dismissed L-1A Case: Geophysical Services

U.S. Citizenship 
and Immigration 
Services 
MATTER OF B-USA, LLC 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: NOV. 20. 2017 
APPEAL OF CALIFORNIA SERVICE CENTER DECISION 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a company engaged in ''geophysical well logging and drilling for groundwater 
acquisition,'' seeks to temporarily employ the Beneficiary as the general manager of its new office 1 
under the L-1 A 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 atliliate 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 Petitioner did 
not establish, as required, that the new office would suppm1 a managerial or executive position within 
one year of approval of the petition. 
On appeal, the Petitioner asserts that it satisfied all evidentiary requirements for a new office petition 
and argues that the Director erred by focusing on whether the Beneficiary would be employed in a 
managerial capacity. The Petitioner contends that it submitted sufficient evidence to show that he 
would be employed in an executive capacity and that the company would support an executive 
position within one year. 
Upon de novo review, we will dismiss the appeal. 
I. LEGAL FRAMEWORK 
To establish eligibility for the L-lA nonimmigrant visa classification for a new oftice. 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 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) of the 
Act. The petitioner must also establish that the beneficiary"s prior education. training, and 
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(1)(1)(ii)(F). 
Matter (?f B- USA, LLC 
employment qualifies him or her to perform the intended services in the United States. 8 C.F.R. 
§ 214.2(1)(3). 
If the Form 1-129, Petition for a Nonimmigrant Worker. indicates that a beneficiary is coming to the 
United States in L-1 A status to open or to be employed in a new office, the petitioner must submit 
evidence to demonstrate that the new otlice 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 ;.;eneral(v. 
8 C.F.R. § 214.2(l)(3)(v). 
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. 
II. U.S. EMPLOYMENT IN AN EXECUTIVE CAPACITY 
The Director determined that the Petitioner did not establish that its new office would be able to 
support a managerial or executive position within one year of approval of the petition. However. the 
Director's analysis was focused on the definition of"'managerial capacity" at section 101(a)(44)(A) 
of the Act. The Director acknowledged the Beneficiary's job description. but found that the 
Petitioner's business and hiring plans indicated that the Beneficiary would be a first-line supervisor 
of two non-professional employees within one year. and would not he performing primarily 
managerial duties. Finally, the Director found that the Petitioner's description of the proposed 
business lacked sufficient detail. 
On appeal, the Petitioner asserts that, although it submitted evidence intended to shmv that the 
Beneficiary's subordinates are professionals, it never claimed that it would employ the Beneficiary 
in a managerial capacity. The Petitioner contends that the Director erred by not considering whether 
the Beneficiary would be employed in an executive capacity within one year. In addition. the 
Petitioner objects to the Director's finding that it did not sufficiently describe the proposed business. 
noting that it submitted a 39-page business plan as well as 500 pages of documentation in support of 
the petition. 
In the case of a new office petition, we review the beneficiary's proposed job duties, the petitioner's 
business and hiring plans, and evidence that the business will grow sufticicntly 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 
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Matter of B-USA. LLC 
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 is a subsidiary of a Colombian company that conducts studies to locate groundwater 
sources, drills and constructs wells, and installs pumping systems powered by solar energy. The 
Petitioner indicates that its new U.S. oftice was established to establish a customer base for these 
services in North America, to more efliciently interface with vendors located in the United States. to 
export solar panels and other equipment used in its pumping systems. and to create an educational 
training facility. The Petitioner stated that the Beneficiary's duties as chief executive ofticer will he 
the same as those he currently performs as the foreign entity's managing director. and will include: 
1. Responsible for the full operation of the company, including the following: 
a. Annual budget and yearly performance ( 10% ); 
b. Formulation and execution of business strategy ( 15% ): 
c. Establish goals for the organization (5%): 
d. Develop the company and introduce the company's brand and products into 
the U.S. industry to further its expansion ( 1 0%); 
e. Hire professional employees to manage the company effectively and 
etliciently ( 5% ); 
f. Planning for new product development ( 1 0% ); 
g. Marketing, advertising and branch promotion ( 1 0% ): 
h. Identify logistical needs for new and existing clients (5%): 
1. Coordinate with Board of Directors in Colombia to establish general business 
and planning strategies (15%): 
J. Work towards expanding the organization by opening a branch office in U.S. 
(10%): and 
2. Such other related duties and responsibilities as assigned (5%). 
The Petitioner emphasized that the Beneficiary's position is in an executive capacity as he will direct 
the organization as a whole, establish its goals and policies, exercise wide latitude in discretionary 
decision-making, and receive only general supervision from the board of directors. 
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 10 I (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'' ofthat organization. Further, a beneficiary must primarily focus on the broad 
goals and policies of the organization rather than the day-to-day operations of the enterprise. An 
individual will not be deemed an executive under the statute simply because they have an executive 
title or because they "direct" the enterprise as the owner or sole managerial employee. A beneficiary 
must also exercise ''wide latitude in discretionary decision making" and receive only "general 
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Matter of B- USA. LLC 
supervision or direction from higher level executives, the board of directors, or stockholders of the 
organization." !d. 
The brief job description provided by the Petitioner establishes the Beneficiary's authority to oversee 
the business, but it also indicates he would be involved in product development, marketing, 
promotion, and logistics-related tasks that are not executive in nature. Other portions of the 
description are vague and merely paraphrase the statutory definition of "executive capacity ... 
Conclusory assertions regarding the Beneficiary's employment capacity are not sufficient. Merely 
repeating the language of the statute or regulations does not satisfy the Petitioner's burden of proof. 
Fedin Bros. Co .. Ltd. v. Sava, 724 F. Supp. 1103, 1108 (E.D.N.Y. 1989), of(c/, 905 F. 2d 41 (2d. Cir. 
1990); Avyr Assocs .. Inc. v. Meissner, 1997 WL 188942 at *5 (S.D.N.Y.). 
Further, the Petitioner's claim that the Beneficiary will perform the same duties as the head of the 
Petitioner's three-person new office that he performed abroad as the managing director of an 
established company with at least 12 employees is not persuasive. The Petitioner indicates that it 
will be conducting groundwater surveys, providing training, drilling wells powered by solar pump 
systems, and exporting equipment. This is a broader range of activities than the foreign entity 
engages in and, as discussed further below, the Petitioner has not explained who would actually 
provide the company's services. The Beneficiary is a civil engineer with industry training and 
appears to be the only proposed employee qualified to do so. 
Finally, the position description alone is insufficient to establish that a beneficiary's duties would be 
primarily in an executive capacity, particularly in the case of a new oftice petition where much is 
dependent on factors such as a petitioner's business and hiring plans and evidence that the business 
will grow sufficiently to support a beneficiary in the proposed position. See general!}·. 8 C.F.R. 
§ 214.2(1)(3)(v)(C). 
B. Business Plan and Projected Staffing 
The Petitioner provided a business plan explaining the scope of its intended operations, its hiring 
plans, and its financial projections for the first five years of operations. The Petitioner intends to 
convert existing wells to solar technology, work with businesses to find new sources of groundwater. 
launch a training facility offering certification courses in this field, and export solar panels and other 
equipment. The Petitioner indicated that it will need to obtain licenses in order to drill wells. but 
expects to do so within one year. 
According to the company's revenue forecast, it anticipates $540,000 in gross sales during its initial 
year of operations, including $200,000 from "training," $295,000 from sales of equipment (solar 
panels, solar pumps, inverters), $15,000 from drilling wells, and $30,000 from "geophysical records 
of wells." 
The Petitioner stated that it has already hired a full-time administrator and a full-time sales 
representative and it does not anticipate hiring additional staff during the first year, but will add two 
additional sales representatives by its fourth year. The Petitioner's financial projections show 
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Matter of B-USA, LLC 
$2,000 in monthly contractor expenses but it has not identified the number or types of contractors it 
intends to use or the nature or scope of their services. 
The Petitioner stated that the administrator will "'plan. direct and coordinate the administrative 
functions of the company" and "recruit, interview and hire new employees." Although the Petitioner 
compared the position to that of a human resources manager. the Petitioner did not explain why a 
company that intends to hire two additional employees in the next four years would require a full­
time manager for this function. particularly given the Petitioner's claim that the Beneficiary will be 
recruiting staff. Further, the Petitioner states this employee will "'direcC administrative functions. 
but, because there are no anticipated reports. it appears that she wi II in fact perform the company's 
administrative duties. 
The "sales representative" is in charge of overseeing marketing. setting sales goals. and reporting 
sales quotas and marketing plans to the Beneficiary. However. despite claims that this employee 
would perform higher-level sales and marketing duties, the Petitioner did not identify anyone who 
would perform routine sales and marketing that are typical of a sales representative position. 
The Petitioner did not identify current or proposed employees who would be responsible for 
providing the company's groundwater sourcing, drilling, solar systems implementation, or training 
services, nor did it expressly indicate that the Beneficiary or his subordinates would be handling the 
direct sales and export of solar panels and other equipment. Neither of the subordinates. based on 
their biographies in the Petitioner's business plan, has the educational or professional background to 
perform most of these activities, while the Beneficiary is a civil engineer with the requisite training 
and experience to do so. Therefore. it is reasonable to believe that he will be the one primarily 
responsible for carrying out the company's day-to-day operational tasks. with some administrative 
and sales support from his two staff. 
A company's size alone may not be the determining factor in denying an L-1 A visa petition without 
taking into account the reasonable needs of the organization. See section I 0 I (a)( 44 )(C) of the Act. 
However, it is appropriate for USCIS to consider the size of the petitioning company in conjunction 
with other relevant factors, such as the absence of employees \vho would perform the non­
managerial or non-executive operations of the company. Family Inc. \'. [Jc'·-,'( 'IS. 469 F.3d 1313 (9th 
Cir. 2006); Systronics Corp. v. INS. 153 F. Supp. 2d 7. 15 (D.D.C. 2001 ). 
Here, the Petitioner's description of the Beneficiary's duties. considered in light of the Petitioner's 
staffing and business plans, does not establish that he would perform primarily executive duties 
within one year. Even though the Beneficiary would hold the senior position within the 
organization, the fact that the Beneficiary will manage or direct a business does not necessarily 
establish eligibility for classification as an intracompany transferee in an executive capacity. By 
statute, eligibility for this classification requires that the duties of a position be '"primarily" executive 
in nature. Sections 101(A)(44)(B) ofthe Act. Based on the nature of the business and its projected 
structure, it is more likely than not that the Beneficiary would primarily perform non-executive tasks 
necessary for the day-to-day operation of the business. 
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Matter of B-USA. LLC 
Accordingly, the Petitioner has not demonstrated that the new office would support a managerial or 
executive position, after the initial year of operations. 
III. CONCLUSION 
The Petitioner has not established that it will employ the Beneficiary in an executive capacity within 
one year. 
ORDER: The appeal is dismissed. 
Cite as Matter ofB-USA. LLC, 10# 795355 (AAO Nov. 20, 2017)