dismissed L-1A Case: Educational Services

U.S. Citizenship 
and Immigration 
Services 
MATTER OF G-P-G- CO. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: APR. 11, 2019 
APPEAL OF CALIFORNIA SERVICE CENTER DECISION 
PETITION: FORM 1-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, which intends to invest in and provide educational services, seeks to temporarily 
employ the Beneficiary as the president/chief executive officer (CEO of its new office 1 under the L­
IA nonimmigrant classification for intracompany transferees. Immigration and Nationality Act (the 
Act) section 10l(a)(l5)(L), 8 U.S.C. § l 10l(a)(l5)(L). The L-IA 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 California Service Center denied the petition, concluding that the record did not 
establish, as required, that the Beneficiary will be employed in the United States in a managerial or 
executive capacity within one year, or that she has been employed abroad in a managerial or executive 
capacity. 
On appeal, the Petitioner contends that the Director did not consider all of the submitted evidence and 
failed to apply the preponderance of the evidence standard to the facts presented. The Petitioner asserts 
that the Beneficiary has been employed abroad in an executive capacity, and maintains that its new office 
would support the Beneficiary in an executive capacity within one year of approval of the petition. 
Upon de nova review, we will dismiss the appeal as the Petitioner has not established that the new 
office would support an executive position within one year. As this is a fundamental element of 
eligibility and the Petitioner has not satisfied this element, we will reserve the remaining issue. 
I. LEGAL FRAMEWORK 
To establish eligibility for the L-IA nonimmigrant visa classification in a petition involving a new 
office, 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. 8 C.F.R. § 214.2(1)(3)(v)(B). In addition, the beneficiary must seek 
1 The term "new office" refers to an organization which has been doing business in the United States 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 no more than 
one year within the date of approval of the petition to support an executive or managerial position. 
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Matter of G-P-G- Co. 
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. Id. 
The petitioner must submit evidence to demonstrate that the new office will be able to support a 
managerial or executive position within one year. This evidence must establish that the petitioner 
secured sufficient physical premises to house its operation and disclose the proposed nature and scope 
of the entity, its organizational structure, its financial goals, and the size of the U.S. investment. See 
generally, 8 C.F.R. § 214.2(1)(3)(v). 
11. U.S. EMPLOYMENT IN AN EXECUTIVE CAPACITY 
The primary issue to be addressed is whether the Petitioner established that the new office would 
support an executive position within one year. The Petitioner does not claim that the Beneficiary 
would be employed in the United States in a managerial capacity. 
The term "executive capacity" is defined as 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 10l(a)(44)(B) of the Act. 
In the case of a new office petition, we review a beneficiary's proposed job duties as well as the 
petitioner's business and hiring plans and evidence that the business will grow sufficiently to support 
a beneficiary in the intended managerial or executive capacity. A petitioner has the burden to establish 
that it would realistically develop to the point where it would require the beneficiary to perform duties 
that are primarily managerial or executive in nature within one year. Accordingly, the totality of the 
evidence must be considered in analyzing whether the proposed managerial or executive position is 
plausible considering a petitioner's anticipated staffing levels and stage of development within a one­
year period. See 8 C.F.R. § 214.2(1)(3)(v)(C). 
A Duties 
The Petitioner indicates that it plans "to cooperate with" an existing U.S. entity 
doing business as ______ "to operate an education center to 
provide after school services." 
The Petitioner stated that the Beneficiary , as president/CEO of the new office, will perform the 
following duties: 
• Report to the Board of Directors ; establish U.S. company's policies, goals, and 
objectives; implement the strategic goals and objectives of the organization ; 
• Give direction and leadership toward the organization 's achievement in philosophy, 
mission, strategy, and objectives; 
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Matter of G-P-G- Co. 
• Exercise discretionary decisions on business strategies and overall direction of U.S. 
company; 
• Carry out the strategic plans and policies as approved by the board of directors; 
• Review reports, representation and financial statements from vice president and 
department managers to determine progress and status in attaining objectives; 
• Formulate planning recommendations to the board of directors; 
• Oversee budgets, investments, and operations of organization; recommend yearly 
budget for board approval. 
This description is overly broad, as it focuses on the Beneficiary's authority over policy, strategy, and 
"overall direction" of the business without explaining the specific tasks she would be performing on a 
day-to-day basis to carry out these responsibilities by the end of the Petitioner's initial year of 
operations. It also refers to a "vice president" position that does not appear on the Petitioner's 
proposed organizational chart, and does not contain any specific references to the company's intended 
business activities. 
The Petitioner also submitted a separate table with a lengthy description of the Beneficiary's proposed 
position; specifically, it listed a total of approximately 60 duties and arranged them into groups, with 
each group of duties requiring I 0% of her time. However, despite its length, the description is very 
general, repetitive (with some duties listed two or three times), and does not provide any meaningful 
insight into what the Beneficiary would be doing as the president/CEO of a center providing after 
school educational services. For example, more than half of the listed duties are related to the 
company's financial affairs, and include: establishing "overall financial accounting and financial 
management systems"; reviewing and approving financial business plans and forecast; establishing 
financial and accounting policies and goals; establishing financial procedures and standards; 
overseeing finance strategies and activities; utilizing activity-based financial analysis; monitoring 
financial performance; reviewing financial information; reviewing financial statements; directing the 
preparation of financial statements; reviewing and implementing "finance, accounting, billing and 
auditing procedures"; coordinating fiscal activity reporting activities; supervising the implementation 
of the financial plan; developing systems to safeguard the company's financial assets; overseeing 
budgeting and budget implementation; and overseeing "financial management." While the Petitioner 
has conveyed the Beneficiary's authority over the company's financial matters, it is unclear how these 
represent discrete tasks that the Beneficiary would perform on a day-to-day basis, or how she would 
spend more than half of her time on such duties given the intended nature and scope of the business. 
Many of the remaining duties resemble those in the shorter description quoted above and resemble 
elements of the statutory definition of "executive capacity." For instance, the Petitioner indicated that 
the Beneficiary will "establish and adjust" the company's policies, objectives, strategies, development 
objectives and the "whole organization"; "give direction and leadership toward the organization's 
achievement"; report to the board of directors; "oversee the implement[ation] of the strategic goals 
and objectives of the organization"; and direct the management of the organization. The Petitioner 
did not specify the types of strategies and policies she would be expected to establish and implement 
within the context of its business in support of its claim that such tasks would require a significant 
portion of her time within one year. Conclusory assertions regarding the Beneficiary's employment 
capacity are not sufficient. Merely repeating the language of the statute or regulations does not satisfy 
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Matter of G-P-G- Co. 
the Petitioner's burden of proof 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); Avyr Assocs., Inc. v. Meissner, 1997 WL 188942 at *5 
(S.D.N.Y.). Here, the Petitioner has not provided the necessary detail or an adequate explanation of 
the Beneficiary's proposed activities in the course of her daily routine. 
Finally, in response to a request for evidence (RFE), the Petitioner submitted another statement of the 
Beneficiary's proposed duties, which was, like the previous description, lengthy but lacking in 
probative details regarding the Beneficiary's actual proposed day-to-day tasks. The Petitioner grouped 
the duties into five undefined areas of responsibility. Many of the duties were repeated from the earlier 
description, but most of the finance-related tasks that comprised nearly half of the initial description 
were absent from the description submitted in response to the RFE. Overall, the description did not 
add additional specificity to those provided previously. 
The Petitioner has conveyed that the Beneficiary, as the company's senior employee, would have 
authority to establish plans, policies, and objectives for the company, supervise any employees hired, 
and make major decisions regarding its finances and overall direction. However, the Petitioner must 
also establish that these types of responsibilities would primarily occupy the Beneficiary's time within 
one year, and to make this determination, we review the totality of the evidence. The Beneficiary's 
discretionary authority is only one of several factors we consider in determining whether the Petitioner 
would employ her in a qualifying capacity at the end of the one-year new office period. 
B. Business Plan and Project Staffing 
In order to qualify for L-lA nonimmigrant classification during the first year of operations, the 
regulations require a petitioner to disclose the proposed nature of the business and the size of the U.S. 
investment, and establish that the proposed enterprise will support an executive or managerial position 
within one year of the approval of the petition. See 8 C.F.R. § 214.2(1)(3)(v)(C). This evidence should 
demonstrate a realistic expectation that the enterprise will succeed and rapidly expand as it moves 
away from the developmental stage to full operations, where there would be an actual need for a 
manager or executive who will primarily perform qualifying duties. 
As noted, the Petitioner indicates that it intends to "cooperate with" to operate an 
educational after-school services facility. The Petitioner submitted a signed memorandum of 
understanding (MOU) between it and which states the following: 
[The Petitioner] desires to own and invest in a new afterschool education and extra-
curricular program business run by . located and limited to . 
Texas , USA. . . shall manage and operate the facility programs , to 
include , but not limited to staffing , budget, accounting , HR, Marketing , Brand , Product 
Management , Education , Curriculum , and all other business activities , except for 
investment. [The Petitioner] is solely responsible for all investment funding and shall 
provide appropriate timely financial resources to support such efforts as build a new 
company within the USA. 
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Matter of G-P-G- Co. 
Under the MOU's terms, the Petitioner agreed to invest $10,000 per month towards operating 
expenditures, $2500 per month for capital expenditures, and $5000 per month for marketing and 
advertising costs, and, in exchange, would receive 70% of the net profits of the business with the 
remaining 3 0% going to The Petitioner submitted a copy of a check for $15,000 
paid to in April 2018. 
Based on this evidence, it appears that the Petitioner will not be operating the after­
school services location and will merely own and fund the business. If the Petitioner does not intend 
to manage, operate, or staff the location, or handle its human resources functions, market its services, 
provide its services, or be responsible for any of its business activities, then it is unclear how it would 
require the services of an executive in the United States to oversee the operation of the business. The 
Petitioner has not identified any additional investments or activities to be undertaken in the first year 
or thereafter. 
The Petitioner submitted its business plan at the time of filing and a revised/updated business plan in 
response to the Director's RFE. The initial business plan contained references that did not appear to 
apply to the operation of an after-school educational services business. For example, the initial business 
plan states that the Petitioner "will offer clients a reliable and efficient solution for more efficiency in 
production and cost control," noted that one of the trends in its industry is "rising domestic raw material 
prices" in the United States, and observed that "clients in the logistics and internal trade industry tend to 
be loyal." There are also references to "local manufacturers and wholesalers" who would serve as 
competition to the new business. The Petitioner removed some of these anomalous references (after the 
Director noted them in the RFE) and submitted a revised business plan, but it did not explain why such 
references were included in its business plan in the first place. 
Other aspects of the business plan, including a sales forecast, timetable for proposed actions, and 
financial projections are the same or similar in both version of the business plan. However, the Petitioner 
made changes to the personnel plan when it revised the business plan in response to the RFE. 
In the initial plan, dated May 2018, the Petitioner indicated that it would hire a marketing manager, 
two sales and marketing clerks, a finance manager, an accountant, an education manager, and four 
teachers, with all employees to be hired by December 2018. The business plan contains a passing 
reference to the Petitioner's "plan to cooperate with" but does not explain the 
terms of its agreement with or the fact that the Petitioner's role in the new Texas 
location appears to be that of an owner and investor, rather than the operator or manager of the 
business. 
The business plan indicated that the Petitioner anticipates $500,000 in "products/services" sales with 
$250,000 in direct costs of sales, $100,000 in "other expenses," and projected net income of $150,000. 
At the same time, the Petitioner indicated that it anticipates paying $400,000 in salaries and wages 
alone during the initial year of operations. The financial plan also indicates that the Petitioner would 
triple its sales in its second year and achieve sales of $2.5 million in its third year. However , the 
business plan does not mention any intended activities beyond investing in one 1000 square foot 
location and it is unclear how the company would grow at the stated rate. 
Although the business plan refers to "monthly pro-forma tables . . included in the appendix ," no 
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Matter of G-P-G- Co. 
appendix or detailed financial information was provided. Further, as noted, under the terms of the 
above-referenced MOU, the Petitioner is to provide with $17,500 per month in 
funding, and in exchange receive 70% of the net profits of the business managed and operated by 
This financial arrangement is not reflected in the Petitioner's financial projections. 
The revised business plan submitted in response to the RFE reflected positions for an operations 
director and an assistant in place of the marketing manager and two sales and marketing assistants, 
and the Petitioner indicated that all positions (including five teachers) would be filled by October 
2018. The Petitioner indicated that it had filled the positions of operations director, accountant, and 
education manager and provided evidence of wages paid to three individuals. However, as already 
noted, the Petitioner's MOU with indicates that would be responsible for 
all of the activities the Petitioner attributed to these new employees and every other activity "except 
for investment." 
Absent some explanation for the inconsistency between the terms of the Petitioner's MOU with 
and the staffing plans outlined in the Petitioner's business plan, we cannot 
determine how the Petitioner will be staffed and structured within one year, and cannot determine 
whether the Petitioner would be able to support an executive position. The Petitioner must resolve 
this ambiguity 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). Neither business plan sufficiently reflects the 
terms of the MOU or explains the departure from those terms. 
In the case of a new office petition, it is reasonable to expect a petitioner to submit a detailed and 
credible business plan that satisfies the evidentiary requirements for new offices and is consistent with 
other evidence in the record and with the petitioner's own statements regarding its anticipated 
development during the first year. Here, the submitted business plan did not contain sufficient relevant 
information, particularly since the Petitioner submitted evidence (specifically, the MOU) that 
conflicted the limited information that the business plan did provide. 
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 l0l(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, and they 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. 
As noted, the Petitioner submitted a broad description of the Beneficiary 's position that does not 
defined her actual proposed duties in sufficient detail. While the Petitioner submitted a business plan 
identifying personnel to be hired in the first year, it is lacking sufficient detail regarding its start-up 
costs, financial projections, operating expenses and other critical information necessary to evaluating 
the feasibility of the plan. Further, we cannot overlook the fact that the Petitioner submitted a signed 
Matter of G-P-G- Co. 
MOU indicating that its role with respect to the intended afterschool educational services business 
would be limited to that of an investor. Therefore, although the projected organizational chart does 
show the Beneficiary at the head of the organizational hierarchy, the Petitioner's assertions regarding 
the Beneficiary's employment capacity and the nature and scope of the business are not adequately 
supported by the evidence in its totality. 
Finally, the Petitioner contends that the Director did not consider the congressional intent in creating 
the L-1 visa category and also points to the current U.S. policy to "Buy American Hire American." 
We note, however, that an immigration benefit cannot be granted to a petitioner that has not established 
that it meets the eligibility requirements for the benefit being sought. 
For the foregoing reasons, the Petitioner did not demonstrate that the Beneficiary would primarily 
engage in executive duties, or that the new office would support an executive position, after the initial 
year of operations. 
III. RESERVED ISSUE 
As the Petitioner has not overcome the Director's adverse determination regarding the Beneficiary's 
proposed U.S. employment, and this issue is dispositive of the appeal, we will reserve the remaining 
issue of whether the Petitioner established that the Beneficiary was employed in a managerial or 
executive capacity abroad. 
However, we will briefly inform the Petitioner of potentially derogatory information regarding the 
Beneficiary's foreign employment which should be addressed in future proceedings. The Petitioner 
claims that its foreign affiliate has employed the Beneficiary as its deputy general manager since 
August 2013. The Beneficiary applied for Bl/B2 and F-1 nonimmigrant visas at the U.S. Consulate 
in Beijing in October 2015 and May 2017. Although she indicated her employment with the 
Petitioner's foreign affiliate on her visa applications, she stated that her position was that of an "office 
worker" on two occasions, and a "financial cashier" on the most recent application. This information, 
if not explained, would tend to undermine the Petitioner's claims that she served as "one of the top 
executives" of the foreign affiliate. 
IV. CONCLUSION 
The appeal will be dismissed for the above stated reasons. In visa petition proceedings, it is the 
petitioner's burden to establish eligibility for the immigration benefit sought. Section 291 of the Act, 
8 U.S.C. § 1361. The Petitioner has not met that burden. 
ORDER: The appeal is dismissed. 
Cite as Matter ofG-P-G- Co., ID# 2941451 (AAO Apr. 11, 2019)