dismissed L-1A Case: Construction

U.S. Citizenship 
and Immigration 
Services 
MATTER OF E-H-, LLC 
APPEAL OF VERMONT SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: SEPT.19,2017 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a remodeling and construction company, seeks to extend the Beneficiary's temporary 
employment as its chief executive officer (CEO) -under the L-1 A nonimmigrant classification for 
intracompany transferees. 1 See 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 Vermont 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 submits additional evidence and asserts that the record establishes that the 
Beneficiary will be employed in an executive or managerial capacity. 
Upon de novo review, we will dismiss the appeal. 
I. LEGAL FRAMEWORK 
To establish eligibility for the L-1 A nonimmigrant visa classification, a qualifying organization must 
have employed the beneficiary in a managerial or executive capacity, or in position involving 
specialized knowledge, for one continuous year within three years preceding the beneficiary's 
application for admission into the United States. 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. Section 101(a)(15)(L) of the 
Act. 
1 
The Petitioner previously filed a "new office" petition on the Beneficiary's behalf which was approved for the period 
October 19, 2015, to October 18, 2016. 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 
regulation 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 E-H-, LLC 
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 beneticiary's foreign employer. 
8 C.F.R. § 214.2(1)(14)(ii). 
II. U.S. EMPLOYMENT IN A MANAGERIAL OR EXECUTIVE CAPACITY 
The Director found that the Petitioner did not establish that it would employ the Beneficiary in a 
managerial or executive capacity under the extended petition. Specifically, the Director concluded 
that the Beneficiary's job description was too general and did not convey his actual day-to-day tasks. 
The Director also found that the Petitioner's staffing levels did not reflect that the Beneficiary would 
oversee subordinate managers, supervisors, or professionals. Further, the Director concluded that 
the Beneficiary would more likely than not be involved in all the operational non-managerial aspects 
of the business based on its current staffing levels. 
On appeal, the Petitioner submits additional evidence related to the Beneficiary's investigation of a 
new business venture and asserts that the totality of the evidence is sufficient to establish that the 
Beneficiary's duties will be primarily managerial and executive in nature. 
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) ofthe Act. 
The law defines the term "managerial capacity" as an assignment in which an 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; has the authority to hire and fire or 
recommend those as well as other 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 
101(a)(44)(A) of the Act. Further, "[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." ld. 
If staffing levels are used as a factor in detennining whether an individual is acting in a managerial 
or executive capacity, U.S.' Citizenship and Immigration Services (USCIS) takes 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. 
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Matter of E-H-, LLC 
When examining the managerial or executive capacity of the Beneficiary, we will look first to 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, USCIS examines the claimed managerial or executive capacity of a beneficiary, 
including 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 business and its staffing levels. 
A. Duties 
Based on the definitions 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 
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 that wheri it opened its new office in the United States, it planned on launching 
a home physical therapy service business with a partner, but that it "experienced difficulty 
with its 
business partner." The Petitioner indicated that it lieu of this planned business it launched a 
remodeling and construction business known as ' _ _ _ and an import and 
export business known as ' ' in August 2016? The Petitioner explained that the 
remodeling and construction business would focus on a wide variety of services including handy 
rrian services, pool renovation and maintenance, plumbing, and other general construction services. 
Further, the Petitioner indicated that its export business would focus on importing various goods to 
South America, including aircraft, hospital equipment, security technology, antique and race 
vehicles, and fitness equipment. 
The Petitioner stated that the Beneficiary would spend his time performing some of the following 
general responsibilities: overseeing these businesses, directing prices and "sales promotions," 
coordinating "financial and budget activities," establishing "company policies, goals, objectives, and 
procedures," negotiating "contracts with suppliers," and "staying apprised of the latest developments 
in the industries." In response to the Director's request for evidence (RFE), the Petitioner attempted 
to provide more detail with respect to the Beneficiary's duties indicating in a support letter the 
Beneficiary's decision to shift the company's focus and explaining business opportunities in its 
region. The Petitioner noted that the Beneficiary had not yet launched the proposed import business, 
but stated this would take place in March 2017. However, the Petitioner provided invoices related to 
various handyman, property maintenance, and equipment maintenance jobs, asserting 
that it earned 
2 
The Petitioner filed this Form 1-129, Petition for a Nonimmigrant Worker, in October 2016. 
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Matter of E-H-, LLC 
approximately $74,000 from these transactions in 2016.3 The Petitioner stated that the Beneficiary 
will "assume less direct day-day role in the company and focus on the plan to improve the division's 
profitability and oversee the business development activities of the company," such as launching 
"www. 
On appeal, the Petitioner submits a letter from the president of a pipe 
manufacturer, indicating the company's need for an individual to "oversee the management and 
oversight ofhiring and training pl~mt employees, set the production schedule and to have the depth 
to understand our process." He explained that the Beneficiary would "be a perfect fit for [the 
company's] IT3 System Plant Manager." In addition, the Beneficiary provides a letter on appeal 
stating that he would be tasked with "management of scheduled work and employees, developing 
relationships with customers, initiating contracts with prospective customers, [and] oversight and 
approval of work performed by employees," while also playing "a more direct advisory role m 
equipment repair of work performed by employees" of 
As a preliminary matter, the Petitioner's shifting description of the Beneficiary's managerial or 
executive role leaves serious question as to the actual duties he has performed during the first year 
and the duties he would perform under the extended petition. The Petitioner asserts on appeal, and 
provides a corroborating letter, reflecting that the Beneficiary is being considered for a managerial 
position with another company. The Petitioner also submits a contract dated in May 2016 indicating 
that the Petitioner will act as an independent contractor for and a few 
invoices reflecting that it performed equipment maintenance services for this 
client. However, the 
Petitioner provides insufficient detail regarding the Beneficiary's proposed work for 
The language of the client letter suggests that this is a newly proposed position 
with the company; and therefore a material change to the petition and his potential employer, rather 
than a continuation of the Petitioner's previous services for the client. However, if the Beneficiary's 
newly proposed role with the Petitioner is indeed an extension of its previous arrangement with 
it appears the he would be substantially performing non-qualifying 
operational duties by directly providing services to the Petitioner's client. 
Further, given the Petitioner's assertions on appeal relative to the Beneficiary's proposed new 
capacity with it is not clear how much time he would devote to this role 
as opposed to his asserted role as CEO of the Petitioner. This change is presented in light of the 
Petitioner's previous shifting focus as to its business activities, including handyman services, 
construction services, import and export activities, and now the Beneficiary's proposed role as an 
apparent representative for a piping technology company. In fact, the letters presented on appeal 
from the Beneficiary and the president of appear to conflict. In the 
former case, the Beneficiary indicates that he will act in a more direct advisory role in equipment 
3 
The Petitioner provided copies of its independent contractor agreements with and 
indicating the Petitioner would provide maintenance and repair services for these companies. 
Based on the documentation submitted, these two entities and the Petitioner all share the same business location at 
in Texas. The Petitioner states that it leases an "office and shop" at this address, but has not 
provided a copy of the lease agreement or explained how this location is shared among three companies. 
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Matter of E-H-, LLC 
repair, while the letter from indicates he will undertake a management 
and oversight role involving hiring and training its plant employees and setting production 
schedules. 
Based on the Petitioner's conflicting explanations of the Beneficiary's duties, it is not possible to 
discern whether he is likely to spend his time primarily on qualifying managerial or executive duties. 
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). On appeal, a 
petitioner cannot offer a new position to a beneficiary, or materially change a position's title, its 
level of authority within the organizational hierarchy, or the associated 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). 
Further, to the extent that the Petitioner provided duties for the Beneficiary's claimed capacity as 
CEO, it has provided insufficient details and supporting evidence to establish that he would 
primarily perform managerial or executive tasks. For instance, the Petitioner does not explain 
pricing or sales promotions he set, financial or budget activities he directed, policies, goals, 
objectives, and procedures he established, or contracts he negotiated with suppliers. The Petitioner 
references the Beneficiary's decision to move the business away from its initial business model to 
various other ventures, but this does not represent an ongoing executive or managerial duty, but 
merely a one-time decision. In addition, as we have discussed, the Petitioner submits evidence 
specific to its provision of equipment maintenance services for and this 
client references the Beneficiary providing these services along with his background in engineering. 
The Petitioner does not indicate an employee responsible for these equipment maintenance services 
other than the Beneficiary, and given its statements and those of on 
appeal, it appears more likely than not that he will be providing these services to the client. The 
Petitioner may intend to grow to a point where the Beneficiary will be relieved of this responsibility, 
but the evidence does not support this conclusion at the time of filing. 
In short, to the extent the Petitioner references certain qualifying managerial or executive duties, 
these are not sufficiently supported by details and supporting evidence. The Petitioner has not 
clearly articulated what the Beneficiary does on a daily basis. 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). 
The Petitioner has not established that the more detailed position description provided in response to 
the RFE accurately or completely reflected the Beneficiary's actual duties as of the date of filing. 
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 a managerial or 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 or managerial in nature. Sections 101(A)(44)(A) and (B) of the 
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Matter of E-H-, LLC 
Act. The Beneficiary may 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 are insufficient to establish that his actual duties would be primarily 
managerial or executive in nature. 
R Staffing 
The Petitioner asserted that it employed two employees subordinate to the Beneficiary at the time of 
filing, an administrative assistant and a construction worker. In response to the RFE, the Petitioner 
further stated that it had hired a construction manager in November 2016 and also indicated that it 
planned to hire a contract buyer and a purchasing coordinator to work in its planned export business. 
The Petitioner has referred to the Beneficiary's position as both executive and managerial, 
emphasizing in response to the RFE that he would oversee the subordinate construction manager. 
The statutory definition of "managerial capacity" allows for both "personnel managers" and 
"function managers." See section 10l(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. 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." 4 Section 10l(a)(44)(A) of the Act. If a petitioner claims 
that a beneficiary directly supervises other employees, those subordinate employees must be 
supervisory, professional, or managerial, and the beneficiary must have the authority to hire and fire 
those employees, or recommend those actions, and take other personnel actions. Sections 
10l(a)(44)(A)(ii)-(iii) ofthe Act. 
We acknowledge that the Petitioner submitted a resume for its asserted administrative assistant 
reflecting that she has a bachelor's degree in nutrition. However, the Petitioner did not state that 
there was a minimum educational requirement for this subordinate position, and this educational 
background appears completely unrelated to the duties of the position. Therefore, the record does 
not establish that the Beneficiary would supervise subordinate professionals. 
In addition, although we acknowledge that the Petitioner asserts it hired a subordinate manager in 
late November 2016, this is not relevant with respect to determining whether it had sufficient staff to 
qualify the Beneficiary as a personnel manager when it tiled the petition in October 2016. 
Otherwise, the Petitioner does not assert or document that the Beneficiary oversaw subordinate 
managers or supervisors when the petition was filed. Again, a petitioner must establish that the 
4 
To determine whether the Beneficiary manages professional employees, we must evaluate whether the subordinate 
positions require a baccalaureate degree as a minimum for entry into the field of endeavor. Cf 8 C.F.R. § 204.5(k)(2) 
(defining "profession" to mean "any occupation for which a United States baccalaureate degree or its foreign equivalent 
· is the minimum requirement for entry into the occupation"). Section I 0 I (a)(32) of the Act states 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." 
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Matter of E-H-. LLC 
\ 
position offered to a beneficiary, when the petition was filed, merits classification as a managerial or 
executive position. See Michelin Tire Corp., 17 I&N Dec. at 248,249. 
In addition, to the extent that the Petitioner provided duties for the Beneficiary's subordinates, 
particularly for the administrative assistant, these duties are not supported by the submitted evidence. 
The Petitioner initially indicated that it employs this worker is a "payroll/accounting" employee and 
later assigned the "administrative assistant" job title. For instance, the Petitioner states 
that the 
administrative assistant would be responsible for payroll processing, invoicing, purchase orders, 
winding down the company's previous venture, recommending changes to policies and procedures, 
overseeing maintenance and repair of equipment and machinery, assisting the construction manager, 
and ongoing assessment of subcontractors. However, the Petitioner did not have a construction 
manager or subcontractors when the petition was filed, nor did it have anyone on staff: other than the 
Beneficiary, qualified to maintain and repair equipment and machinery. The Petitioner has not 
provided a credible description of this employee's duties. 
Further, the Petitioner submitted copies of checks it received from and 
which were actually signed by the Petitioner's claimed administrative 
assistant as a representative of those two companies. These checks post-date her claimed date of 
hire by the Petitioner and it did not provide an explanation as to why its claimed full-time employee 
is signing checks for unrelated companies. The Petitioner has not adequately substantiated that the 
Beneficiary would be relieved from performing non-qualifying operational tasks as of the date of the 
petition by the administrative assistant and a handyman/construction employee. 
In fact, the evidence and the Petitioner's statements strongly suggest that the Beneficiary was still 
significantly involved in operational level tasks as of the date of filing the petition. First, we note 
that the Petitioner states and provides supporting evidence indicating that it only had two operational 
level employees as of the date of the petition. Further, the Petitioner makes various statements 
indicating that the Beneficiary had not yet been relieved from non-managerial tasks, including noting 
that its export business had not yet been launched, that he would assume less of a direct role in the 
future, and that he planned on putting managers in place in both divisions during the coming year. 
In sum, the Petitioner has not shown that the Beneficiary's subordinate employees are supervisory, 
professional, or managerial, as required by section 101(a)(44)(A)(ii) of the Act when seeking 
classification as an L-lA manager based on the supervision of personnel. The Petitioner has not 
claimed, in the alternative, that the Beneficiary would primarily manage an essential function of the 
organization. 
Further, although the Petitioner cites to the definition of "executive capacity" on appeal, it has not 
established that the Beneficiary would be employed in such 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 
Matter of E-H-, LLC 
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, while the Beneficiary appears to have the appropriate level of authority, the Petitioner has not 
established that, as of the date of filing, he was primarily concerned with the broad policies and 
goals of the organization, that the day-to-day management rested with a subordinate tier of 
management, or that he would be relieved from substantial involvement in the day-to-day operations 
of the business. We acknowledge that a company's size alone may not be the determining factor in 
denying an L-1 A visa petition without taking into account the reasonable needs of the organization. 
See section 101(a)(44)(C) of the Act. However, it is appropriate for USCIS to consider the size of 
the petitioning company in conjunction with other relevant factors, such as the absence of employees 
who would perform the non-managerial or non-executive operations of the company or a "shell 
company" that does not conduct business in a regular and continuous manner. Family, 469 F.3d 
1313; Systronics Corp. v. INS, 153 F. Supp. 2d 7, 15 (D.D.C. 2001) . 
. 
As discussed, the Petitioner did not consistently or sufficiently describe the Beneficiary's duties and 
we cannot determine that his role would involve primarily executive-level tasks. The Petitioner has 
not demonstrated that the Beneficiary has managerial subordinates as of the date of the petition, or 
that his two operational and administrative subordinates would relieve him from performing non­
qualifying operational duties. In fact, the Petitioner appears to claim on appeal that the Beneficiary 
is likely to be engaged by another company as a manager, and it does not explain how this 
circumstance would impact his asserted executive capacity with the Petitioner. For all of these 
reasons, the appeal will be dismissed. 
III. CONCLUSION 
The appeal inust be dismissed as the Petitioner did not establish that it will employ the Beneficiary 
in a managerial or executive capacity under the extended petition. 
ORDER: !he appeal is dismissed. 
Cite as Matter of E-H- Inc., ID# 623078 (AAO Sept. 19, 2017) 
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