW-N-A-G- Inc. 
The petitioner must submit evidence to demonstrate that the new office will be able to support a 
managerial or executive position within one year. This evidence must establish that the petitioner 
secured sufficient physical premises to house its operation and disclose the proposed nature and 
scope of the entity, its organizational structure, its financial goals, and the size of the U.S. 
investment. See generally, 8 C.F.R. § 214.2(1)(3)(v). 
II. U.S. EMPLOYMENT IN AN EXECUTIVE CAPACITY 
We will first analyze whether the Petitioner established that it would employ the Beneficiary in a 
managerial or executive capacity within one year of the petition's approval. The Petitioner does not 
claim that the Beneficiary would be employed in a managerial capacity. Therefore, we restrict our 
analysis to whether the Beneficiary would be employed in an executive capacity. 
The statute defines an "executive capacity" as an assignment within an organization in which the 
employee primarily directs the management of the organization or a major component or function of 
the organization; establishes the goals and policies of the organization, component, or function; 
exercises wide latitude in discretionary decision-making; and receives only general supervision or 
direction from higher-level executives, the board of directors, or stockholders of the organization. 
Section 101(a)(44)(B) of the Act. 
In order to determine whether the Petitioner established that its new office will support an executive 
position within one year, we will review the Beneficiary's proposed job duties, along with the 
Petitioner's business and hiring plans and evidence that the business will grow sufficiently to support 
the Beneficiary in the intended executive capacity. The totality of the evidence must be considered 
in analyzing whether the proposed executive position is plausible, considering a petitioner's 
anticipated staffing levels and stage of development within a one-year period. See 8 C.F .R. 
§ 214.2(1)(3)(v)(C). 
A. Duties 
The Petitioner stated that it was created by its foreign parent to "become a market leader in the sale 
of Chinese contemporary and modem art in the area." The Petitioner submitted 
evidence indicating that it had established an art gallery in the Seattle area with "rotating exhibitions 
on contemporary Chinese artists." The Petitioner also detailed plans to expand into the movie 
business, stating that it intended to provide a training program for Chinese movie directors, to 
cooperate with the U.S. film industry on "cross-culture films," and to export Chinese films to the 
United States. Further, the Petitioner projected it would expand into the real estate business, namely 
"the development of single family, multi-family, and commercial real estate properties." 
In the Beneficiary's duty description, the Petitioner stated that the Beneficiary would spend 60% of 
his time formulating and implementing the company's "domestic and international short-term, mid­
term, and long-term business development, [as well as] financial, and operating goals, strategies , 
policies, and initiatives." The Petitioner indicated that this 60% would also include overseeing the 
"broad business and operational strategies" of the company's modem art gallery and film industry 
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business, overseeing and directing market research related to its proposed real estate acquisition and 
development, and "establishing business relationships with well-known Chinese artists and 
authorizing the selection, marketing, and disposition of their artwork." The Petitioner explained that 
the Beneficiary would devote another 20% of his time to "overseeing effective communication 
between its foreign parent company and the Petitioner," consisting of responsibility for the "growth 
and overall direction of [the Petitioner]" and frequent communication with the senior executives of 
the foreign parent. Lastly, the Petitioner stated that the Beneficiary would devote 20% of his time to 
overseeing "the performance of the subordinate employees of [the Petitioner] in carrying out [its] 
business endeavors." 
The Beneficiary's duties are overly vague as they do not effectively convey the Beneficiary's day-to­
day executive duties. The Beneficiary's job description includes several general duties that could 
apply to any executive acting in any business or industry; such duties do not provide insight into the 
actual nature of his role. The Petitioner provided few specifics related to how the Beneficiary's day­
to-day duties fit specifically within the company's first year business plans. For instance, the 
Petitioner provides few examples of the actions the Beneficiary would take during its first year of 
operation to assure that the business develops as necessary to support him in an executive capacity 
within one year. For instance, the Petitioner only vaguely references "broad business and 
operational strategies," marketing research, "real estate development," "growth and overall 
direction," and "long term and short-term operating strategies, policies, and initiatives," but does not 
effectively convey how the Beneficiary's focus on these items would translate into day-to-day 
executive-level tasks. 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), ajf'd, 905 F.2d 41 (2d. Cir. 1990). 
In fact, to the extent that the Petitioner provides detail regarding the Beneficiary's day-to-day duties 
these specifics are indicative of his involvement with day-to-day non-qualifying matters related to 
the operation of the company's art gallery, such as building relationships with artists, selecting their 
work, marketing it, and approving its acquisition and sale. Beyond this, the Petitioner provides few 
examples of the day-to-day executive-level duties the Beneficiary would perform within one year. 
The fact that the Beneficiary would manage the business does not necessarily establish eligibility for 
classification as an intracompany transferee in an executive capacity within the meaning of section 
101(a)(44) of the Act. By statute, eligibility for this classification requires that the duties of a 
position be "primarily" executive in nature. Section 101(A)(44)(B) of the Act. Even though the 
Beneficiary would exercise discretion over the Petitioner's day-to-day operations and possess the 
requisite level of authority with respect to discretionary decision-making, these elements are not 
sufficient to establish that the actual duties the Beneficiary would perform within one year of the 
petition's approval would be primarily executive in nature. The actual duties themselves reveal the 
true nature of the employment. Fedin Bros. Co., Ltd., 724 F. Supp. 1103, 1108. Here, the Petitioner 
provided a vague job description that does not adequately convey the Beneficiary's actual proposed 
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Matter of W-N-A-G- Inc. 
day-to-day tasks or establish that he would devote his time primarily to executive duties within one 
year. 
B. Business Plan and Projected Staffing 
In the case of a new office petition, we review the petitioner's business and hiring plans and 
evidence that the business will grow sufficiently to support a beneficiary in the intended executive 
capacity. A petitioner has the burden to establish that it would realistically develop to the point 
where it would require the beneficiary to perform duties that are primarily executive in nature within 
one year of the petition's approval. Accordingly, we consider the totality of the evidence in 
analyzing whether the proposed executive position is plausible based on a petitioner's anticipated 
staffing levels and stage of development within a one-year period. See 8 C.F.R. § 214.2(1)(3)(v)(C). 
The statutory definition of the term "executive capacity" focuses on a person's elevated position 
within a complex organizational hierarchy, including major components or functions of the 
organization, and that person's authority to direct the organization. Section 101(a)(44)(B) of the 
Act. Under the statute, a beneficiary must have the ability to "direct the management" and "establish 
the goals and policies" of that organization. Inherent to the definition, the organization must have a 
subordinate level of managerial employees for a beneficiary to direct and they must primarily focus 
on the broad goals and policies of the organization rather than the day-to-day operations of the 
enterprise. An individual will not be deemed an executive under the statute simply because they 
have an executive title or because they "direct" the enterprise as the owner or sole managerial 
employee. A beneficiary must also exercise "wide latitude in discretionary decision making" and 
receive only "general supervision or direction from higher level executives, the board of directors, or 
stockholders of the organization." Id. 
The Petitioner stated that it had already hired a vice president subordinate to the Beneficiary who 
would oversee an office manager, a gallery manager, a business manager of the real estate division, 
and a director of the film division. The Petitioner also indicated that the gallery manager would 
oversee two sales associates. However, the Petitioner provides no hiring timeline for when it will 
hire these subordinates during the first year. 
As noted, in the case of a new office petition, we review the petitioner's business plans to determine 
whether it will likely grow sufficiently to support the Beneficiary in the intended executive capacity 
within one year. The Petitioner provided inconsistent and vague business plans that do not 
sufficiently demonstrate that the company is likely to support the Beneficiary in an executive 
capacity within one year. For instance, the Petitioner submitted financial projections reflecting that 
it would earn $500,000 in revenue during the first year and pay $435,000 in salaries to its eight 
projected employees during the first year. The Petitioner stated that its art gallery would sell the 
works of a renowned Chinese modem artist for $200,000 per work. However, it does not support 
this assertion with sufficient supporting evidence, such as evidence of the sale of this artist's work at 
these amounts in the past. The Petitioner also states that it plans on investing $2 million during the 
first year on the purchase of artwork, but it does not document this projected investment on the part 
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Matter of W-N-A-G- Inc. 
of the foreign parent. In addition, the Petitioner states in its first year financial projections that it 
would generate $100,000 in "revenue" from art sales during the first year, while elsewhere indicates 
that this would be $100,000 in "profit." It is noteworthy that the projected $100,000 in revenue from 
art sales does not correlate with the Petitioner's projection that it would sell its art for $200,000 per 
work. The Petitioner must resolve discrepancies in the record with independent, objective evidence 
pointing to where the truth lies. Matter of Ho, 19 l&N Dec. 582, 591-92 (BIA 1988). 
The Petitioner further indicates that it intends to launch a Chinese film director ' s academy during the 
first year and projects that it will generate $400,000 in profit through charging an expected 20 
aspiring directors $100 ,000 per year for training in the United States. Again, we note that the 
Petitioner questionably refers to the $400,000 as both profit and projected revenue on the record. 
Regardless, the Petitioner's statements and evidence do not sufficiently establish that it is likely to 
operate a film director's academy within the first year and generate this income. As noted, the 
Petitioner states that it plans on hiring a "director of film division" during the first year and indicated 
that during the first year this employee would be tasked with "developing relationships with Chinese 
and American film academies, designing training curriculum, arranging schedule[s], and recruiting 
film students from China." The Petitioner also stated that department's operations during the first 
year would be "mainly devoted to developing relationships with the Chinese and American film 
industries" and "relevant Chinese government agencies." In addition, the Petitioner stated that once 
these preliminary steps were completed, it would add three additional employees, including a 
training program coordinator , a film export and import manager, and a filmmaking project manager. 
However, the Petitioner does not provide details and a timeline as to how it plans on launching a 
film director's academy during the first year. None of these employees in the proposed film 
division, beyond the director of film division , appear in the Petitioner ' s projected organizational 
chart for the first year. Therefore, it is not clear how the director of film division would be capable of 
training 20 aspiring film directors within the first year and generate $400,000 in income/profit , as 
specified in the Petitioner's financial projections, particularly since his duties do not include 
responsibility for actually training students. 
Otherwise , the Petitioner has not demonstrated that it would generate income during the first year 
and do business as necessary to support the Beneficiary in an executive capacity. For instance, the 
Petitioner makes vague statements as to its expansion into the real estate industry, including "the 
development of single family, multi-family, and commercial real estate properties " in the greater 
area. It also states that it has "already looked at a few options of land acquisitions within the 
$6 million USD budget" and estimates that "development cost will be around $15 million USD, and 
the final profit will be around $2 million USD." However, the Petitioner provides no concrete plans 
as to how it will launch a real estate business in the United States, develop properties, or generate 
income and profit from these activities as claimed. In fact, the Petitioner's first year financial 
projections include no indication that it would generate any revenue from real estate activities during 
the first year . Further , the Petitioner provides little supporting evidence that the foreign parent has 
provided , or committed to, investing approximately $21 million on real estate purchase and 
development during the first year. In sum, the Petitioner ' s assertion that it would expand into the 
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Matter of W-N-A-G- Inc. 
real estate market during the first year is not credible and it is not clear how these vague plans would 
be relevant to supporting the Petitioner operations, and in tum the Beneficiary's proposed executive 
role, during the first year. 
The Petitioner also explains plans to expand into producing Chinese American films and importing 
films from China to the United States. However, again, there is little indication that these proposed 
plans would generate income to grow the company and support the Beneficiary in his executive 
capacity within one year. We acknowledge that the Petitioner submitted evidence indicating that it 
signed a sponsorship agreement with the to provide a donation of 
$100,000 and invoices supporting that it paid this donation. Further, we recognize that this donation 
could likely give the Petitioner and Beneficiary opportunities to network in the U.S. film industry. 
However, the Petitioner provides few details as to how its donation to, and participation in, this film 
festival would result in concrete business operations for the company during the first year. Again, 
the Petitioner's first year financial projections include no revenue from producing films or 
distributing Chinese films in the United States. 
The Petitioner has also not submitted sufficient evidence to demonstrate foreign entity investment in 
the new venture. The Petitioner submitted bank records indicating that the Beneficiary has made 
over 40 contributions to the company's bank account totaling nearly $550,000 from March 2013 
through August 201 7. However, it is not clear how these contributions on the part of the Beneficiary 
relate to the foreign entity, a real estate company in China. The Petitioner states that the Beneficiary 
contributed these amounts "on behalf of the foreign company," but there is insufficient detail and 
supporting evidence to support this assertion. Beyond this, the Petitioner makes statements 
regarding future investment that are not substantiated, such as a $2 million investment to purchase 
artwork, $21 million for real estate purchase and development, and other potential investment in the 
film industry. However, the Petitioner provides little evidence that the foreign entity has allocated 
these amounts to the company's development during the first year. 
Therefore, the Petitioner has not submitted credible evidence that it would operate within the first 
year as necessary to support the Beneficiary in an executive capacity overseeing a "multi-tiered 
organizational structure." We acknowledge that the Petitioner submits evidence that the Beneficiary 
more likely than not committed funds to launch an art gallery in the United States. However, the 
Petitioner does not credibly establish that this art gallery would be sufficient to support the 
Beneficiary in an executive capacity during the first year. The Petitioner projects that it would earn 
$500,000 during the first year and hire seven employees; however as we have discussed, it has not 
adequately supported how it would earn this revenue and operate as necessary to support its 
proposed organizational structure within one year. The Petitioner also does not indicate when it will 
hire the Beneficiary's proposed subordinates during the first year. Furthermore, the Petitioner 
provides a vague duty description for the Beneficiary that does not adequately set forth his first year 
executive-level tasks. In fact, to the extent that the Petitioner provides specific duties for the 
Beneficiary, these indicate that he would be involved in the day-to-day operation of its art gallery 
and it has not provided sufficient detail and evidence to demonstrate that he would be primarily 
relieved of these tasks by the end of the first year. 
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Matter o/W-N-A-G- Inc. 
For the above stated reasons, the Petitioner did not establish that the Beneficiary would act in an 
executive capacity within the first year. 
III. CONCLUSION 
The appeal will be dismissed because the record does not include sufficient evidence to establish that 
the Beneficiary would be employed in an executive capacity within one year of an approval of the 
petition. 
ORDER: The appeal is dismissed. 
Cite as Matter of W-N-A-G- Inc., ID# 1434712 (AAO Aug. 7, 2018)