dismissed L-1A Case: Construction

U.S. Citizenship 
and Immigration 
Services 
MATTER OF 0-M-&S-, INC. 
APPEAL OF VERMONT SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: APR. 26, 2018 
PETITION: FORM 1-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner describes itself as a construction company that also imports and exports vehicle parts. 
It seeks to continue the Bcnellciary's temporary employment as its chief executive officer (CEO) 
and manager under the L-1 A nonimmigrant classi 11cation for intracompany transferees. 
1 
Immigration and Nationality Act (the Act) section 101(a)(I5)(L), 8 U.S.C. § 1101(a)(15)(L). The 
L-1 A 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: (I) the related foreign entity continues doing business; (2) the Petitioner 
will employ the Beneficiary in the United States in an executive capacity; and (3) the Petitioner is 
sufllciently staffed to support an executive position following the one-year "new office" period. 
The matter is now before us on appeal. In its appeal, the Petitioner submits additional evidence and 
asserts that the Director erred by disregarding evidence of eligibility and not giving sufficient 
consideration to the Petitioner's reliance on subcontractors. 
Upon de novo review, we will dismiss the appeal. We will withdraw the first stated ground lor 
deniaL which the Petitioner has overcome by submitting evidence of the parent company's ongoing 
business activity, with income generated primarily through freight transportation. 
L LEGAL FRAMEWORK 
To establish eligibility for the L-1 A nonimmigrant visa classification, a qualifying organization must 
have employed the beneficiary "in a capacity that is managerial, executive, or involves specialized 
knowledge," for one continuous year within the three years preceding the benellciary's application 
1 The Petitioner previously filed a "new office"' petition on the Beneficiary's behalf which was approved for a one year 
period. A ··ne\v 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(l)(l)(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. 
Mal/er of 0-M-&S-. Inc. 
for admission into the United States. Section I 0 I (a)(l5)(L) of the Act. In addition, the beneliciary 
must seek to enter the United States temporarily to continue rendering his or her services to the same 
employer or a subsidiary or afliliate thereof in a managerial or executive capacity. !d. 
A petitioner seeking to extend an L-1 A petition that involved a new office must submit a statement 
of the beneliciary's duties during the previous year and under the extended petition; a statement 
describing the stalling of the new operation and evidence of the numbers and types of positions held; 
evidence of its linancial 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 AN EXECUTIVE CAPACITY 
The Director denied the petition based on a linding that the Petitioner did not establish that it will 
employ the Beneficiary in the United States in an executive capacity. The Petitioner does not claim 
that it will employ the Beneficiary in a managerial capacity; therefore, our analysis will focus on the 
Petitioner's claim that the Beneficiary will be employed in an executive capacity under an extended 
petition. 
"Executive capacity" means 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 
I 0 l (a)( 44)(B) of the Act. 
Based on the statutory delinition of executive capacity, the Petitioner must first show that the 
Beneticiary will perform certain high-level responsibilities. Champion World. Inc. v. INS, 940 F.2d 
1533 (9th Cir. 1991) (unpublished table decision). The Petitioner also must prove that the 
Beneficiary will be primarily engaged in executive duties, as opposed to ordinary operational 
activities alongside the Petitioner's other employees. See Family Inc. v. USC!S, 469 F.3d 1313, 
1316 (9th Cir. 2006); Champion World, 940 F.2d 1533. 
When examining the managerial or executive capacity of a given beneficiary, we will look 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. See 8 C.F.R. § 214.2(1)(3)(ii). Beyond the 
required description of the job duties, U.S. Citizenship and Immigration Services (USCIS) examines 
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. 
2 
Maf/er of 0-M-&S-. Inc. 
Accordingly, we will discuss evidence regarding the Beneficiary's job duties along with evidence of 
the nature of the Petitioner's business and its stafling levels. 
A. Duties 
The Petitioner submitted two versions of the Beneficiary's job description. The first version 
appeared on the petition form: the second was part of the Petitioner's response to a request lor 
evidence: 
First version 
30%- Supervise all day to day 
operational functions of the company; 
5%- oversee sales and marketing; 
I 0%- oversee execution of all 
contractor work; 
I 0%- manage all employees; 
I 0%- maximize value for stockholders; 
I 0% -Implement strategies to 
maximize worker productivity; 
5%- plan prioritizing customer and 
organizational goals; 
I 0%- maintain an[d] monitor staffing; 
1 Oo/o- Drive pcrforn1ancc 1neasurcs 
(including efficiency versus 
e tkcti veness) 
3 
Second Version 
Negotiate with the members of the 
Board of Directors to set their 
expectations in relation to the desired 
results from [the petitioning company] 
in the short, mid and long range terms; 
5% 
Establish the policies and initiatives 
required to ensure that [the petitioning 
company] will operate as a team 
working together toward the desired 
results. 5% 
Establishes the goals needed to reach the 
objectives of [the petitioning company] 
and to accomplish the expectations of 
the future Directors, Managers and other 
Members. 5% 
Coordinates the development and the 
implementation of the plans, programs, 
and strategies for generating resources, 
revenues, and profits for [the petitioning 
company] ensuring that they will reach 
the established goals and objectives for 
the company; 15% 
Directs employees by coordinating the 
activities of the different areas of [the 
petitioning company] and by ensuring 
that the work is done under the 
established policies, and focused on the 
desired and programmed results; 20% 
Malter olO-M-&S-. Inc. 
Reviews and presents activity reports 
and financial statements to the Board of 
Directors to detem1ine and to show the 
progress and status while attaining goals 
and objectives, in accordance to what 
was planned for the current conditions; 
30% 
Represents [the petitioning company] 
before the managers, employees, 
contractors, clients, potential clients, 
prospects, suppliers, partners, 
authorities, community leaders, civic 
groups, students, and the community in 
general. 20% 
The two job descriptions are very different trom one another, but both lack detail. 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). Reciting a 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 actual duties themselves will reveal the true nature of the employment. ld. Here, 
the Petitioner has not provided the necessary details; neither version of the job description provides 
much information about the actual tasks that the Beneficiary performs for the company. 
In addition to the percentage breakdown reproduced above, the second version of the Beneficiary's 
job description indicated that he "is directly responsible for directing the General Manager, the 
Marketing Manager, the Planning and Development and the Operations Manager." None of those 
positions exist on the Petitioner's organizational chart. In fact, at the time of filing, the Beneficiary 
was one of only three employees at the petitioning company. 
The Director found that the Beneficiary's duties are not primarily executive, and that the Beneficiary 
does not oversee lower-level managers within the company? The Petitioner's appellate brief does 
not discuss the Beneficiary's duties except to state that he, "as an executive decision, focused [the 
company] towards construction projects." 
The Petitioner submits a third job description on appeal, which resembles a general template. It 
states, fur instance, that the Beneficiary is "[r]esponsible fur the development and implementation of 
strategies and sets the overall direction of a certain area of the company or organization." It also 
:! We will further address staffing issues below. 
4 
Mauer of 0-M-&S-. Inc. 
contains a number of references to "other executives," which do not exist within the company.· None 
of the three job descriptions provide substantive, verifiable details that can be reliably correlated to 
activities documented in the record. 
The Petitioner has not established that the Beneficiary's duties are primarily 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, USC IS 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) 
of the Act. 
The statutory definition of the tem1 "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 IOI(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 a beneficiary 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 an 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. 
In the present matter, two grounds for denial relate to the Petitioner's staffing. The Director found 
that the company did not employ sufficient staff to relieve the Beneficiary from performing non­
executive tasks, and that the Petitioner had not met the staffing goals articulated in the new office 
petition. Because these issues are closely interrelated in this case, both relating to the sufficiency of 
staffing, we wi II consider them together. 
I. Employees ( 
The Petitioner's organizational chart showed two subordinates who reported to the Bencticiary: a 
secretary and a manager. The secretary's duties are largely administrative and operational. The 
Petitioner listed the manager's responsibilities: 
• Assist the Chief Executive Officer in formulating and implementing the 
administrative and operational policies and procedures; 25% 
• Responsible tor the results trom all the activities;.directing all the Management and 
operational aspects of the Operations Division; coordinating the several levels of 
subcontractors and their employees; exercising authority delegated by the CEO; 
5 
Maller of 0-M-&S-. Inc. 
Supervise and exercise direction over subordinate employees and subcontractors who 
perform the day-to-day; [sic] 25% 
• Responsible for the financial and administrative activities· of the company; 
responsible for controlling and reporting the financial status of the corporation; 
responsible for otricial documents of the company; 25% 
• Responsible for the sales goals and objectives; directing all the management and 
operational aspects of the Marketing Division; contacting Clients; promoting sales; 
exercising authority delegated. by the CEO. 25% 
The manager's listed job duties are vague, general, and unsupported by documentary evidence 
showing, for instance, that the manager has authority over subcontractors. The three-person 
organizational chart did not show an operations division or a marketing division, and the Petitioner 
has not identified any contractors to whom it has delegated those responsibilities. Contacting clients 
and promoting sales appear to be first-line operational duties rather than the responsibilities of a 
manager. 
The Petitioner contends that the manager holds a professional position, but she either works part­
time or earns minimum wage. (She earned $1288 per month in 2016, which is slightly lower than 
Florida's 2016 minimum wage lor a 37-hour work week.) 
The Director found that neither of the Beneficiary's subordinates appear to be managers, and that 
"the record does not clearly indicate who is responsible lor performing the duties associated with 
maintenance, sales, shipping, etc." The Director also found that the small size of the company did 
not appear to warrant the organizational structure claimed, in which one of the three employees is an 
executive and another is a manager. On appeal, the Petitioner states that the company has grown 
lrom three employees to six, and submits job descriptions for the six employees. 
The Petitioner neither claims nor demonstrates that the three new employees- an assistant, a jobsite 
inspector, and a collections agent - worked for the company at the time of filing. The initial 
documentation consistently indicated that the Petitioner had only three employees. While a new 
office petition can rely on expected growth after the tiling date, the new office provisions do not 
apply to a subsequent petition to extend the Beneficiary's L-1 A status. In the current proceeding, the 
Petitioner must establish that it was already eligible at the time of tiling the petition. See 8 'C.F.R. 
§ 103.2(b)(l). USCIS cannot properly approve the petition at a future date after the petitioner or 
beneficiary becomes eligible under a new set of facts. See Matter of Katigbak, 14 l&N Dec. 45, 49 
(Reg 'I Comm 'r 1971 ). Therefore, we need not closely analyze the three newly claimed positions. 
We will note, however, that the assistant's job description clearly pertains to a retail store rather than 
to an import/export tirrn or construction company. According to that description, the assistant 
"[!]rains store staff," consults "with [the] retail store manager," and "[a]ttracts customers by 
originating display ideas." This job description is plainly inapplicable to the Petitioner's claimed 
business activity, and there is no reason for us to presume that the other five job descriptions 
contained in the same anonymously prepared document are any more accurate or reliable. (Even if 
6 
Malter of 0-M-&S-. Inc. 
the Petitioner had shown that it now operates a retail store, and therefore has a legitimate need for 
the position described, the Petitioner had no such store at the time of tiling and therefore the opening 
of the store would amount to a substantial change of material circumstances, warranting the filing of 
a new petition that could properly take the new facts into account.) 
The Petitioner has not shown that its in-house employment structure warrants an executive position. 
The Petitioner asserts, on appeal, that it "relies on sub-contractors to complete [its] projects." We 
will address this assertion below. 
2. Subcontractors 
Apart from the two employees, the Petitioner's organizational chart also listed subcontractors who 
performed the following tasks, as described by the Petitioner: 
o Tile and Laminate Installation 
o Shower Doors and Blinds 
o Granite Supplier and Installation 
o Air Conditioning 
o Appliances Repair 
o Carpet Cleaning 
o Painting 
o Wallpaper Installation 
The listed subcontractors performed a wide range of construction-related functions, but not all such 
functions. A June 2016 invoice lists only one item: "Change roof, $17,000." None of the named 
contractors are identified as roofers or carpenters. Other invoices list additional tasks, such as 
plumbing and pressure washing, for which the Petitioner has not identified subcontractors. 
In the denial notice, the Director acknowledged the Petitioner's assertion that it relies on 
subcontractors, but found that the Petitioner had not established that subcontractors relieve the 
Beneficiary and his subordinate manager fi·om having to primarily perform non-qualifying 
operational or administrative tasks. 
On appeal, the Petitioner submits copies of recent (post-filing) service agreements with two of the 
subcontractors identified on the organizational chart, and a third company (which installs gutters) not 
named there. The agreements show that the Petitioner hires the subcontractors for individual jobs, 
using their services intermittently rather than continuously. The service agreements do not establish 
that any employee of the petitioning entity has managerial or executive authority over the 
subcontractors' employees. 
The Petitioner secured approval of a new oftice petition based on the premise that it would import 
and export vehicle parts, and operate a construction company, within a year after approval. The 
Petitioner's only fully documented business activity appears to have been as an occasional referral 
7 
Mmter of' 0-M-&S-. Inc. 
• service, dispatching outside contractors to job sites; the Petitioner has not shown that is a licensed 
construction contractor or that it directly employs any construction workers. Likewise, the Petitioner 
has not documented any import/export activity or identified any employees directly engaged in that 
activity. The Petitioner has not shown that its minimal structure at the time of filing warranted an 
executive position. 
Ill. DOING BUSINESS 
A new office extension petition must include evidence that the petitioner has been doing business for 
the previous year. 8 C.F.R. § 214.2(l)(l4)(ii)(B). "Doing business" means the regular, systematic, 
and continuous provision of goods and/or services by a qualifying organization and docs not include 
the mere presence of an agent or office of the qualifying organization in the United States and 
abroad. 8 C.F.R. § 214.2(l)(l)(ii)(H). 
The Petitioner reported gross receipts of $676,331 on its 2015 income tax return, and a profit and 
loss statement reported $475,209 in income from January I through September 16, 2016. The 
Petitioner has not fully documented receiving this claimed income or shown what services it 
provided in exchange for it. The Petitioner claims to have "established itself as a profitable U.S. 
company facilitating trade between [the] South American and the American market," but the 
Petitioner did not document this claimed activity. Although the Petitioner claims to do business in 
part as a construction company, the Petitioner did not submit a copy of a contractor's license to show 
that it is authorized to perform construction work in Florida. 
While the 2016 balance sheet shows $475,209 in income, the accuracy of the balance sheet is in 
question. The same document indicates that the Petitioner paid $20,700 in salaries from January to 
September 2016, but tax and payroll documents in the record show $7576 in salaries paid every 
month since April 2016. This very significant discrepancy casts doubt on the reliability of the profit 
and loss statement. Unresolved material inconsistencies may lead us to reevaluate the rcliabiliJy and 
sufticiency of the Petitioner's evidence. Maller of!·! a, 19 l&N Dec. 582, 591-92 (BlA 1988). Also, 
other key claims by the Petitioner lack documentary support. 
The Petitioner documented only a traction of the $475,209 it claims to have earned in 2016. Copies 
of four invoices dated between February and June 2016 described various construction or renovation 
jobs, billed for an aggregate total of $48,041.11, and photocopies of seven checks payable to the 
Petitioner and dated between December 2015 and June 2016, totaling $59,266.05. Four invoices 
issued over the course of four months do not appear to show regular, systematic, and continuous 
provision of services. The invoices are numbered between 354 and 419, but we will not infer the 
existence of additional invoices, because the invoices are not numbered chronologically: 
8 
Mutter of 0-M-&S-, !nc. 
Number 
354 3 
401 
409 
419 
Date 
2/14/2016 
6/1/2016 
4/22/2016 
6/13/2016 
Also, the most recent invoice dates from eight months before the petttton's filing date. We 
acknowledge that the Petitioner's profit and loss statement shows additional income beyond these 
invoices, but the Petitioner did not directly document any business activity between June 2016 and 
February 2017. 
Given the Petitioner's inconsistent and uncorroborated assertions regarding the nature and extent of 
its business activity, we find that the Petitioner has not met its burden of proof to show regular, 
systematic, and continuous provision of services at the time of tiling. The Petitioner has not 
established that it was doing business, as the regulations define that term, at the time of filing and 
during the previous year. 
IV. CONCLUSION 
The Petitioner has not established that it will employ the Beneficiary in an executive capacity, or that 
it was doing business during the months leading up to, and including, the filing date. 
ORDER: The appeal is dismissed. 
Cite as Matter ofO-M-&S-. fnc, 10# 826880 (AAO Apr. 26, 20 18) 
3 Among the items billed on invoice #354 arc $298.82 for "meat for party," $269.97 for "food for party," and $45.98 for 
'·ice."' It is not clear why a construction contractor would bill these expenses to a customer. 
9