dismissed L-1A Case: Construction

U.S. Citizenship 
and Immigration 
Services 
MATTER OF A-E- INC. 
APPEAL OF VERMONT SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: AUG. 4, 2017 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a three-employee construction company, seeks to extend its new office petition and 
the Beneficiary's temporary employment as its president under the L-lA nonimmigrant 
classification for intracompany transferees. See Immigration and Nationality Act (the Act) section 
101(a)(15)(L), 8 U.S.C. § 1101(a)(15)(L). The L-1A 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 will be employed in a managerial or executive capacity 
under the extended petition. 
On appeal, the Petitioner asserts that the Beneficiary qualifies as an executive as he does not directly 
perform the routine functions ofthe company. 
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. 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)(l5)(L) oft.he Act. 
The Act defines the term "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 
thereof; 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. 
Matter of A-E- Inc. 
The Act defines the term "managerial capacity" as an assignment within an organization in which 
the employee primarily manages the organization or a department, subdivision, function, or 
component; supervises and controls the work of other supervisory, professional, or managerial 
employees, or manages an essential function; if the employee directly supervises other employees, 
has the authority to take personnel actions, or if no other employee is directly supervised, functions 
at a senior-level within the organization 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. 
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. USCJS, 469 
F.3d 1313, 1316 (9th Cir. 2006); Champion World, 940 F.2d 1533. 
Additionally, 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. EMPLOYMENT IN A MANAGERIAL OR EXECUTIVE CAPACITY 
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, we also examine 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. Additionally, 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 1 01 (a)( 44 )(C) of the Act. 
A. Duties 
The Petitioner, on the Form I-129, Petition for a Nonimmigrant Worker, provided a general 
description of the Beneficiary's proposed duties under the extended petition. The Petitioner did not 
describe any duties in relation to its construction business. For example, the Petitioner asserted that 
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Matter of A-E- Inc. 
the Beneficiary would "[d]evelop a strategic plan to advance the company's mission and objectives," 
"[o]versee company operations to insure efficiency, quality, service, and cost effective 
management," "[p]lan, develop, and implement strategies for generating resources and/or revenues," 
and [a ]pprove company operational procedures, policies, and standards." These general assertions 
do not convey an understanding of the Beneficiary's actual day-to-day duties. Additionally, 
although the Petitioner refers to evaluating executives and directing policy-planning committees, the 
record does not include evidence that the Petitioner employs executives or has established 
policy-planning committees. 
In response to the Director's request for evidence, the Petitioner provided an overview of the 
Beneficiary's duties and listed the amount of time he devoted to those duties. The Petitioner stated 
that the Beneficiary spent 5 percent of his time ensuring the filing of legal and regulatory documents 
and monitoring compliance with relevant laws and regulations; 10 percent of his time helping top 
management determine values, mission, vision, and goals, as well as evaluating the Petitioner's 
relevance to the community; 20 percent of his time focusing on long range strategic issues, 
managing the company's due diligence, and working with staff to ensure their involvement and to 
motivate them to give their best; and 20 percent of his time on community relations including 
marketing and communications, acting as the Petitioner's advocate on issues relevant to it, its 
services and constituencies. This description also lacks detail regarding the Beneficiary's specific 
tasks for the Petitioner's construction business. The duties as generaJly described do not provide 
sufficient information to ascertain whether the Beneficiary will perform the marketing and 
communication tasks, the due diligence including filing legal and regulatory documents, and the 
first-line supervisory duties of the staff. It is not possible to ascertain whether these duties include 
executive, managerial, or non-qualifying duties. 
The Petitioner also indicated that the Beneficiary will spend 35 p~rcent of his time providing general 
oversight, managing the day-to-day operations, assuring program quality and organizational 
stability, assuring a work environment that recruits, retains, and supports quality staff and 
volunteers, and specifying accountabilities for management personnel (whether paid or volunteer) 
and evaluating their performance. This additional information does not detail the tangible tasks 
necessary to manage the Petitioner's day-to-day operations, and does not explain the Petitioner's use 
of volunteers in its construction business. The Petitioner also stated, generally, that the Beneficiary 
would spend 10 percent of his time on financing and overseeing the fiscal activities of the 
organization. However, the record does not include evidence that the Petitioner employs anyone to 
actually perform the routine tasks associated with its financial matters, other than the Beneficiary. 
The lack of detail regarding specific duties related to the Petitioner's construction business, as well 
as references to volunteers, when the Petitioner does not explain or claim it uses volunteers, raises 
questions regarding the accuracy, reliability, and origin of the job descriptions and the allocation of 
the Beneficiary's duties and responsibilities specified therein. 
On appeal, the Petitioner asserts that the Beneficiary duties "clearly include directing and managing 
the [P]etitioner's financial, legal, management, administrative [], and establishing financial and 
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Matter of A-E- Inc. 
budgetary plans and goals." However, reciting the 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 Petitioner has not provided sufficient detail or explanation of the 
Beneficiary's activities in the course of his daily routine. The actual duties themselves will reveal 
the true nature of the employment. 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). 
Moreover, the fact that the Beneficiary 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 Act. While 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, the position descriptions alone are insufficient to establish that his 
actual duties would be primarily managerial or executive in nature. 
B. Staffing 
The record includes a copy of the Petitioner's organizational chart which shows the Beneficiary as 
the president and identifies a purchasing manager and a client relationship manager reporting 
directly to him. The chart also includes a project manager to be hired and shows that an external 
team of project-based contractors report to the project manager. As the Petitioner did not employ the 
project manager when the petition was filed, this position will not be considered. The Petitioner 
must establish that all eligibility requirements for the immigration benefit have been satisfied from 
the time of the tiling and continuing through adjudication. 8 C.F .R. § 103 .2(b )( 1 ). 
The Petitioner does not include position descriptions for the employees identified as the purchasing 
manager and the client relationship manager. Accordingly, we cannot find that the duties performed 
in either of these positions will relieve the Beneficiary from performing the necessary sales, 
operational, financial, and administrative tasks necessary to run the Petitioner's construction 
business. We have also reviewed the Petitioner's agreements with several different individuals to 
perform general construction tasks that the Petitioner submits on appeal. The contracts are for 
limited services, such as installing granite counters or fixing stone around a sign at service stations, 
dismantling a freezer at a restaurant, and other remodeling tasks for various businesses. Although 
the Petitioner has submitted evidence that it uses subcontractors to perform some of the actual 
construction tasks, the record does not include evidence that the subcontractors, or the Petitioner's 
other employees, negotiate, market, and promote, the Petitioner's business and perform the 
Petitioner's other routine financial, operational, and administrative tasks. 
To establish executive capacity under the statute, a beneficiary must have the ability to "direct the 
management" and "establish the goals and policies" of that organization. Inherent to this definition, 
the organization must have a subordinate level of managerial employees for a beneficiary to direct 
and the beneficiary must primarily focus on the broad goals and policies of the organization rather 
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Matter of A-E- Inc. 
than the day-to-day operations of the enterprise. One does not qualify as an executive under the 
statute simply because one "directs" the enterprise as the sole managerial employee. Here, the 
Petitioner has not established how any of the positions held by the Beneficiary's subordinates are 
managerial positions. Thus, the record is deficient in establishing that the Beneficiary directs a 
subordinate level of managerial employees and will perform primarily executive duties. 
Although the Petitioner does not explicitly assert that the Beneficiary's duties are primarily 
managerial duties, we briefly note that to establish managerial capacity, the Petitioner may 
demonstrate that the Beneficiary will perform duties primarily as a personnel manager or a function 
manager. 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)(iv) of the Act. 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 
organization. See section 101(a)(44)(A)(ii) ofthe Act.1 
The Petitioner's descriptions of the Beneficiary's duties do not indicate that the-Beneficiary will 
supervise other employees. Although the Beneficiary may very well be the only individual 
responsible for the supervision of the Petitioner's two employees and the independent contractors, 
the Petitioner's organizational structure lacks the complexity to elevate the Beneficiary to a position 
higher than a first-line supervisor of non-professional employees.2 Therefore, the Beneficiary's 
position does not qualify as primarily managerial or executive under the statutory definitions. See 
section 101(a)(44)(A)(iv) ofthe Act. 
On appeal, the Petitioner asserts that a small company with a limited number of employees may still 
support a managerial or executive position and again refers to its retention of independent 
contractors for its construction projects. We recognize that U.S. Citizenship and Immigration 
Services (USCIS) must take into account the reasonable needs of the organization in light of the 
overall purpose and stage of development of the organization if staffing levels are used as a factor in 
1 The Petitioner does not claim and the record does not establish that the Beneficiary will perform primarily function 
manager duties. We note, for information purposes, that the term "essential function" is not defined by statute or 
regulation. If a petitioner claims that a beneficiary will manage an essential function, a petitioner must clearly describe 
the duties to be performed in managing the essential function, or more specifically, identify the function with specificity, 
articulate the essential nature of the function, and establish the proportion of a beneficiary's daily duties attributed to 
managing the essential function. See 8 C.F.R. § 214.2(1)(3)(ii). The record does not include this information. 
2 When evaluating whether a beneficiary manages professional employees, we 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"). Therefore, we focus on the level of education required by the 
position, rather than the degree held by subordinate employee. The possession of a bachelor's degree by a subordinate 
employee does not automatically lead to the conclusion that an employee is employed in a professional capacity. The 
record here does not include any evidence that the Beneficiary's subordinates are employed in professional positions. 
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Matter of A-E- Inc. 
determining whether an individual is acting in a managerial or executive capacity. See section 
101 (a)( 44 )(C) of the Act. However, the regulations provide strict evidentiary requirements for the 
extension of a "new office" petition and require USCIS to examine the organizational structure and 
staffing levels of the Petitioner. See 8 C.F.R. § 214.2(1)(14)(ii)(D). The regulation at 8 C.F.R. 
§ 214.2(1)(3)(v)(C) only allows the "new office" operation one year within the date of approval of 
the petition to support an executive or managerial position. Here, the Petitioner has not established 
that its business has the necessary staffing to sufficiently relieve the Beneficiary from performing its 
routine day-to-day operational, financial, and administrative tasks. Accordingly, the Petitioner is 
ineligible for an extension. 
The record documents that the Petitioner is doing business, but it does not contain sufficient 
probative evidence of the Beneficiary's claimed work in a managerial or executive capacity for the 
petitioning entity. A review of the totality of the record does not establish that the Beneficiary's 
work will be primarily managerial or executive in nature. The Petitioner has not overcome the 
Director's determination on this issue. 
III. CONCLUSION 
The appeal will be dismissed because the Petitioner has not established that the Beneficiary will be 
employed in a primarily managerial or executive capacity. 
ORDER: The appeal is dismissed. 
·Cite as Matter of A-E- Inc., ID# 545290 (AAO Aug. 4, 2017) 
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