dismissed L-1A Case: Construction

U.S. Citizenship 
and Immigration 
Services 
MATTER OF H-C- CORP. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: JUNE 19,2018 
APPEAL OF CALIFORNIA SERVICE CENTER DECISION 
PETITION: FORM 1-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a construction company, seeks to continue the Beneficiary's temporary employment as 
its general manager under the L-lA nonimmigrant classification for intracompany transfcrees. 1 
Immigration and Nationality Act (the Act) section 101(a)(15)(L), 8 U.S.C. § 1101(a)(15)(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 be employed in a managerial or executive capacity 
under the extended petition. 
On appeal, the Petitioner asserts that the Beneficiary supervises professional subordinates and 
contends that he oversees an essential function of the organization. 
Upon de novo review, we will dismiss the appeal. 
I. LEGAL FRAMEWORK 
To establish eligibility for the L-lA nonimmigrant visa classification, 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 th~reof in a 
managerial or executive capacity. !d. 
1 The Petitioner previously filed a "new office'' petition on the Beneficiary's behalf which was approved for the period 
November 1, 2016, until October 31, 2017. A "new office" is an organization that has been doing business in the United 
States through a parent,' branch, affiliate, or subsidiary for less than one year. 8 C.F.R. * 214.2(1)(1)(ii)(F). The 
regolation at 8 C.F.R. § 214.2(1)(3)(v)(C) allows a "new office" operation one year within the date of approval of the 
petition to support an executive or managerial position. 
Matter of H-C- Corp. 
A petitioner seeking to extend an L-lA petition that involved a new office must submit a statement 
of the beneficiary's duties during the previous year and under the extended petition; a statement 
describing the staffing of the new operation and evidence of the numbers and types of positions held; 
evidence of its financial status; evidence that it has been doing business for the previous year; and 
evidence that it maintains a qualifying relationship with the beneficiary's foreign employer. 
8 C.F.R. § 214.2(1)(14)(ii). 
II. U.S. EMPLOYMENT IN A MANAGERIAL OR EXECUTIVE CAPACITY 
The sole issue to be addressed is whether the Petitioner has established that the Beneficiary would be 
employed in a managerial or executive capacity under the extended petition. 
"Managerial capacity" means an assignment within an organization in which the employee primarily 
manages the organization, or a department, subdivision, function, or component of the organization; 
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; has authority over personnel actions or functions at a senior level within the 
organizational hierarchy or with respect to the function managed; and exercises discretion over the 
day-to-day operations of the activity or function for which the employee has authority. Section 
lOl(a)( 44)(A) of the Act. 
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 onl;y 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. 
When examining the managerial or executive capacity of a given beneficiary, we will review the 
petitioner's description of the job duties. 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. See 8 C.F.R. § 214.2(1)(3)(ii). Beyond the required description of 
the job duties, we examine the company's organizational structure, the duties of a beneficiary's 
subordinate employees, the presence of other employees to relieve a 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. Accordingly, we will discuss 
evidence regarding the Beneficiary's job duties along with evidence of the nature of the Petitioner's 
business, its staffing levels, and its organizational structure. 
A. Duties 
Based on the definition of managerial and executive capacity, the Petitioner must first 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 
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Matter of H-C- Corp. 
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. USCIS, 469 
F.3d 1313, 1316 (9th Cir. 2006); Champion World, 940 F.2d 1533. 
The Petitioner stated in a business plan submitted with the petition that it is a "full service 
construction company including building new residential and commercial houses, property 
management, brokerage services, and construction management." The Petitioner indicated that as 
general manager, the Beneficiary devotes l 0% of his time to setting up and adjusting the company's 
"strategic plan," including articulating "the company's focus, mission and goals." Further, the 
Petitioner explained that the Beneficiary spends l 0% of his time establishing the company's 
accounting system and another 10% setting the company's "rules and policies." It further indicated 
that the Beneficiary spends 10% of his time arranging the company's organization and another 10% 
setting up "the company's chain.ofsupervision." 
In addition, the Petitioner explained that the Beneficiary devotes I 0% of his time to "daily business 
management," marketing development, support and accounting issues, and another 10% receiving 
periodical reports. The Petitioner also staled that the Beneficiary devotes 5% of his time to setting 
"guidelines for each department to follow" and I 0% to personnel decisions and changes. It further 
indicated that the Beneficiary is responsible 10% of the time setting "guidelines for the subordinates 
in major contract review." The Petitioner also explained that the Beneficiary devotes 5% of his time 
to "problem solving and the interpretation of specific rules and policies for the company" and 
another 5% guiding "ensuring quality performance and services to customers." 
In response to the Director's request for evidence (RFE), the Petitioner submitted a different duty 
description for the Beneficiary emphasizing that the Beneficiary uses his judgement "to make 
policies and operational decisions" and establishes "short term and long tem1 goals, policies and 
objectives." The Petitioner stated that the Beneficiary spends 40% of his time on "general corporate 
planning," comprised of establishing corporate objectives, goals, and policies. It further indicated 
that the Beneficiary devotes 15% of his time to "general administration" and another 15% of the 
time on "business development," including planning "vertical and horizontal expansion," and 
keeping "good relationships with sub-contractors, real estate brokers, [and] land/house owners." 
Lastly, the Petitioner stated that the Beneficiary spends 30% of his time on "marketing and sales of 
construction service" an "essential function" of the company. It indicated that this essential function 
is comprised of supervising "the marketing policy," including "attracting investors from China based 
on EB5 program to develop large commercial construction project[ s ]." 
The duty description submitted in response to the Director's RFE is fundamentally different from 
that previously submitted on the record. For instance, in the latter description, the Petitioner stated 
that the Beneficiary spends 30% of his time on "marketing and sales of construction service"; 
however, this duty is not mentioned in his initial duty description. Further. the Beneficiary's initial 
duty description indicated that he spends 10% of'his time on "establishing the company's accounting 
system," but this responsibility is not mentioned in his RFE duty description. Likewise, the 
Petitioner stated in support of the petition thatthe Beneficiary spends 10% of his time setting up and 
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Matter of H-C- Corp. 
modifying the company's "strategic plan," but the description provided in response to the RFE did 
not discuss strategic plans. As such, it appears that the Petitioner has submitted conflicting duty 
descriptions for the Beneficiary, leaving question as to his actual duties as of the date the petition 
was filed and under the extended petition. The Petitioner must resolve inconsistencies and 
discrepancies in the record with independent, objective evidence pointing to where the truth lies. 
Matter of Ho, 19 I&N Dec. 582, 591-92 (BIA 1988). · 
The purpose of the RFE is to elicit further information that clarifies whether eligibility for the benefit 
sought has been established. 8 C.F.R. § 103.2(b)(8). When responding to an RFE, a petitioner 
cannot offer a new position to a beneficiary, or materially change a position's job responsibilities. A 
petitioner must establish that the position offered to a beneficiary, when the petition was filed, merits 
classification as a managerial or executive position. See Matter of Michelin Tire Corp., 17 I&N Dec. 
248, 249 (Reg'! Comm'r 1978). The new duty description provided by the Petitioner in response to 
the RFE did not clarify or provide more specificity to the original duties of the position, but rather 
added new generic duties to the job description. 
In addition, the submilled duty descriptions were not sufficiently detailed and do not describe the 
Beneficiary's day-to-day managerial or executive-level duties or credibly establish that he would 
devote his time primarily to qualifying 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 maller of reiterating the regulations. Fedin Bros. Co., Ltd. v. Sava, 
724 F. Supp. 1103, 1108 (E.D.N.Y. 1989), af("d, 905 F.2d 41 (2d. Cir. 1990). 
The Beneficiary's duty descriptions include several generic duties that could apply to any manager 
or executive acting in any business or industry and they do not provide insight into the actual nature 
of his role. The Petitioner provided insufficient examples and little supporting documentation to 
demonstrate the Beneficiary's performance of qualifying duties, such as strategic plans he put in 
place, missions and goals he defined, future plans for management he determined, accounting 
systems he established, or rules and policies he set up. The Petitioner did not articulate or document 
contract negotiations the Beneficiary handled, contract negotiation procedures he developed, 
adjustments he made to day-to-day management and operation, policies and objectives he 
established, or human resource policies and rules he defined. In addition, it did not detail or provide 
supporting evidence to substantiate short and long term goals the Beneficiary established, corporate 
objectives he set, goals for progress, growth, and expansion he set forth, operation or growth policies 
he tailored, subcontractor and buyer relationships he promoted, vertical and horizontal expansion he 
planned, or marketing policies he created. This lack of detail and documentation leaves uncertainty 
as to the credibility of the Beneficiary's asserted qualifying duties. · 
Even though the Beneficiary holds a senior position within the organization, the fact that he will 
manage or direct a business does not necessarily establish eligibility for classification as an 
intracompany transferee in an managerial or executive capacity within the meaning of section 
101(a)(44)(A) and (B) of the Act. By statute\ eligibility for this classification requires that the 
duties of a position be "primarily" managerial :or executive in nature. !d. The Beneficiary may 
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Matter ofH-C- Corp. 
exercise discretion over the Petitioner's day-to-day operations and possess the requiSite level of 
authority with respect to discretionary decision-making; however, the position descriptions alone arc 
insufficient to establish that his actual duties would be primarily managerial or executive in nature. 
B. Staffing 
If staffing levels are used as a factor in determining whether an individual is acting in a managerial 
or executive capacity, we .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) of the Act. 
The Petitioner submitted an organizational chart reflecting that the Beneficiary supervised a 
secretary and a vacant vice general manager position. The chart further indicated that the 
Beneficiary oversaw financial, marketing, and engineering department managers, as well as a 
"builder/subcontractor." The engineering department manager was also shown to supervise one 
"staff' member. On appeal, the Petitioner emphasizes the Beneficiary's supervision of subordinate 
managers and professionals and his oversight over an essential function of the organization. 
The statutory definition of "managerial capacity" allows for both "personnel managers" and 
"function managers." See section 101(a)(44)(A)(i) and (ii) of the Act. Personnel managers are 
required to primarily supervise and control the work of other supervisory, professional, or 
managerial employees. Contrary to the common understanding of the word "manager," the statute 
plainly states that a "first line supervisor is not considered to be acting in a managerial capacity 
merely by virtue of the supervisor's supervisory duties unless the employees supervised are 
professional." Section 10l(a)(44)(A) of the ·Act. If a beneficiary directly supervises other 
employees, the beneficiary must also have the authority to hire and fire those employees, or 
recommend those actions, and take other personnel actions. 8 C.F.R. § 214.2(1)(1)(ii)(B)(3). 
First, it is noteworthy that only the marketing department manager is shown to have a subordinate in 
the provided organizational chart; as such, the submitted evidence does not indicate that the 
Beneficiary oversees several subordinate managers as asserted. Further, the Petitioner did not 
submit sut1icient duty descriptions for the Beneficiary's subordinates to demonstrate that they act as 
managers and professionals. For instance, the Petitioner indicated that the financial manager 
determines what services are necessary, acts in charge of human resources, gives personnel 
recommendations, reviews and approves the company's marketing plan, makes "stage plans," and 
directs budget planning. However, t]1e Petitioner provides little detail and supporting documentation 
to corroborate the activities of the financial manager, such as what services they introduced, 
personnel decisions they made, marketing plans they approved, or budgets they set. In fact, the 
financial manager's duties state that he or she is tasked with guiding and supervising subordinates, 
but the organizational chart reflects that this employee has no subordinates: 
Likewise, the Petitioner states that the marketing department manager is tasked with "creating and 
delivering marketing programs," establishing connection methods with clients, writing "promotional 
recaps," and making a "marketing development plan." However, again, the Petitioner provides little 
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Matter ofH-C- Corp. 
indication of the marketing manager's actual daily tasks, such as marketing or promotional programs 
he has created or clients he has connected with. Indeed, the Petitioner's business plan states that the 
first year marketing budget for the company was only $5,000, but asserts that the Beneficiary, the 
financial manager, and the marketing manager all focus on the company's marketing plans. These 
claimed duties are not credible in light of the Petitioner's asserted level of operation. 
In addition, the asserted duties of the engineering manager are similarly vague and inconsistent. The 
Petitioner indicates that this subordinate manager is tasked with supervising the "project process," 
processing submittals and qualification applications, cooperating with the "material trading 
department," solving technical problems, and qualifying subcontractors. However, the Petitioner 
provided little detail regarding the projects this employee oversaw, submittals and qualifications he 
handled, or technical problems he solved. In fact, the engineering manager's duties mention his 
subordinates and a "material trading department," neither of which are reflected in the company's 
organizational chart. 
On appeal, the Petitioner emphasizes the Beneficiary's supervision of a "builder/subcontractor," and 
notes that this claimed employee holds a bachelor's of science degree. However, the submitted 
documentation indicates that this asserted subordinate is the owner of his own construction 
company. The Petitioner submits invoices and other documentation indicating that this 
subcontractor holds a construction license in the name of his own company and that he has 
completed small scale remodeling work for the company. The Petitioner also states that this asserted 
employee oversees two construction workers, but it does not substantiate these employees with 
details or supporting documentation to demonstrate that they should be considered part of its 
organizational chart. Otherwise, the provided organizational chart does not demonstrate that the 
Beneficiary supervises managerial subordinates as asserted, but that he more likely than not oversees 
operational level employees and subcontractors who perform the services of the business. 
The Petitioner has also not established that the Beneficiary oversees professional subordinates. In 
determining whether a beneficiary manages professional employees, we must evaluate whether the 
subordinate positions require a baccalaureate degree as a minimum for entry into the field of 
endeavor. Cf 8 C.F.R. § 204.5(k)(2) (defining "profession" to mean "any occupation for which a 
U.S. baccalaureate degree or its foreign equivalent is the minimum requirement for entry into the 
occupation"). Section I 0 I (a)(32) of the. Act, st~tes that "[t]he term profession shall include but not 
be limited to architects, engineers, lawyers, physicians, surgeons, and teachers in elementary or 
secondary schools, colleges, academies, or seminaries." 
As noted, the Petitioner emphasizes on appeal that the builder/subcontractor reporting to the 
Beneficiary has a bachelor's degree in science. However, the submitted evidence leaves significant 
question as to whether this claimed employee can be considered the Beneficiary's subordinate. As 
previously stated, the Petitioner submitted documentation indicating that the builder/subcontractor is 
the owner of his own construction company, and that he has been paid semi-regularly for the 
completion of remodeling work. This evidence does not demonstrate that he could be considered the 
Beneficiary's professional subordinate. Further, the Petitioner does not submit supporting 
documentation to substantiate that the builder/subcontractor holds his asserted degree, nor does not 
6 
Matter of H-C- Corp. 
articulate why this position requires a specific bachelor's degree. Indeed, as we have noted, the 
evidence appears to indicate that this asserted employee performs remodeling work and that he holds 
a construction license, evidence not suggestive of a professional level position requiring a specific 
bachelor's degree in science. 
Otherwise, the Petitioner also states that the financial manager has a bachelor's degree in business 
and that the engineering manager holds a Master of Science degree. However, it does not document 
that these subordinates hold bachelor's degrees or describe in detail why these positions require 
specific bachelor's degrees. Therefore, in sum, the Petitioner has not sufficiently demonstrated that 
the Beneficiary is primarily devoted to overseeing professional subordinates. 
The Petitioner also contends that the Beneficiary qualifies as a function manager overseeing "the 
engineering department and subcontractors to perform our construction service." The Petitioner 
refers to the "essential function" of marketing and sales and states that this takes up to 30% of the 
Beneficiary's time. 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 organizatio~. See section 101(a)(44)(A)(ii) of the Act. If a 
petitioner claims that a beneficiary will manage an essential function, it must clearly describe the 
duties to be performed in managing the essential function. In addition, the petitioner must 
demonstrate that"(!) the function is a clearly defined activity; (2) the function is 'essential,' i.e., 
core to the organization; (3) the beneficiary will primarily manage, as opposed to perform, the 
function; (4) the beneficiary will act at a senior level within the organizational hierarchy or with 
respect to the function managed; and (5) the beneficiary will exercise discretion over the function's 
day-to-day operations." Matter ofG- Inc., Adopted Decision 2017-05 (AAO Nov. 8, 2017). 
In this matter, the Petitioner has not sufficiently articulated the Beneficiary's essential function or 
provided evidence that he primarily manages an essential function. First, the Petitioner refers to the 
function managed by the Beneficiary as "inherent and indispensable," but it does not state why this 
is the case. Further, as we have discussed, the Petitioner submits vague duties for the Beneficiary 
that do not sufficiently articulate his day-to-day activities, or in turn, the function he manages. The 
asserted function is also not clearly defined, as it is only generically referred to as "marketing and 
sales of construction" and oversight of his subordinates. The Petitioner mentions large commercial 
construction projects pursued by Chinese investors and "marketing and logistics strategies" when 
describing the Beneficiary's claimed essential function, but it does not describe or document any 
large construction projects or marketing and logistics strategies. In fact, as we have noted, the 
Petitioner's business plans indicate that the company was to spend only $5,000 on marketing during 
its first year of operation, leaving question as to whether the Beneficiary's oversight of sales and 
marketing would qualify as an essential function. It is also noteworthy that the Petitioner appears to 
indicate that the Beneficiary would only devote 30% of his time to the asserted essential function of 
marketing and sales of its construction services. ' 
Lastly, the Petitioner also refers to the Beneficiary's position on the record as that of an executive. 
We note that a petitioner claiming that a beneficiary will perform as a "hybrid" manager/executive 
will not meet its burden of proof unless it has demonstrated that the beneficiary will primarily 
7 
Matter of H-C- Corp. 
engage in either managerial or executive capacity duties. See section 101(a)(44)(A)-(B) of the 
Act. While in some instances there may be duties that could qualify as both managerial and 
executive in nature, it is the petitioner's burden to establish that the beneficiary's duties meet each 
criteria set forth in the statutory definition for either managerial or executive capacity. A petition 
may not be approved if the evidence of record does not establish that the beneficiary will be 
primarily employed in either a managerial or executive capacity. 
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." !d. 
Here, the Petitioner has not demonstrated that the Beneficiary would act primarily in an executive 
capacity. As noted, the Petitioner has submitted generic and conflicting duty descriptions for the 
Beneficiary which do not sufficiently detail his daily executive-level tasks. For instance, the 
Petitioner states that the Beneficiary would be focused on several broad goals and policies of the 
organization, such as corporate objectives and policies, "goals for the progress growth and 
expansion," and "vertical and horizontal expansion," to name a few, but it does not sufficiently 
articulate or document these activities. In addition, the Petitioner does not demonstrate that the 
Beneficiary oversaw subordinate managers when this petition was filed. In fact, the evidence 
indicates that the Beneficiary's subordinates are more likely operational level employees and 
contractors performing the services of the business, such as the builder/subcontractor, who appears 
to be a construction contractor providing remodeling services for the company. Therefore, the 
Petitioner did not establish that the Beneficiary has a subordinate level of managerial employees to 
allow him to primarily focus on the broad goals and policies of the organization rather than the day­
to-day operations of the enterprise. 
Therefore, for the reasons discussed above, the Petitioner has not established that the Beneficiary 
would act in a managerial or executive capacity under the extended petition. 
Ill. CONCLUSION 
The appeal must be dismissed because the Petitioner has not established that the Beneficiary would 
be employed in the United States in a managerial or executive capacity. 
,8 
Matter of H-C- Corp. 
ORDER: The appeal is dismissed. 
Cite as Matter of H-C- Corp., ID# 1200225 (AAO June 19, 2018) 
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