dismissed L-1A Case: Construction

U.S. Citizenship 
and Immigration 
Services 
In Re: 8055819 
Appeal of California Service Center Decision 
Form 1-129, Petition for L-lA Manager or Executive 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : APR. 20, 2020 
The Petitioner , describing itself as a full-service construction and design concept company , seeks to 
temporarily employ the Beneficiary as its president and chief executive officer (CEO) in the United States 
under the L-lA nonirnmigrant classification for intracompany transferees. Immigration and Nationality 
Act (the Act) section 10l(a)(15)(L) , 8 U.S.C. § 1101(a)(15)(L). 
The Director of the California Service Center denied the petition , concluding that the record did not 
establish that the foreign employer was doing business as required by the regulations. The Petitioner 
filed an appeal, we withdrew the Director 's decision and remanded the matter for the entry of a new 
decision , noting the record at that time did not establish that the Beneficiary would be employed in a 
managerial or executive capacity. The Director issued a decision concluding that the Petitioner did 
not establish that the Beneficiary would be employed in a managerial or executive capacity in the 
United States . Now , the matter is before us again on appeal. 
On appeal , the Petitioner asserts, contrary to the Director's conclusion , that the Beneficiary's duty 
description is sufficient to demonstrate that he would act in an executive capacity . The Petitioner 
further contends that it is adequately staffed to support the Beneficiary in his asserted executive 
capacity . 
Upon de nova review , we will dismiss the appeal. 
I. LEGAL FRAMEWORK 
To establish eligibility for the L-IA nonimmigrant visa classification, a qualifying organization must 
have employed the beneficiary "in a capacity that is managerial, executive , or involve s specialized 
knowledge ," for one continuous year within three years preceding the beneficiary's application for 
admission into the United States . Section 101(a)(15)(L) of the Act. In addition , the beneficiary must 
seek to enter the United States temporarily to continue rendering their services to the same employer 
or a subsidiary or affiliate thereof in a managerial or executive capacity. Id. The petitioner must also 
establish that the beneficiary 's prior education , training , and employment qualify him or her to perform 
the intended services in the United States . 8 C.F.R. § 214 .2(1)(3). 
II. U.S. EMPLOYMENT IN AN EXECUTIVE CAPACITY 
The sole issue to be addressed is whether the Petitioner established that the Beneficiary would be 
employed in an executive capacity. 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. 
"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 101 (a)( 44 )(B) of the 
Act. 
When examining the 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 an 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 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 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 indicated that it was "established to provide design-build construction services" and "a 
full range of construction and general contracting services for commercial, retail and residential 
projects." In support of the petition, in response to the Director's later request for evidence (RFE) and 
notice of intent to deny (NOID), and now on appeal, the Petitioner submitted fundamentally the same 
duty description for the Beneficiary, as follows: 
Developing high quality business strategies and plans ensuring their alignment 
with short-term and long-term objectives (30% time spent): 
• Control organization and set up financial goals and milestones, 
• Promote goals of the Petitioner as set forth in the business plan, 
• Develop short/long term goals for subordinate managers to implement, 
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• Consult with the vice president/chief operating officer on the types of projects the 
Petitioner will engage in, 
• Set internal processes for projects to ensure timely and compliant construction, 
• Setup a process for his managers to vet subcontractors to ensure that the projects 
are completed with good quality materials and accurately based on the architect's 
drawings, 
• Ultimate authority over approval of payment structure for each project, 
• Create and revise policy and procedure, 
• Ensure compliance with applicable legal and regulatory requirements, 
• Consult with professional developers to ensure investment in the operation is 
performing to set goals and standards, 
• Oversee construction planning efforts, including identifying major priorities, and 
• Ensure the safe delivery of quality construction projects on-time and within budget. 
Organizational development (25% time spent): 
• Direct the management of the organization and responsible for establishing a 
management team to run the daily operations of the company, 
• Oversee the work of the vice president/chief operating officer (VP/COO), 
• Ensure that the overall company is heading in the right direction and has the 
ultimate power to ensure compliance with and establish company policies, 
• Supervise all financial operations, planning and development of the expansion of 
the U.S. investment, 
• Implement plans to ensure the company's profitable operation, 
• Regularly consult with the VP/COO to build an effective management team and on 
staffing, contractors, and clients during the normal course of a project, and 
• Develop innovative solutions to streamline existing operations and processes. 
Building and leading the senior executive team (25% time spent): 
• Responsible for making decisions that have significant impact, 
• Plan and develop the direction and operations of U.S. investment, recommend 
personnel actions, develop trade and consumer market strategies, and authorize all 
financial operations, 
• Maintain a rigorous approach to management via metrics throughout the company, 
• Build capacity within the current staff and add staff and layers of management 
accordingly, 
• Develop and lead professionals in the design/build phase working with the 
VP/COO, architects, engineers, lawyers and other professionals, 
• Ensure all city and building approvals, 
• Make contacts with various CEOs of other companies in order to get high-level 
projects, and 
• Maintain contacts with CEOs of banks, real estate development companies and 
investors. 
Allocate capital to the company's priorities (20% time spent): 
• Has veto power in all major decisions affecting the company, 
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• Report to the board of directors of the company on the operations and development 
of the company, 
• Set budgets and ensure that there are proper funds, 
• Carefully consider the company's major expenditures, 
• Evaluate organizational efficiencies for profitable operation, 
• Ensure the company's work site policies adhere to all safety standards, 
• Oversee operating plan, budget, cash flow and company finances in order to 
determine how much construction material and supply inventory to purchase, 
• Ensure project comes within or under budget and that banks are releasing funds on 
a timely matter at each milestone of the project to maintain adequate cash flow, 
• Analyze sales statistics to formulate policies and to assist promoting and gaining 
more business, and 
• Ensure that bids for projects are well vetted and establish ascertainable goals. 
The Beneficiary's asserted qualifying duties are overly generic and could apply to any executive 
working in any company and industry. These vague duties do little to substantiate that the Beneficiary 
would be primarily engaged in executive-level tasks on a daily basis. For instance, there is little detail 
or documentation to substantiate the financial goals and milestones the Beneficiary would set, the 
short or long term goals he would develop, the internal processes he would setup for his claimed 
managers, the policies and procedures he would create and revise, or the expansion of the "U.S. 
investment" he would formulate. Likewise, the Petitioner did not detail or document the plans the 
Beneficiary would implement to ensure the company's profitable operations, the "innovative solutions 
to streamline existing operations and processes" he would develop, the significant decisions he would 
make, the trade and consumer marketing strategies he would put in place, or the management metrics 
he would maintain. 
The Petitioner also did not specify or support the layers of management the Beneficiary would add, 
legal and safety compliance he would ensure, banks, real estate development companies, and investors 
he would maintain contact with, budgets or major expenditures he would approve, work site policies 
he would ensure, or operating plans he would put in place. This lack of detail and documentation is 
notable since the Petitioner indicated that the Beneficiary was already acting as the company's 
president, for instance by signing contracts, as of the date the petition was filed. Specifics are clearly 
an important indication of whether a beneficiary's duties are primarily executive in nature, otherwise 
meeting the definitions would simply be a matter ofreiterating 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). 
To the extent the Petitioner provides more detail as to the Beneficiary's proposed daily activities, these 
tasks are more indicative of his day-to-day involvement in the non-qualifying operational aspects of 
the business, rather than a primary focus on the goals and policies of the organization. For instance, 
the Beneficiary's duty description discusses his focus on ensuring that all projects are completed 
accurately based on the architect's drawings, determining "the payment structure for each [emphasis 
added] project," ensuring "the safe delivery of quality construction projects on-time and within 
budget," "approving and authorizing all financial operations," and coordinating with his subordinates, 
architects, engineers, and lawyers "in the design/build phase." Similarly, the Beneficiary's duty 
description stated that he would be engaged on "collaborating on each project to ensure all city and 
building approvals," determining "how much construction materials and supply inventory to 
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purchase," "releasing fonds [in] a timely manner at each milestone of the project," and ensuring that 
"bids for projects are well vetted." In light of the lack of detail regarding the Beneficiary's executive­
level duties and his apparent involvement in all the of operational aspects of its asserted construction 
business it appears more likely that he would be primarily engaged in non-qualifying duties. 
Whether the Beneficiary is an executive employee turns on whether the Petitioner has sustained its 
burden of proving that their duties are "primarily" executive. See sections 10l(a)(44)(B) of the Act. 
Here, the Petitioner does not sufficiently document what proportion of the Beneficiary's duties would 
be executive functions and what proportion would be non-qualifying operational duties. The 
Petitioner lists the Beneficiary's duties indicating that he would be involved in "all" operational 
aspects and "each" step of every construction project, but it does not adequately quantify the time he 
spends on non-qualifying tasks. For this reason, we cannot determine whether the Beneficiary was 
primarily performing executive capacity duties as of the date the petition was filed. See IKEA US, Inc. 
v. US. Dept. of Justice, 48 F. Supp. 2d 22, 24 (D.D.C. 1999). 
In addition, in the NOIR, the Director pointed to discrepancies in the Beneficiary's duty description 
and requested that the Petitioner specifically address them in response. For instance, the Director 
noted that the Beneficiary's duties discussed him coordinating with a board of directors in the United 
States, but that there was no evidence of such a board. The Director also discussed the prospective 
nature of the Beneficiary's tasks, including discussion of him building a management team, suggesting 
that this team was not yet in place to support him in an executive-level role as claimed. However, in 
response to the NOID, the Petitioner did not directly address these noted inconsistencies. Indeed, it is 
questionable that the Beneficiary would be tasked with reporting to a board of directors in the United 
States when he is the majority owner of the Petitioner and his claimed subordinate VP/COO owns the 
remaining portion of the company. Further, as noted by the Director, there is no evidence that the 
Petitioner has a board of directors to which the Beneficiary reports. These unresolved discrepancies 
only leave farther question as to whether the Beneficiary would have acted in an executive capacity 
as of the date the petition was filed. The Petitioner must resolve discrepancies and ambiguities 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). 
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 executive capacity within the meaning of section 10l(a)(44)(B) of the 
Act. By statute, eligibility for this classification requires that the duties of a position be "primarily" 
executive in nature. Id. 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 her actual duties would be 
primarily executive in nature. 
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B. Staffing 
If staffing levels are used as a factor in determining whether an individual is acting in an 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 corresponding with the date the petition was filed 
reflecting that the Beneficiary supervised a VP/COO overseeing an office manager, a procurement 
manager, an electrical engineer, and a construction manager. The chart also indicated that the 
construction manager supervised two superintendents overseeing various "subcontractors." 
As noted, the Petitioner asserts that the Beneficiary would qualify as an executive under an approved 
petition. 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 10l(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 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 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 has not submitted sufficient evidence to establish that the Beneficiary would act within 
a complex organizational hierarchy as of the date the petition was filed. For example, although the 
Petitioner submits an organizational chart including several subordinate managers, it also submitted a 
2017 IRS Form 1120, U.S. Corporation Income Tax Return indicating that it earned $115,556 in 
revenue and paid only $46,774 in salaries and wages during that year. 1 In contrast, the Petitioner 
provided asserted internal payroll records from October 201 7 reflecting that it employed the claimed 
VP/COO ($38,000 per year), procurement manager ($35,000 per year), construction manager 
($32,000 per year), electrical engineer ($42,000 per year), and one superintendent ($30,000); and a 
provided business plan indicated that they earned the listed annual salaries. As such, the fact that the 
Petitioner's 2017 IRS Form 1120 reflects it paid only approximately $47,000 in salaries during that 
year leaves substantial uncertainty as to whether it employed its claimed organizational structure as of 
the date the petition was filed. The Petitioner also stated in a support letter provided with the petition 
that it had "5 turnkey projects underway totaling $9.13 million." Again, this assertion is questionable 
given that its 2017 IRS Form 1120 indicated that it earned only approximately $116,000 in all of 2017. 
Again, the Petitioner must resolve inconsistencies in the record with independent, objective evidence 
pointing to where the truth lies. Matter of Ho, 19 I&N Dec. at 582, 591-92. 
The Petitioner also indicated in a provided business plan that "funding from the Foreign Company and 
revenues generated from [the Petitioner's] operations will support [the Beneficiary's] position with[in] 
one year of his visa approval," suggesting it was not operating sufficiently to support him in an 
1 The petition was filed on November 22, 2017. 
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executive capacity as of the date the petition was filed. For instance, the Beneficiary stated in an 
affidavit submitted in response to the Director's initial RFE that the Petitioner "has been struggling 
and I was asked to come on board to revive it" and that he was "offered this investment opportunity 
so [he] could tum around the company and develop the operations into a successful enterprise." 
Further, as we have noted, the Petitioner also appeared to indicate in the Beneficiary would build a 
management team and other staffing prospectively and that the claimed organizational structure was 
not already in place. In sum, this evidence and discrepancies demonstrate that the Petitioner was not 
sufficiently operational as of the date the petition was filed to support the Beneficiary within a complex 
organizational hierarchy. 
As discussed, the Petitioner provided little objective evidence to substantiate its claimed organizational 
structure and operations as of the date the petition was filed. In contrast, now on appeal, the Petitioner 
provides documentary evidence of its current operations in 2019, such as state quarterly wage reports, 
contracts, and other similar evidence. However, evidence of the Petitioner's operations nearly two 
years after the date the petition was filed is not relevant to demonstrating the Beneficiary's eligibility 
for the benefit sought. In sum, the preponderance of the evidence indicates that the Petitioner was not 
sufficiently operational and that it did not have adequate staffing as of the date the petition was filed 
to support the Beneficiary within a complex organizational hierarchy where he would primarily focus 
on the broad goals and policies of the organization rather than its day-to-day operations. The Petitioner 
must establish that all eligibility requirements for the immigration benefit have been satisfied from the 
time of the filing and continuing through adjudication. 8 C.F.R. § 103.2(b)(l). 
For the foregoing reasons, the Petitioner did not establish that the Beneficiary would act in an 
executive capacity in the United States. 
ORDER: The appeal is dismissed. 
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