dismissed L-1A Case: Investment Management

U.S. Citizenship 
and Immigration 
Services 
MATTER OFF-USA INC. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: MAR. 27,2018 
APPEAL OF CALIFORNIA SERVICE CENTER DECISION 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a four-employee investment management and advisory firm, seeks to continue the 
Beneficiary's temporary employment as its president and chief executive officer (CEO) under the L­
lA nonimmigrant classification for intracompany transferees. 1 See Immigration and Nationality Act 
(the Act) section 101(a)(15)(L), 8 U.S.C. § 1101(a)(15)(L). The L-1A classification allows a 
corporation or other legal entity (including its affiliate or subsidiary) to transfer a qualifying foreign 
employee to the United States to work temporarily in a managerial or executive capacity. 
The Director of the California Service Center denied the petition, concluding that the record did not 
establish, as required, that the Petitioner will employ the Beneficiary in the United States in a 
managerial or executive capacity. 
The matter is now before us on appeal. In its appeal, the Petitioner asserts that it has met its burden 
of proof, and that the Director erred by arbitrarily finding otherwise. 
Upon de novo review, we will dismiss the appeal. 
I. LEGAL FRAMEWORK 
To establish eligibility for the L-1 A nonimmigrant visa classification, a qualifying organization must 
have employed the beneficiary in a managerial or executive capacity for one continuous year within 
three years preceding the beneficiary's application for admission into the United States. 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. !d. 
1 
The Petitioner previously filed a "new office" petition on the Beneficiary's behalf, approved for the period July 5, 2016 
until June 14, 2017. 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(1)(1 )(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. 
Matter ofF- USA Inc. 
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. DEFINITIONS 
"Managerial capacity" means an assignment within an organization in which the 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, or a department or subdivision of the 
organization; has authority over personnel actions or functions at a senior level within the 
organizational hierarchy or with respect to the function managed; and exercises discretion over the 
day-to-day operations of the activity or function for which the employee has authority. Section 
1 01(a)( 44)(A) of the Act. 
"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) ofthe Act. 
III. EMPLOYMENT IN A MANAGERIAL OR EXECUTIVE CAPACITY 
The Director found that the Petitioner did not establish that it will employ the Beneficiary in a 
managerial or executive capacity. The Petitioner initially stated that it seeks to employ the 
Beneficiary in an executive capacity. On appeal, the Petitioner asserts that the Beneficiary "can 
easily be deemed an executive if not at the very least a manager." We find the Petitioner has not met 
its burden of proof for either type of capacity. 
When examining the managerial or executive capacity of a given beneficiary, we will look to the 
petitioner's description of the job duties. The petitioner's description of the job duties must clearly 
describe the duties to be performed by the beneficiary and indicate whether such duties are in a 
managerial or executive capacity. See 8 C.F.R. § 214.2(1)(3)(ii). Beyond the required description of 
the job duties, U.S. Citizenship and Immigration Services (USCIS) examines 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. 
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Matter ofF- USA Inc. 
Based on the statutory definitions of managerial and executive capacity, the Petitioner must first 
show that the Beneficiary will perform certain high-level responsibilities. Champion World, Inc. v. 
INS, 940 F.2d 1533 (9th Cir. 1991) (unpublished table decision). Second, the Petitioner must prove 
that the Beneficiary will be primarily engaged in managerial or executive duties, as opposed to 
ordinary operational activities alongside the Petitioner's other employees. See Family Inc. v. USCIS, 
469 F.3d 1313, 1316 (9th Cir. 2006); Champion World, 940 F.2d 1533. 
Accordingly, we will discuss evidence regarding the Beneficiary's job duties along with evidence of 
the nature of the Petitioner's business and its staffing levels. 
A. Duties 
The Petitioner provided the following description of the Beneficiary's responsibilities, with the 
approximate time devoted to each (note: inconsistencies in grammar and capitalization have not 
been corrected): 
1. Establish development strategies for the company including presiding over and 
leading the decision-making process for the company in conjunction with the 
Chairwoman of the Board as it relates to important strategic, tactical and staffing 
moves. (35%) 
a. Monitor industry trends, researches state and local markets, establishes 
and adjusts objectives and strategies of the company according to the 
results of this research; 
b. Develops annual and semi-annual work plans to achieve said objectives 
and to implement said strategies; 
c. Establishes company personnel policies and other internal policies and 
procedures; and 
d. Ensure that the company operations are in compliance with both federal 
and state laws and regulations wherever the company conducts business. 
2. Directs and Oversees Implementation of Company Strategies and Work Plans 
(25%) 
a. Direct and oversee the implementation of company strategies and work 
plans, and ensure revenues are on track to meet or exceed company 
expectations; organize regular employee meetings, explaining company 
policies and tactics at such meetings and gathering employee feedback; 
b. Direct, manage and coordinate the daily work activities of department 
leaders and work teams, including giving advice related to market and 
strategy developments, property management, maintenance, safety, etc.; 
c. Keep the Chairwoman apprised of the operational status and work 
progress of the company and sit in on special board meetings where 
needed; and 
d. Regular and consistent review and appraisal of overall performance, 
management effectiveness and financial health of the company. 
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Matter ofF-USA Inc. 
3. Recruit, Hire, Train and Lead Senior Executive and Management Team to Ensure 
Effectiveness of Overall Operations ofthe Company (25%) 
a. Responsible for the hiring and staffing of key management personnel, 
which include other C Level Executives, Department Managers and other 
mid-level cadres; and 
b. Reviews, trains and evaluates performance of key management personnel 
including promotion, disciplinary actions, including termination of 
necessary dependent on the performance of the staffl.] 
4. Public Relations (15%) 
a. Define the company culture, develop plans and oversee implementation of 
plans to promote the company culture; 
b. Define the company brand, set brand development strategies and supervise 
the implementation of brand development strategies; 
c. Oversee, direct and manage the relationship building with outside vendors, 
press and advertising agencies; and 
d. Oversee and direct the company's public relations activities. 
In addition to the above list, the Petitioner listed several pages of additional items under the headings 
"Corporate Strategy and Planning," "Organizational Management," "Financial Management," 
"Human Resources Management," "Marketing and Public Relations," and "Community and Public 
Relationships." 
The record does not establish the extent to which the Beneficiary was able to perform the described 
functions at the time of filing. As we will discuss in more detail further below, as recently as six 
weeks before the filing date the Petitioner apparently had no business income. 
The Director denied the petition, stating that the Petitioner had not provided enough information to 
show that the Beneficiary's day-to-day activities are primarily those of a manager or executive. 
On appeal, the Petitioner asserts that it "provided a lengthy description of the beneficiary's duties" 
and "detailed information on its future corporate strategy and planning, showing that it would be 
able to support and sustain the President and Chief Executive position." The Petitioner also asserts 
that there is no "evidence in the record that contradicts the petitioner's statements." The Petitioner 
asserts that the Beneficiary "can easily be deemed an executive if not at the very least a manager." 
The Petitioner asserts that its claims have not been contradicted; however, we find that they are also 
unsubstantiated to a significant extent. The Petitioner asserted that the Beneficiary would devote 
15% of his time to public relations, with the company marketing its services through a website and 
"news, television and internet media." The record does not establish that the Petitioner has 
established any such media or online presence. Also, the record does not show that the Petitioner 
has hired, or plans to hire, any dedicated marketing staff. Promotional activities undertaken by the 
Beneficiary himself would not constitute managerial or executive duties. 
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Matter ofF- USA Inc. 
Also, the Petitioner claimed that the Beneficiary would spend a substantial amount of time 
establishing and implementing strategies, but the record does not provide much evidence about what 
those strategies are, beyond the basic purpose of the corporation (encouraging Chinese investment in 
U.S. real estate). 
The Petitioner contended that the Beneficiary would "ensure revenues are on track to meet or exceed 
company expectations," but the record does not show that the Beneficiary has done so. The 
company's expectations, as expressed in its business plan, projected first-year revenues of $1 
million. But the Petitioner has not documented any revenue, or revenue-generating business activity 
that would require or justify primarily managerial or executive oversight. 
The Petitioner has not shown that the duties of the Beneficiary's position were primarily managerial 
or executive as of the time of filing. 
B. Staffing 
If staffing levels are used as a factor in determining whether an individual is acting in a managerial 
or executive capacity, 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 101(a)(44)(C) 
ofthe Act. 
The Petitioner's business plan anticipated 12 employees in the first year, including an operations 
vice president, a financial manager, and an administrative manager, but the record does not show 
that the Petitioner had filled those positions at the time of filing. On the petition form, the Petitioner 
specified that it only had four employees in the United States. 
The Petitioner initially stated that the Beneficiary "oversees and directs the act1v1t1es of the 
following C Level Executives as well as the subordinate employees hired at [the petitioning 
company]." The Petitioner then named four employees, thereby indicating that they were the "C 
Level Executives." The Petitioner's organizational chart, however, identified only those four 
employees, with no "subordinate employees" below them: 
CEO [the Beneficiary] 
Chief Investment Officer Chief Operating Officer 
I I 
Investment Analyst Executive Assistant 
Payroll records from the month of filing (June 2017) confirm that the Petitioner had no other 
employees at that time. 
The Beneficiary's multi-page initial job description indicated that he "[w]orked diligently with our 
investment, legal and admin teams in developing the company's budget." The Petitioner did not 
Matter ofF- USA Inc. 
specify which of the above four employees constituted the "investment, legal and admin teams," or 
identify any others who were on those teams. Likewise, the reference to "key management 
personnel, which include other C Level Executives, Department Managers and other mid-level 
cadres" implies a larger staff than what the Petitioner has documented. 
The Petitioner's 2017-2018 business plan included job descriptions for the four subordinates: 
Chief Investment Officer 
Salary: $4,000 monthly 
... [T]he Chief Investment Officer ... oversees the company's investment portfolios 
and reports to the Chief Executive Officer ... on a regular basis. The main 
responsibilities include managing and monitoring investment activities, managing 
pensions, working with external analysts and maintaining good investor relations. 
[He] also develops short-term and long-term investment policies. 
Chief Operating Officer 
Salary: $5,000 monthly 
[The] Chief Operating Officer . . . oversees the company's ongoing operations and 
procedures. [He] is the second-in-command and responsible for the efficiency of 
business. The main responsibilities include regular reporting to the Chief Executive 
Officer (CEO); designing and implementing business strategies, plans, and 
procedures; evaluating performance by analyzing and interpreting data and metrics; 
and participating in expansion activities (investments, acquisitions, corporate 
alliances etc.) 
Investment Analyst 
Salary: $3,300 monthly 
... [T]he Investment Analyst ... works directly with [the] Chief Investment Officer 
... to select specific investments in real estate and other investment opportunities. In 
this role, [he] evaluates both individual investment transactions and broader market 
opportunities. He reports to [the Chief Investment Officer] on a weekly basis. He 
also participates in the due diligence and monitoring of the external investment firms 
through which [the Petitioner's] strategies are generally implemented, and conduct 
research on various companies, properties, and industries within both developed and 
emerging markets. 
Executive Assistant 
Salary: $3,000 monthly 
... [T]he Executive Assistant ... performs administrative duties for our executive 
management team and reports daily to [the Chief Operating Officer]. Her 
responsibilities include screening calls; receiving and replying emails; managing 
calendars; making travel and meeting arrangements; and preparing reports and 
financial data. 
.
Matter ofF-USA Inc. 
A quarterly work summary described some responsibilities of the two higher-ranking subordinates: 
[T]he Chief Investment Officer [is] responsible for Chinese branch office in the 
United States on product investment risk analysis and investment market analysis 
management. Responsible for [the petitioning] company's product design, market 
management , portfolio 
analysis and management. Also, responsible for the 
management and supervision of project risk management investment and 
management of assets. 
The Chief Investment Officer ... is responsible for the analysis of the project location 
background, Office market , the credit rating of the tenants, value projected, rent 
roll, project debt and financing, sales comps condo comps, and sales comps lease 
comps. Working with external analysts and maintaining good investor relations and 
other professional teams, and also assisting [the Beneficiary in] formulating [the 
Petitioner's] short-term and long-term investment policies . 
. . . [T]he Chief Operating Officer ... is responsible for the day-to-day operation of 
[the petitioning company] and regularly reports to [the] CEO . . . . Developing 
financial budgets, controlling operating costs, accounting for the investment return of 
, analyzing profit summary , cost summary , profit 
distribution, and hold profit analysis. Reporting the company's total operating data, 
budget, and summary weekly to [the] CEO . 
. . . Assigned ... to meet with loan 
company , and discuss loan related details. 
The Petitioner's business plan indicated that the company "is primarily targeting at providing 
consultation service to Chinese investors." The Petitioner did not explain which of its employees 
would deal with these customers, and the record does not show that the company had any such 
customers at the time of filing . 
The organizational chart identified five contractors who, by definition, are not "subordinate 
employees." The Petitioner did not fully explain the roles these contractors play for the petitioning 
company, or, in some cases, document the extent of their involvement with the company. The 
contractors ' activity documented in the record largely pertains to helping the Petitioner purchase 
investment properties. 
In the denial notice, the Director noted that the Petitioner's staff is considerably smaller than what 
the business plan projected. The Director also found that the Petitioner had not established that the 
Beneficiary ' s immediate subordinates are primarily managers or executives , but instead appear to 
perform "necessary tasks to provide a service." The Director concluded that the Beneficiary is 
neither a personnel manager nor a function manager. 
Matter ofF- USA Inc. 
The statutory definition of "managerial capacity" allows for both "personnel managers" and 
"function managers." See sections 101(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. The statute plainly states that a "first line supervisor is not considered to be 
acting in a managerial capacity merely by virtue of the supervisor's supervisory duties unless the 
employees supervised are professional." Section 101(a)(44)(A) of the Act; 8 C.F.R. 
§ 214.2(1)(1 )(ii)(B)( 4). If a petitioner claims that a beneficiary directly supervises other employees, 
those subordinate employees must be supervisory, professional, or managerial, and the beneficiary 
must have the authority to hire and fire those employees, or recommend those actions, and take other 
personnel actions. Sections 101(a)(44)(A)(ii)-(iii) ofthe Act; 8 C.F.R. § 214.2(l)(l)(ii)(B)(2)-(3). 
The Petitioner has not specified whether the Beneficiary would be a personnel manager or a function 
manager. As noted above, the Petitioner made no claim of managerial capacity until the appeal, at 
which time the Petitioner asserted, without elaboration, that the Beneficiary qualifies as "at the very 
least a manager." 
To determine whether the Beneficiary manages professional employees, we must evaluate whether 
the subordinate positions require a baccalaureate degree as a minimum for entry into the field of 
endeavor. Cf 8 C.F.R. § 204.5(k)(2) (defining "profession" to mean "any occupation for which a 
United States baccalaureate degree or its foreign equivalent is the minimum requirement for entry 
into the occupation"). Section l 01 (a)(32) of the Act states that "[t]he term profession shall include 
but not be limited to architects, engineers, lawyers, physicians, surgeons, and teachers in elementary 
or secondary schools, colleges, academies, or seminaries." 
In this instance, the Petitioner has asserted that all of the Beneficiary's subordinates hold bachelor's 
or master's degrees, but the Petitioner has not established that the positions require at least a 
bachelor's degree. 
The Petitioner also has not articulated a specific function that the Beneficiary will manage. The term 
"function manager'' applies generally when a beneficiary does not supervise or control the work of a 
subordinate staff but instead is primarily responsible for managing an "essential function" within the 
organization. See section l0l(a)(44)(A)(ii) of the Act. If a petitioner claims that a beneficiary will 
manage an essential function, it must clearly describe the duties to be performed in managing the 
essential function. In addition, the petitioner must demonstrate that "(1) the function is a clearly 
defined activity; (2) the function is 'essential,' i.e., core to the organization; (3) the beneficiary will 
primarily manage, as opposed to perform, the function; ( 4) the beneficiary will act at a senior level 
within the organizational hierarchy or with respect to the function managed; and (5) the beneficiary 
will exercise discretion over the function's day-to-day operations." Matter of G- Inc., Adopted 
Decision 2017-05 (AAO Nov. 8, 2017). In this matter, the Petitioner has not described or provided 
evidence that the Beneficiary manages an essential function. 
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 
Matter ofF- USA Inc. 
organization, and that person's authority to direct the organization. Section 101 (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. Inherent to the definition, the organization must 
generally have a subordinate level of managerial employees for a beneficiary to direct, unless the 
petitioner can demonstrate that beneficiary "directs the management" in some other way. A 
beneficiary must also 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 an 
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." !d. 
The Petitioner asserts that it "provided an organizational chart for the U.S. company, illustrating that 
[the Beneficiary] oversees and directs the activities of four C Level Executives." We acknowledge 
the Petitioner's claim that all four of the Beneficiary's subordinates are executives, but the 
organizational chart is not, on its own, evidence of their executive capacity. The Petitioner has not 
explained how an executive assistant who answers the telephone and schedules meetings is an 
executive; there is no indication that her position meets that standard. Likewise, the investment 
analyst appears to have significant operational-level duties relating to market research and 
transactions. 
The remaining two employees, the chief investment officer and chief operating officer, perform 
higher-level functions, but those functions are vaguely defined. Examples include "managing and 
monitoring investment activities" and "implementing business strategies." Also, most of the 
subordinate positions listed in the business plan remain unfilled, which raises the question of who 
performs the non-executive, non-managerial functions of those lower-level positions. 
On appeal, the Petitioner asserts that it has proven that "the four subordinate employees are on the 
payroll of the Company," and provided "job descriptions of each subordinate employee." The 
Petitioner, however, does not address the key finding that, given the company's minimal staffing, 
"[i]t appears that the Chief Investment Officer and the Chief Operating Officer would have to assist 
their subordinate employees in daily servicing customers and renters of the business." 
A company's size alone, without taking into account the reasonable needs of the organization, may 
not be the determining factor in denying a visa petition for classification as a multinational manager 
or executive. See section 101(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 who would perform the non-managerial or non-executive operations of the 
company. See, e.g.. Family Inc., 469 F.3d 1313; Systronics Corp. v. INS, 153 F. Supp. 2d 7, 15 
(D.D.C. 2001). 
In this case, the issue is not the company's size by itself, but the significant discrepancy between the 
company's projected staffing and what actually existed at the time of filing. The Petitioner has not 
9 
Matter ofF- USA Inc. 
explained who performs the functions of the unfilled positions. If the highest officials perform those 
functions, then they are not primarily managers, executives, or supervisors. If no one performs 
them, then the business is not fully functioning. Either circumstance is disqualifying. 
The Petitioner has not established that it will employ the Beneficiary in a managerial or executive 
capacity. 
IV. DOING BUSINESS 
Beyond the Director's decision, the record reveals another ground for denial of the petition. It 
concerns the question of whether the Petitioner was doing business at the time of filing. "Doing 
business" means the regular, systematic, and continuous provision of goods, services, or both, and 
does not include the mere presence of an agent or office. See 8 C.F.R. § 214.2(1)(1)(ii)(H}. 
The record does not show that the Petitioner was actively doing business when it filed this petition in 
June 2017. This is a disqualifying circumstance. The Petitioner initially filed and was approved for 
a "new office" petition in May 2016. The Petitioner cannot repeatedly categorize the same office as 
a "new office," and it already filed a "new office" petition for this office. A petition to extend the 
validity of a new office petition must include evidence that the United States entity has been doing 
business for the previous year. See 8 C.F.R. § 214.2(1)(14)(ii)(B). Although this petition does not 
seek an extension as such, the Beneficiary's absence from the United States at the time of filing does 
not relieve the Petitioner from having to show that its new office has begun doing business during 
the year covered by the last petition. 
A petitioner must establish eligibility at the time of filing the petition. See 8 C.F.R. § 103.2(b)(1). 
Plans for future business activity are important to the petition, but future plans by themselves cannot 
warrant approval of a new office extension petition; there must also be ongoing business activity, 
beyond the preliminary or start-up stage, at the time of filing. 
In this instance, the Petitioner forecasted $1 million in revenue during its first year of operations, but 
it did not report any income on its 2016 tax return or on a balance sheet prepared on April 30, 2017, 
six weeks before filing the petition on June 14 of that year. The balance sheet also listed over $4 
million in assets, but holding assets does not, by itself, constitute doing business, because ownership 
of assets does not amount to provision of goods or services. Likewise, the purchase of commercial 
real estate for future business use is not, by itself, doing business, because that purchase provides no 
goods or services. It is not an income-generating activity, but rather a preparatory step toward future 
activity in that vein. 
The lack of sufficient evidence to show that the Petitioner has begun doing business is an additional 
ground for denial of the petition. 
10 
Matter ofF- USA Inc. 
V. CONCLUSION 
The Petitioner did not establish that it will employ the Beneficiary in an executive or managerial 
capacity, or that it was doing business at the time it filed the petition. 
ORDER: The appeal is dismissed. 
Cite as Matter ofF-USA Inc., ID# 1129010 (AAO Mar. 27, 2018) 
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