dismissed L-1A Case: Construction And Property Development

U.S. Citizenship 
and Immigration 
Services 
In Re : 23944913 
Appeal of California Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : APR. 19, 2023 
Form 1-129, Petition for a Nonimmigrant Worker (L-lA Manager or Executive) 
The Petitioner is a construction and property development company seeking to continue the 
Beneficiary temporarily as general manager 1 under the L-lA nonimmigrant classification for 
intracompany transferees. 2 See Immigration and Nationality Act (the Act) section 101(a)(15)(L), 
8 U.S.C. § 1101(a)(l5)(L). 
The Director of the California Service Center denied the petition, concluding that the record did not 
establish that the Beneficiary would be employed in an executive capacity under an extended petition. 3 
The matter is now before us on appeal. 
The Petitioner bears the burden of proof to demonstrate eligibility by a preponderance of the evidence. 
Matter of Chawathe, 25 I&N Dec. 369, 375-76 (AAO 2010). We review the questions in this matter 
de novo . Matter of Christa's, Inc., 26 I&N Dec. 537,537 n.2 (AAO 2015) . Upon de novo review, 
we will dismiss the appeal. 
I. LAW 
To establish eligibility for the L-lA nonimmigrant visa classification, a qualifying organization must 
have employed the beneficiary in a managerial or executive capacity, or in a position requiring 
specialized knowledge 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)(1). The prospective U.S . 
employer must also be a qualifying organization that seeks to employ a beneficiary in a managerial or 
executive capacity. 8 C.F.R. § 214.2(1)(3)(i). 
1 The Petitioner has since submitted evidence changing the Beneficiary 's position title from that of general manager to 
chief executive officer. At the time of filing, however , the Petitioner indicated that it sought to employ the Beneficiary in 
the position of general manager. 
2 The Petitioner previously filed a "new office" petition on the Beneficiary 's behalf. That petition was approved for the 
one-year period from November 10, 2020, until November 9, 2021. 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(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 . 
3 The Petitioner claims that the proposed employment would be in an executive capacity . 
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 AN EXECUTIVE CAPACITY 
The issue to be addressed in this decision is whether the Petitioner established that the Beneficiary's 
position under an extended petition would be in an executive capacity. 4 
"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. 
Based on the statutory definition of executive capacity, the Petitioner must first show that the 
Beneficiary will perform certain high-level responsibilities. Section 10l(a)(44)(B) of the Act. The 
Petitioner must also 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). 
The description of the job duties must clearly describe the Beneficiary's duties and indicate whether 
such duties are in a managerial or an executive capacity. See 8 C.F.R. § 214.2(1)(3)(ii). Beyond the 
required description of the job duties, we examine the employing company's organizational structure, 
the duties of the Beneficiary's subordinate employees, the presence of other employees to relieve the 
Beneficiary from performing operational duties, the nature of the business, and any other factors that 
will contribute to understanding the Beneficiary's actual duties and role in a business. 
Accordingly, we will discuss evidence of the Beneficiary's job duties along with evidence of the nature 
of the Petitioner's business and its staffing levels. 
A. Job Duties 
First, we will discuss the duties to be performed by the Beneficiary in the proposed position with the 
U.S. entity. We note that the actual duties themselves reveal the true nature of the employment. 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). 
In a supporting cover letter, the Petitioner stated that the Beneficiary will be employed in the position 
of general manager where he will spend 25% of his time overseeing and directing personnel, 30% 
4 The Petitioner does not claim that the Beneficiary would be employed in a managerial capacity. We will therefore limit 
our discussion to the basis of the Petitioner's claim that the Beneficiary would be employed in an executive capacity. 
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formulating and implementing goals and strategies through subordinate personnel, 20% establishing 
and implementing policies and procedures by negotiating with third parties and "caus[ing] the drafting 
of contracts with third parties"; the Petitioner allocated the remaining 25% of the Beneficiary's time 
to overseeing financial activities by directing a bookkeeper and third-party accountant, monitoring 
budgets, and engaging in risk management by establishing tools and procedures for assessing risk and 
defining risk management guidelines. 
In a request for evidence (RFE), the Director commented on the Beneficiary's job description, finding 
that the information it conveyed was too general and did not disclose the Beneficiary's daily duties 
within the scope of the Petitioner's operation. The Director asked the Petitioner to provide a more 
detailed description of the Beneficiary's proposed job duties illustrating how the stated duties apply 
to the Petitioner's business. The Director also asked the Petitioner to list the Beneficiary's typical 
executive job duties and assign a percentage of time to each. 
In response, the Petitioner provided a new job duty breakdown with new percentage allocations that 
are markedly different from those listed in the original job description. The new job description is 
divided into four sections, each representing one of four prongs that comprise the definition of 
executive capacity. Despite the Director's request, a percentage of time was not assigned to individual 
job duties, but rather to each prong of the statutory definition with 35% of the Beneficiary's time 
assigned to duties listed under the first prong - directing the management of the organization; 25% to 
duties under the second prong - establishing the goals and policies of the organization; 32% to duties 
under the third prong - exercising wide latitude in discretionary decision making; and 8% to the last 
prong, which focuses on the level of direction or supervision over the Beneficiary. The Petitioner also 
changed the Beneficiary's position title from that of general manager to chief executive officer (CEO), 
stating that the company has retained a chief operating officer (COO) who will take over many of the 
Beneficiary's responsibilities. 
Although we acknowledge change in the Beneficiary's position title to that of CEO, we note that this 
new position title is a departure from the Petitioner's original claim at the time of filing. See Matter 
of lzummi, 22 I&N Dec. 169, 176 (Assoc. Comm'r 1998) (establishing that a petitioner may not make 
material changes to a petition in an effort to make a deficient petition conform to USCIS requirements). 
We further note that the purpose of an 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 title, 
its level of authority within the organizational hierarchy, or its associated job responsibilities; a 
petitioner must establish that the position offered at the time of filing merits classification as a 
managerial or executive position. See 8 C.F.R. § 103.2(b)(l). If significant changes are made to the 
initial request for approval, a petitioner must file a new petition rather than seek approval of a petition 
that is not supported by the facts in the record. 
The Petitioner's RFE response does not clarify or provide more specificity to the original duties of the 
proposed position, but rather provides an altogether new job description with a new percentage 
breakdown, which, as noted early, is markedly different from the original job description. The fact 
that the hiring of a COO is claimed to alter the Beneficiary's job duties underscores the likelihood that 
the job description offered in response to the RFE reflects a change in the Petitioner's staffing 
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structure. The new description does not, however, impart clarity to the Beneficiary's original job 
description and proposed job duties at the time of filing. 
In light of the above, the focus of our analysis will be based on the job description submitted with the 
initial petition. That said, we find that the original job description was vague and did not convey a 
meaningful understanding of the Beneficiary's proposed job duties in the daily or weekly course of 
the Petitioner's construction business. For instance, the Petitioner stated that 25% of the Beneficiary's 
time would be allocated to oversight and direction of personnel, giving the Beneficiary "ultimate 
authority" over the company's staffing levels and charging him with the responsibility of 
implementing tools, programs, and procedures to enable "adequacy of the professional and managerial 
competencies" and ensuring the following: "the planning and reporting processes of human resources 
and labour [sic] costs," benefits and compensation, "organizational development" and coordination of 
changes in "management plans," and development of human resources based on the needs of the 
organization. However, the ambiguous reference to "tools, programs, and procedures" lacks sufficient 
clarity and does not further our understanding of the Beneficiary's daily or weekly activities within 
the scope of the Petitioner's operation. Likewise, references to "organizational development" and "the 
planning and reporting processes" are equally ambiguous, as these responsibilities can be broadly 
applied to a variety of industries or businesses, and they offer no insight about the Beneficiary's 
specific role and job duties within the scope of a construction business. 
The Petitioner also provided a list of the contractors and subcontractors it routinely hires for its 
building projects, stating that 30% of the Beneficiary's time would be spent formulating and 
implementing goals and strategies through the contracted staff However, the Petitioner did not list 
specific goals or strategies that the Beneficiary would set, nor does the record indicate that formulating 
new goals and strategies would be a daily or weekly activity to be performed by the Beneficiary in the 
routine course of a construction business. We note that 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. 8 C.F.R. § 214.2(1)(14)(ii)(C). As previously stated, 
the actual duties themselves will reveal the true nature of the employment. F edin Bros. Co., Ltd. v. 
Sava, 724 F. Supp. at 1108, aff'd, 905 F.2d 41. 
On appeal, the Petitioner states that the petition was denied because "the Beneficiary is not employed 
as an executive." The Petitioner argues that deference must be given to the prior approval of the 
Petitioner's initial petition. As a preliminary matter, we note that the petition was not denied because 
the Beneficiary is not currently employed in an executive capacity, but rather because the Petitioner 
failed to establish that the Beneficiary would be employed in an executive capacity under the extended 
petition. This distinction between the present and future tenses is critical, given that the Petitioner's 
burden is to establish that the Beneficiary's prospective rather than his current employment fits the 
statutory definition of executive capacity. Although the Petitioner bears the burden of establishing 
eligibility at the time of filing, that burden is with respect to employment that the Beneficiary would 
hold in the future, if or when this petition is approved. Contrary to the Petitioner's understanding, the 
Beneficiary's current employment, regardless of whether it falls within the parameters of the statutory 
definition, is not relevant for the purpose of establishing eligibility in this matter. 
Further, regarding the Petitioner's reliance on the approval of a previously filed petition, although we 
acknowledge the procedural aspects that led to the filing of the instant extension petition, we note that 
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the previously approved petition was filed when the Petitioner was deemed a "new office." The new 
office designation is reserved for entities that have been doing business in the United States for less 
than one year at the time of filing and are therefore subject to regulations that are separate from those 
that apply to a petitioner filing to extend a petition stemming from an approved new office petition. 
See 8 C.F.R. § 214.2(l)(l)(ii)(F) (defining "new office). Because there is a material change in 
eligibility requirements from those that were applicable to the filing of the initial new office petition, 
we will not defer to the prior approval. See 2 USCIS Policy Manual A.4(B)(l), 
https://www.uscis.gov/policymanual. 
In addition, the burden to establish eligibility in this matter falls squarely on the Petitioner. 
Section 291 of the Act, 8 U.S.C. § 1361; Matter of Otiende, 26 I&N Dec. 127, 128 (BIA 2013); Matter 
of Skirball Cultural Ctr., 25 I&N Dec. 799, 806 (AAO 2012); Matter of Ho, 19 I&N Dec. 582, 588-
89 (BIA 1988); Matter of Brantigan, 11 I&N Dec. 493, 495 (BIA 1966); Matter of D-Y-S-C-, Adopted 
Decision 2019-02 (AAO Oct. 11, 2019). We are not required to approve applications or petitions 
where eligibility has not been demonstrated merely because of a prior approval that may have been 
erroneous. Matter of Church Scientology Int 'l, 19 I&N Dec. 593, 597 (Comm'r 1988). It would be 
unreasonable for USCIS or any agency to treat acknowledged errors as binding precedent. Sussex 
Eng'g, Ltd. v. Montgomery, 825 F.2d 1084, 1090 (6th Cir. 1987), cert. denied, 485 U.S. 1008 (1988). 
For the reasons outlined in this decision, the Petitioner has not established that the Beneficiary would 
primarily perform executive-level duties under the extended petition. As discussed, the Petitioner has 
provided a job description that does not adequately specify the duties the Beneficiary would perform 
within the scope of the operation that was in place at the time of filing. Although we acknowledge the 
addition of a COO to the Petitioner's staffing as well as the Beneficiary's updated position title to that 
of CEO since this petition was filed, only those facts and circumstances that existed at the time of 
filing will be considered in determining the Petitioner's eligibility. See 8 C.F.R. § 103.2(b)(l). Here, 
the job description that was relevant at the time of filing is vague and does not adequately disclose the 
actual tasks that were assigned to the Beneficiary's proposed position at the time of filing. Although 
the record establishes a sense of the Beneficiary's heightened level of discretionary authority over the 
Petitioner's business activities and contracted personnel, it does not contain evidence elaborating on 
the specific actions the Beneficiary would be required to perform within the scope of the Petitioner's 
operation at the time of filing. 
Because of the noted ambiguities regarding the Beneficiary's job duties, the Petitioner has not 
established that the Beneficiary would dedicate his time primarily to performing executive-level tasks. 
B. Staffing 
Next, we will address the Petitioner's staffing at the time of filing. When staffing levels are used as a 
factor in determining whether an individual is acting in an executive capacity, the reasonable needs of 
the organization must be considered in light of the overall purpose and stage of development of the 
organization. See section 10l(a)(44)(C) of the Act. 
The Petitioner claimed one employee - the Beneficiary - on its petition form and explained that, with 
the exception of the Beneficiary, the remainder of its support staff consists of contracted and 
subcontracted labor. The Petitioner listed the following positions as part of its support personnel at 
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the time of filing: 1) the Beneficiary in the position of general manager; 2) I with 
owner I I as "supervising/general contractor"; 3) a contracted bookkeeper; 4) a 
professional subcontractor filling the procurement position; and 5) a third-party service provider as 
the Petitioner's certified public accountant (CPA). The Petitioner also provided a list of subcontractors 
who report tol land are selected based on an individual project's needs. In addition, the 
Petitioner stated that it was in the process of filling the position of "projects/construction manager" 
and claimed that I I would carry out the duties of that position until it is filled. 
The Petitioner illustrated its staffing arrangement in an organizational chart which depicts the 
Beneficiary at the top of the hierarchy, directly overseeing the bookkeeper, CPA, and 
"projects/construction manager." The vacant position is depicted as working alongside a position 
designated as "procurement" while overseeing a "supervising/general contractor," i.e.,I I 
and his company, and a "backup supervising/general contractor," a position that would be filled "as 
needed." Although I lwas listed as general contractor in a separate "Subcontractor List," 
this individual was not incorporated into the organizational chart, nor did the Petitioner include him 
in the supporting statement where its staffing arrangement was first discussed. This omission indicates 
that the Petitioner did not regularly rely onl I services at the time this petition was filed. 
The remainder of the chart lists a variety of subcontractors who would be subject to oversight by the 
"supervising/ general contractor." 
In the RFE, the Director observed that the Beneficiary is the Petitioner's only employee and recognized 
the Petitioner's use of contractors and service providers as part of its organizational structure. 
However, the Director questioned whether the Petitioner's staffing arrangement was sufficient to 
relieve the Beneficiary from having to primarily perform non-executive job duties. 
In response, the Petitioner provided a statement claiming that its organization is comprised of three 
divisions, each managed by one of three division managers.I I was listed as manager of 
the construction and remodeling divisionJ las manager of the multi-family units/hotels 
division, and I 5as manager of the landscaping maintenance division. However, the 
Petitioner did not provide consistent, reliable evidence showing that it was contracting the services of 
these three individuals at the time this petition was filed. For instance, the Petitioner provide its 2021 
transaction report listing the names, dates, and amounts of its expenditures in 2021. However, the 
report does not include any references to I I and it shows that the first payment to D I ldid not occur until November 9, 2021, four days after this petition was filed. The Petitioner 
also provided performance-based contracts for as well as 
IRS Form 1099-NECs showing that all three individuals received non-employee compensation from 
the Petitioner in 2021. However, only I lwas incorporated into the Petitioner's 
organizational chart at the time of filing, and only he was specifically included in the initial supporting 
statement where the Petitioner discussed its staffing arrangement, even though the terms of the 
performance-based contracts show that all three went into effect well prior to the November 2021 
filing of this petition. 6 The Petitioner must resolve these noted discrepancies with independent, 
5 The record contains two different spellings of this name; the initial supporting documents list the name as 
I but documents submitted later list it as I Despite the incongruent spelling, we presume both 
versions as pertaining to the same individual. 
6 I respective contracts show an effective date of January 4, 2021, and 
contract shows an effective date of August 2, 2021. 
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objective evidence pointing to where the truth lies. Matter of Ho, 19 I&N Dec. 582, 591-92 (BIA 
1988). 
Furthermore, ifl lwas contracted to fill the position of "divisional manager construction," 
a term that is expressly stipulated in his performance-based contract, it is unclear why the 
organizational chart that was submitted at the time of filing refers to I position as 
"supervising/general contractor." In addition, the compensation structure states thatl will 
receive $24,000 as a fixed retainer, payable in monthly increments of $2000. However, the 
Petitioner's 2021 transaction report shows no payments made directly tol I but rather to 
I I the company! I is claimed to own. Although the record contains a 
separate performance-based contract listing the Petitioner and I I as the contracting 
parties, it is unclear why two separate contracts, both of which were effective in January 2021, were 
executed with the com an and its owner. We also note that neither contract makes any mention of 
the dual role is claimed to have been filling at the time of filing, when it was stated that 
was not only responsible for his primary role as "supervising/general contractor," but 
that he was also temporarily assuming the role of "projects/construction manager," a position the 
Petitioner indicated it was looking to fill at the time of filing. 
In addition, the record contains conflicting evidence regarding who was listed as 
"procurement" in the original organizational chart. Namely, the Petitioner submitted an invoice issued 
by µ,ith a handwritten note stating that I I is actually an employee of I I I and would therefore be paid by the employer. However, this claim is inconsistent with a 
performance-based contract in the record, which lists the Petitioner and I I as the 
contracting parties and does not indicate thatl lwas executing the contract on 
I ]behalf as her employer. As noted earlier, discrepancies must be resolved through the 
submission of independent, objective evidence. See id. 
The RFE response also includes an updated organizational chart, which, even though consistent with 
the month and year this petition was filed, is markedly different from the organizational chart that was 
submitted at the time of filing. Namely, the more recently submitted chart depicts an amended staffing 
structure, which incorporates the previously named division managers -I I I as the Beneficiary's direct subordinates and shows the Beneficiary at the top of 
organization holding the position title of CEO. Although the CPA and bookkeeper positions were 
depicted in both organizational charts, the updated chart does not include a procurement position, 
which was previously assigned tol I nor does it include a "projects/construction manager" 
position, which, though previously vacant, was shown as "in hiring process," thus indicating that at 
the time of filing the Petitioner intended to fill, rather than delete, that position. Lastly, although the 
Petitioner claimed that it hired a COO, which would result some job duties being shifted away from 
the Beneficiary to be performed by the new COO, neither organizational chart includes a COO position 
as part of the staffing structure. 
We note that unresolved material inconsistencies may lead us to reevaluate the reliability and 
sufficiency of other evidence submitted in support of the requested immigration benefit. Id. Because 
the record contains no evidence resolving the above-described anomalies and inconsistencies 
concerning the Petitioner's staffing structure, it is unclear how the Petitioner would relieve the 
Beneficiary from having to primarily perform non-executive job duties and whether the Petitioner had 
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this ability at the time this petition was filed. An employee who "primarily" performs the tasks 
necessary to produce a product or to provide services is not considered to be "primarily" employed in 
a managerial or executive capacity. See, e.g., sections 10l(a)(44)(A) and (B) of the Act (requiring 
that one "primarily" perform the enumerated managerial or executive duties); Matter of Church 
Scientology Int 'l, 19 I&N Dec. 593, 604 (Comm'r 1988). 
III. CONCLUSION 
Given the evidentiary deficiencies described above concerning the Beneficiary's job duties and the 
Petitioner's staffing, we conclude that the Petitioner has not met its evidentiary burden of establishing 
that the Beneficiary's proposed employment would be in an executive capacity, and the appeal will be 
dismissed on that basis. 
ORDER: The appeal is dismissed. 
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