dismissed L-1A Case: Construction And Real Estate

.
U.S. Citizenship 
and Immigration 
Services 
MATTER OFT -T-T-W-A-. LLC 
APPEAL OF VERMONT SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: FEB. 22. 2018 
PETITION: FORM 1-129. PETITION FOR A NONIMMIGRAl\T \VORKER 
The Petitioner, a construction and real estate business. seeks to continue the Beneticiary·s 
employment as its "CEO'" under the L-1 A nonimmigrant classification for intrncompany 
transferees. 1 S'ee Immigration and Nationality Act (the Act) section IOI(a)(I5)(L), S U.S.C. 
§ ll0l(a)(l5)(L). The L-lA classification allows a corporation or other legal entity (including its 
aftiliatc or subsidiary) to transfer a qualifying foreign employee to the United States to work 
temporarily in a managerinl or executive capacity. 
The Director of the Vermont Service Center denied the petition concluding that the Petitioner did not 
establish. as required, that: {1) it has a qualifying relationship with the Beneficiary's employer 
abroad: (2) the foreign entity where the Beneficiary was previously employed is doing business: and 
(3) the Beneficiary would be employed in a managerial capacity under the extended petition. 
On appeaL the Petitioner provides additional evidence and contends that the Director ahused her 
discretion by denying the instant petition. 
Upon de novo review, we find that the Petitioner has provided sufficient evidence to overcome the 
second ground for denial. However, we tind that the record lacks sut1icient evidence to show that 
the Petitioner has a qualifying relationship with the Beneticiary's foreign employer and that it \Vill 
employ tile Beneficiary in a managerial capacity. Therefore. '"'C will dismiss the appeal. 
I. LEGAL FRAMEWORK 
To establish eligibility for the L-1 nonimmigrant visa classification. a qualifying organization must 
have employed the Beneficiary in a managerial or executive capacity, or in a position involving 
specialized kno·wlcdge. for one continuous year within three years preceding the Beneficiary's 
application for admission into the United States. Section 10 I (a)(l5 )( L) of the Act. In addition. the 
1 
The Petitioner indicated on the Form 1-129. Petition for Nonimmigrant Worker. thal il \vas liling tilt' petition as a new 
office; however, the record indicates that it previously filed a new office petition (with receipt number 
Further, the Petitioner's responses in Part 2, "\Jos. 2 and 3 of the petition indicate that it seeks to 
continue the Beneficiary's previously approved employment and to extend the Beneficiary's currently held status. 
Therefore, the Petitioner does not qualify as a new office. 
,\ialter o{T-T-T-11/-A-. LLC 
Beneficiary must seek to enter the United States temporarily to continue rendering his or her services 
to the same employer or a subsidiary or aftiliate thereof in a manageriaL executive. or specialized 
knowledge capacity. fd. 
A petitioner seeking to extend an L-1 A 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. QLALIFY!l\G RELATIONSHIP 
The first issue to be addressed in this decision is whether the Petitioner established that it has a 
qualifying relationship with the Beneficiary"s employer abroad. To establish a ""qualifying 
relationship"" under the Act and the regulations. a petitioner must show that the beneficiary's foreign 
employer and the proposed U.S. employer are the same employer (i.e .. one entity v ... ith '·branch"" 
offices), or related as a ""parent and subsidiary"" or as "'at1iliates... See generally section 
I 01 (a)(l5)(L) of the Act: 8 C.F.R. § 214.2(1). 
The Director found that the Petitioner did not establish that it has a qualifying relationship with the 
Bencticiaz-y"s foreign employer. The Director acknowledged the Petitioner's submission of a stock 
certificate to show that it is wholly owned by the foreign entity. However. she focused on the lack 
of evidence showing that the foreign entity made a capital contribution in exchange for such 
ownership. 
On appeaL the Petitioner disputes the Director"s finding. arguing that it provided evidence which 
was in compliance with the previously issued request for evidence (RFE). including stock 
certificates among other documents that could be used to establish ownership. 
:--Jotwithstanding the RFE. we agree with the Director's analysis. As general evidence of a 
petitioner's claimed qualifying relationship, a certilicate of formation or organization of a limited 
liability company (LLC) alone is not sut1icicnt to establish 0\vncrship or control of an LLC. LLCs 
are generally obligated by the jurisdiction of formation to maintain records idcnti(ying members by 
name, address. and percentage of ownership. and written statements of the contributions made by 
each member. the times at which additional contributions arc to be made. events requiring the 
dissolution of the limited liability company. and the dates on which each member became a member. 
These membership records. along with the LLC" s operating agreement. certiftcatcs of membership 
interest and minutes of membership and management meetings. must be examined to determine the 
total number of members, the percentage of each member's ovvnership interest. the appointment of 
managers. and the degree of control ceded to the managers by the members. Additionally. a 
petitioning company must disclose all agreements relating to the voting of interests. the distribution 
of profit, the management and direction of the entity. and any other factor atTccting control or the 
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!vfall<'r ofT-T-T-W-A-. LLC 
entity. Matter o(Siemens lvled Sys .. Inc .. 19 I&N Dec. 362 (Comm'r 1986). Without full disclosure 
of all relevant documents. U.S. Citizenship and Immigration Services (lJSCIS) is unable to 
determine the elements of ownership and control. 
Further, the regulations specifically allow a director to request additional evidence in appropriate 
cases. See 8 C.F.R. § 214.2(1)(3)(viii). As ownership is a critical element of this visa classification, 
a director may reasonably inquire beyond the identification of a member of an LLC into the means 
by which this membership interest was acquired. Evidence should include documentation of' 
monies. property. or other consideration furnished to the entity in exchange for the membership 
interest. Additional supporting evidence could include an operating agreement, minutes of relevant 
membership or management meetings, or other legal documents governing the acquisition of the 
ownership interest. 
In the present matter. the Petitioner has not provided any evidence beyond a single membership 
certificate to support its ownership claim. Despite being notified in the denial that the membership 
certificate was not sutticicnt to adequately support its ownership claim, the Petitioner has not 
provided further evidence on appeal. Furthermore. we note that the signature page of the 
Petitioner's Articles of Organization shows that the Beneficiary signed the document in his capacity 
as the Petitioner's "member:· thereby indicating that he may also be an owner of the entity. This 
document is therefore inconsistent with the Petitioner's membership certificate. which indicates that 
the foreign entity is its only member. and thus its sole owner. The Petitioner must resolve this 
incongruity in the record with independent. objective evidence pointing to where the truth lies. 
MatterofHo. 19 I&N Dec. 582.591-92 (BIA 1988). 
In light of the unresolved inconsistency and the lack of sunicient supporting evidence showing that 
the foreign entity is. in fact. sole owner of the Petitioner. as claimed. we agree with the Director's 
finding that a single membership certificate is not sufficient to establish the existence of a qualifying 
relationship between the Petitioner and the Beneficiary's foreign employer. 
Ill. U.S. EMPLOYMENT IN A MANAGERIAL CAPACITY 
The Director also found that the Petitioner did not establish that the Beneficiary would be employed 
in the United States in a managerial capacity. As the Petitioner does not claim that the Beneficiary 
will be employed in an executive capacity. we restrict our analysis to whether the Beneficiary will he 
employed in a managerial capacity. 
The statute 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 tire 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 
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Matter ofT-l~T-W-A-. LLC' 
day-to-day operations of the activity or function for which the employee has authority. Section 
JOI(a)(44)(A) ofthe Act. 
If staffing levels are used as a factor in determining whether an individual is acting in a managerial 
or executive capacity, 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. See section I 0 I (a)( 44 )(C) of the Act. 
A. Duties 
When examining the managerial capacity of the Beneficiary. we will revic\V the Petitioner's 
description ofthejob 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). 
Based on the statutory definition of managerial 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). The Petitioner must also prove that the 
Beneficiary will be primari~y engaged in managerial duties. as opposed to ordinary operational 
activities alongside the Petitioner's other employees. See Family Inc. 1'. USCIS. 469 F.3d 1313. 
1316 (9th Cir. 2006): Champion World. 940 f.2d 1533. 
The Petitioner filed the petition claiming one employee and a gross income of $214,023 from its 
construction and real estate business. The Petitioner stated that during its first year of operation the 
Beneficiary was tasked with overseeing the operations and development of the company. determining 
which properties to purchase and develop, seeking out new investors and funding sources. and "hiring 
and managing a team of employees." The Petitioner did not provide a description of the duties the 
Beneficiary would perfom1 under an extended petition. 
The Director addressed this evidentiary deficiency in the RFE, instructing the Petitioner to provide a 
list of the Beneficiary's proposed job duties and the percentage of time the Beneficiary planned to 
allocate to each item on the list. Although the Petitioner's response letter indicates that evidence 
was provided to address the issue of the Beneficiary's managerial position in the United States. the 
record does not contain a statement with a list of the Beneficiary's proposed job duties. 
In the denial decision. the Director pointed out that the RFE response does not contain the requested 
job duty description and concluded that the Petitioner did not establish that the Beneficiary would 
allocate his time primarily to carrying out managerial tasks. 
On appeal. the Petitioner attempts to correct the evidentiary deficiency by providing a job 
description in which time was allocated to three groups ofjob duties. Namely. the Petitioner stated 
that 50% of the Beneficiary's time would be spent on the following: continuing to oversee the 
"start-up" operations. establishing the company's goals and objects. evaluating future opportunities 
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l'dallert?(T-T-T-W-A-, LLC 
and assessing potential risks, reviewing real estate inventory in the area, developing "merger and 
acquisition opportunities" and meeting with executives at other companies. overseeing human 
resources issues. and "completing contract negotiations including financial debt instruments." The 
Petitioner stated that another 30% of the Beneficiary's time would be spent reviewing sales reports. 
weekly financial reports, and payroll and expense reports and that the remaining 20% would be spent 
overseeing sales and marketing campaigns and communicating with the foreign entity. 
While the submitted job description indicates that the Beneficiary's discretionary authority to make 
business decisions is consistent \vith the definition of ··managerial capacity," it is overly vague and 
lacks a detailed description of the Beneficiary's actual daily tasks. The Petitioner did not identify 
any specific actions that are involved in overseeing its operations or explain its reference to the 
operation as ·•start-up." despite having been operational in the United States for over one year. The 
Petitioner also did not specify the types of "merger•· opportunities it intends to seek within the 
context of a business whose focus is buying and managing real estate. \Vhile the Petitioner indicated 
that the Beneficiary would have the discretion to hire and tire employees. it is unclear what other 
types of'·human resources issues" would require his oversight or that such oversight constitutes time 
spent performing managerial-level job duties. 
The Petitioner's reference to sales reports also requires further clarification. as it is unclear what 
products or services the Petitioner would be selling within the context of a real estate and 
construction business. Based on the lack of sales invoices. it does not appear that the Petitioner 
primarily generates its revenue through sales or that it employs any sales personnel to carry out the 
sales function. The Petitioner must support its assertions with relevant. probative, and credible 
evidence. See Maller of Chawalhe. 25 l&N Dec. 369. 376 (AAO 201 0). In fact. even if the 
Petitioner were to provide evidence to show that it generates revenue trom selling a product or 
service, its lack of sales personnel indicates that the Beneficiary would not only oversee. but that he 
would also be directly responsible f(Jr selling that product or service. 
Further, we note that the Petitioner did not detail the percentage or amount of time the Beneficiary 
would spend on specific daily tasks. as requested in the RFE. Rather. it assigned large percentages 
of time to groups of vague job responsibilities. thereby precluding a meaningful assessment of the 
amount of time the Beneficiary would allocate to managerial tasks versus tasks that are operational 
or administrative in nature. While no beneficiary is required to allocate 100% of his or her time to 
managerial-level tasks, the petitioner has the burden of establishing that the non-qualifying tasks the 
beneficiary would perform are only incidental to the proposed position. 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 
101 (a)( 44)(A) and {B) of the Act (requiring that one '·primarily'' perform the enumerated managerial 
or executive duties): Alaller ol Church Scienfolox_)· In!'!. 19 l&l\ Dec. 593. 604 (Comm'r 1988). 
\Vithout meaningful content specifying the actual daily job duties the Beneticiary would perform 
within the context of the Petitioner's real estate and construction business vve cannot determine 
whether the Beneficiary would allocate his time primarifr to managerial job duties. The actual 
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Matter ofT-T-T-W-A-. LLC 
duties themselves reveal the true nature of the employment. Fedin Bros. Co .. Lid v. Sam. 724 F. 
Supp. II 03. II 08 (E.D.N. Y. 1989). a(f'd. 905 F.2d 41 (2d. Cir. 1990). 
While we do not doubt that the Beneficiary will have discretionary authority over the Petitioner's 
financial and business concerns, the job description that the Petitioner provides on appeal consists 
mainly of general information that does not establish that the Beneficiary would primarily perform 
managerial tasks as a regular part of his daily or weekly routine. 
B. Stat1ing 
Beyond the required description of the job duties. USC IS reviews the totality of the record when 
examining a beneticiar:(s claimed managerial capacity. 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. 
The statutory definition of "managerial capacity" allows for both "personnel managers" and 
"function managers:· See section I 0 I (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. 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 arc 
professional." Section 10l(a)(44)(A)(iv) of the Act. If a beneficiary directly supervises other 
employees. the beneficiary must also have the authority to hire and tire those employees. or 
recommend those actions. and take other personnel actions. 8 C.F.R. * 214.2(1)( 1 )(ii)(B)(J). 
In the present matter. the Petitioner has provided inconsistent infonnation about its stat1ing structure 
that significantly detracts from our understanding of its organizational hierarchy. While the petition 
itself indicates that the Petitioner had one employee at the time of tiling. the organizational chart that 
the Petitioner provided in response to the RFE depicts four employees. showing the Beneficiary at 
the top of the organizational hierarchy and three employees -- a "supervisor." a handyman. and a 
'·general worker"- as the Beneficiary's subordinates. Despite the supervisory position title of one of 
the employees. the chart does not show that the Beneficiary"s subordinates have subordinates of their 
own. Therefore. the chart does not indicate that the Beneficiary oversees managerial or supervisory 
employees. As the Petitioner did not provide position descriptions or discuss the educational levels 
or educational requirements for any of the Beneficiary"s subordinates. the record did not establish 
that the Beneficiary"s subordinates are professional employees. 
The RFE response also included the Petitioner's 2017 state quarterly wage reports for the tirst and 
second quarters. showing that the Petitioner had four employees directly prior to and at the time of 
the petition's tiling. Both wage reports indicate that the Beneficiary was the only employee who 
received wages that were commensurate with those of a full-time employee: the three remaining 
employees were each paid $2000 quarterly. thereby indicating that they were employed on a part-
Matter ofl~T-T-W-A-. LLC' 
time basis. This leads us to question whether the Petitioner's staff was sut1icient to relieve the 
Beneficiary from having to allocate his time primarily to the organization's operational and 
administrative functions. As previously noted. only an employee who ""primarily"" carries out tasks 
of a managerial nature can he deemed as someone who is primarily employed in a managerial 
capacity. See. e.g .. sections 10l(a)(44)(A) and (B) ofthc Act. 
In denying the petition, the Director pointed to the lack of information about employee job duties 
and found that the evidence does not indicate that the Beneficiary would manage professionaL 
managerial, or supervisory personnel or that he would he relieved from having to allocate his time 
primarily to non-managerial job duties. Rather. the Director concluded that the Beneficiary would 
have a first-line supervisory role in which he would occasionally oversee the work of non­
protessional employees. 
On appeal, the Petitioner provides an updated organizational chart. showing that the Petitioner 
replaced its original handyman; the Petitioner's organizational structure, however. remained 
unchanged and did not indicate that the Beneficiary"s subordinates are supervisory or managerial 
employees. The Petitioner also offers employee job descriptions, which indicate that the 
supervisor's job duties include evaluating workers and '·[d]irectly supcrvis[ing] employees... We 
find that this job description is inconsistent with the organizational charts the Petitioner has provided 
thus far, given that both charts depict an identical organizational hierarchy. which does not show the 
""supervisor"" in a supervisory role in relation to any of the Petitioner's employees. Furthermore. it is 
unclear why the ""supervisor"" would receive the same pay as his subordinates if his position were 
truly supervisory with respect to those subordinates. The Petitioner must resolve this inconsistency 
in the record with independent. objective evidence pointing to where the truth lies. Malter ojHo. 19 
I&N Dec. 582.591-92 (BIA 1988). 
In addition to providing employee job duties. the employee job descriptions also indicate that all 
three of the Bcncticiary's subordinates work 30 hours per week. This claim. however, is 
unreasonable when considered in light of New York's applicable minimum wage standards and the 
actual employee wages that the Petitioner reported during the first two quarters in 2017. Namely. 
the 2017 lirst and second quarterly wage reports show that the Beneficiary's three subordinates 
received identical wages of $2000 per quarter. If these employees actually worked 30 hours per 
week as claimed, their hourly wage would average approximately $5.55. which is far below New 
York's 2017 minimum wage of $10.40 per hour. 2 In order for the Petitioner to have met this 
minimum wage requirement in 2017, it should have compensated the Bencliciary"s subordinates at 
least $3745 per quarter for 30 hours of work per week. As the subordinates were compensated only 
$2000 per quarter, it is unlikely that they worked more than 16 hours per week; in fact. they may 
have worked even fewer hours if their hourly compensation exceeded the state minimum wage. As 
such. we have reason to question the veracity of the information pertaining to the Beneficiary"s 
subordinates. including the duties they perform and the number of hours they actually spend working 
for the Petitioner and helping to relieve the Beneficiary hom having to perfonn the organization's 
'See https:!/www.ny.gov/new-york-statcs-minimum-wagc/ncw-york-states-minimum-wage (last visited Jan. 17. 20 18). 
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Maller o(T-7~T-W-A-, LLC 
non-managerial functions. If USC IS finds reason to believe that an assertion stated in the petition is 
not true, USCIS may reject that assertion. S'ee. e.g. Section 204(b) of the Act. 8 U.S.C. ~ 1154(h): 
Anetekhai v. INS. 876 F.2d 1218, 1220 (5th Cir. 1989): Lu-Ann Bakel)' Shop. Inc. v. Nelson. 705 F. 
Supp. 7. I 0 (D.D.C. 1988): Systronics Co1p r. IN,)'. 153 F. Supp. 2d 7. 15 (D. D.C. 2001 ). 
For these reasons, we find that the evidence does not support the Petitioner's assertion that it has 
sufficient staff to employ the Beneficiary in a managerial capacity and relieve him from having to 
primarily perfom1 operational and administrative tasks. The Petitioner must support its assertions 
with relevant, probative. and credible evidence. See Matter of' Chmmthe. 25 I&N Dec. 369. 376 
(AAO 2010). 
Alternatively. the term ·'function manager" applies generally when a beneficiary does not supervise 
or control the work of a subordinate stafT hut instead is primarily responsible for managing an 
"essential function" within the organization. See section I 01 (a)( 44 )(A)(ii) of the Act. 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 beneficiar-y's daily 
duties attributed to managing the essential function. See 8 C .F.R. ~ 214.2(1)(3 )(ii). In addition. a 
petitioner's description of a beneficiary's daily duties must demonstrate that the beneficiary will 
manage the function rather than perform duties related to the function. See ."vfatter ofZ-A-. Inc .. 
Adopted Decision 2016-02 (AAO Apr. 14. 2016 ). 
In this matter, the Petitioner neither claimed nor provided evidence to demonstrate that the Beneficiary 
manages an essential function. The Petitioner has not identified an essential function with specificity or 
provided a sufficient job description establishing precisely how the Beneficiary would manage an 
essential function. Further. as discussed above. the Petitioner does not appear to have the staHing 
necessary to carry out the duties of an essential function. 
For the reasons discussed above. the evidence submitted does not establish that the Beneficiary 
would be employed in a managerial capacity under the extended petition. 
IV. CONCLUSION 
For the reasons discussed above. we find that the Petitioner has not established that it has a 
qualifying relationship with the Beneficiary's proposed U.S. employer or that the Beneficiary will be 
employed in the United States in a managerial capacity. The appeal will be dismissed for these 
reasons. 
ORDER: The appeal is dismissed. 
Cite as Matter o(T-T-T-W-A-. LLC. ID# 927644 (AAO Feb. 22, 2018)