dismissed L-1A Case: Property Investment And Development

U.S. Department of Homeland Security 
20 Massachusetts Ave. N.W. Rm. A3000 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
Services 
PUBLIC COPY 
FILE: SRC 04 208 50576 Office: TEXAS SERVICE CENTER Date: SEP 0 5 20B 
Immigration and Nationality Act, 8 U.S.C. § 1 101 (a)(15)(L) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Office in your case. All documents have been returned 
to the office that originally decided your case. Any further inquiry must be made to that office. 
Robert P. Wiemann, Chief 
Administrative Appeals Office 
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DISCUSSION: The Director, Texas Service Center, denied the petition for a nonirnrnigrant visa. The 
matter is now before the Administrative Appeals Office (AAO) on appeal. The AAO will dismiss the 
appeal. 
The petitioner seeks to employ the beneficiary temporarily in the United States as an L-1A nonimrnigrant 
intracompany transferee pursuant to section 101(a)(15)(L) of the Immigration and Nationality Act (the 
Act), 8 U.S.C. 1101(a)(15)(L). The U.S. petitioner, a corporation organized in the State of Florida that 
is engaged in property investment and development, seeks to employ the beneficiary IQ 01 
manager and chief executive officer. The petitioner claims that it is the subsidiary of 
ocated in Tel Aviv, Israel. 
The director denied the petition concluding that the petitioner did not establish that (1) the beneficiary 
was employed abroad in a primarily managerial or executive position; or (2) the beneficiary would be 
employed in a primarily managerial or executive position within one year of the petition's approval. 
On appeal, counsel for the petitioner provides supplemental evidence, which addresses the director's 
bases for denial, and contends that the petitioner did in fact meet the evidentiary requirements. 
To establish eligibility for the L-1 nonimmigrant visa classification, the petitioner must meet the criteria 
outlined in section 101(a)(15)(L) of the Act. Specifically, a qualifying organization must have employed 
the beneficiary in a qualifying managerial or executive capacity, or in a specialized knowledge capacity, 
for one continuous year within three years preceding the beneficiary's application for admission into the 
United States. 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, 
executive, or specialized knowledge capacity. 
The regulation at 8 C.F.R. § 214.2(1)(3) states that an individual petition filed on Form 1-129 shall be 
accompanied by: 
(i) 
 Evidence that the petitioner and the organization which employed or will employ 
the alien are qualifying organizations as defined in paragraph (l)(l)(ii)(G) of this 
section. 
(ii) 
 Evidence that the alien will be employed in an executive, managerial, or 
specialized knowledge capacity, including a detailed description of the services 
to be performed. 
(iii) 
 Evidence that the alien has at least one continuous year of full time employment 
abroad with a qualifying organization within the three years preceding the filing 
of the petition. 
(iv) 
 Evidence that the alien's prior year of employment abroad was in a position that 
was managerial, executive or involved specialized knowledge and that the alien's 
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prior education, training, and employment qualifies himher to perform the 
intended services in the United States; however, the work in the United States 
need not be the same work which the alien performed abroad. 
(v) 
 If the petition indicates that the beneficiary is coming to the United States as a 
manager or executive to open or to be employed in a new office in the United 
States, the petitioner shall submit evidence that: 
(A) 
 Sufficient physical premises to house the new office have been secured; 
(B) 
 The beneficiary has been employed for one continuous year in the three 
year period preceding the filing of the petition in an executive or 
managerial capacity and that the proposed employment involved executive 
or managerial authority over the new operation; and 
(C) 
 The intended United States operation, within one year of the approval of the 
petition, will support an executive or managerial position as defined in 
paragraphs (I)(l)(ii)(B) or (C) of this section, supported by information 
regarding: 
(I) 
 The proposed nature of the office describing the scope of the entity, 
its organizational structure, and its financial goals; 
(2) 
 The size of the United States investment and the financial ability of 
the foreign entity to remunerate the beneficiary and to commence 
doing business in the United States; and 
(3) 
 The organizational structure of the foreign entity. 
This matter presents two related, but distinct, issues: (1) whether the beneficiary was employed abroad in 
a primarily managerial or executive capacity; and (2) whether the U.S. entity will be able to support the 
beneficiary in a managerial or executive position within one year of the petition's approval. The AAO 
will first address the issue of whether the beneficiary was employed abroad in a qualifying capacity. 
Section 101(a)(44)(A) of the Act, 8 U.S.C. fj 1 101(a)(44)(A), defines the term "managerial capacity" as 
an assignment within an organization in which the employee primarily: 
(i) 
 manages the organization, or a department, subdivision, function, or component 
of the organization; 
(ii) 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; 
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(iii) 
 if another employee or other employees are directly supervised, has the authority 
to hire and fire or recommend those as well as other personnel actions (such as 
promotion and leave authorization), or if no other employee is directly 
supervised, functions at a senior level within the organizational hierarchy or with 
respect to the function managed; and 
(iv) 
 exercises discretion over the day to day operations of the activity or function for 
which the employee has authority. 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)(B) of the Act, 8 U.S.C. $ 1101(a)(44)(B), defines the term "executive capacity" as an 
assignment within an organization in which the employee primarily: 
(i) 
 directs the management of the organization or a major component or function of 
the organization; 
(ii) 
 establishes the goals and policies of the organization, component, or function; 
(iii) 
 exercises wide latitude in discretionary decision making; and 
(iv) 
 receives only general supervision or direction from higher level executives, the 
board of directors, or stockholders of the organization. 
On the L supplement to Form 1-129, the petitioner provided the following general overview of the 
beneficiary's duties in the foreign entity: 
[The beneficiary] is a licensed builder and contractor in Israel. He has worked in the 
field for over 12 years and has owned and operated [the foreign entity] for the past 7 
years. Aside from his many years of experience building, contracting, and property 
investment projects, [the beneficiary's] daily duties include contracting and tendering 
bids for large government, municipal and private corporations, selection, instructing, and 
managing large number of employees (in-house and contracted), purchasing and renting 
equipment according to projects requirement, contracting and working with suppliers and 
sub-contractors, selling, promoting, investing, etc. 
In a letter from the petitioner dated July 6, 2004, the petitioner further stated that the beneficiary would 
manage both companies during the start-up phase of the U.S. company, and that he would travel routinely 
back and forth between the United States and Israel until he was able to hire and train a local manager for 
the U.S. entity. 
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On September 1 1, 2004, the director requested additional evidence with regard to the beneficiary's duties 
abroad. Specifically, the director asked the petitioner to provide a more detailed description of the 
beneficiary's position abroad including all duties and the percentage of time spent on each duty. The 
petitioner was also asked to provide information on the beneficiary's subordinates as well as a brief 
description of their titles and duties. Finally, payroll records to corroborate the claimed employment of 
these persons was requested. In a response dated February 28, 2004, the petitioner, through counsel, 
submitted a letter accompanied by the documentary evidence requested. With regard to the beneficiary's 
duties, counsel confirmed that the beneficiary's title was Company Owner/Contractor/Property 
Investment Developer, and provided the following list of his specific duties: 
Determine staffing requirements and interview, hire, train new employees, or 
oversee those personnel processes. 
Establish and implement policies, goals, objectives, and procedures, 
conferring with owners, municipalities, and staff members as necessary. 
Manage staff, preparing work schedules and assigning specific duties. 
Monitor projects to ensure that they are being executed efficiently and effectively 
while staying within budgetary limits. 
Plan and direct activities such as submitting tenders, meeting with potential 
clients and coordinating with employees, suppliers, and other contractors as 
required. 
Review financial statements, sales and activity reports, and other 
performance data to measure productivity and goal achievement and to 
determine areas needing cost reduction and program improvement. 
Submit tenders, negotiate contracts, meet with municipal engineering and 
building authorization departments. 
Use survey instruments, metering devices, tape measures, and test equipment, 
such as concrete strength measures, to perform inspections. 
Inspect bridges, dams, highways, buildings, wiring, plumbing, electrical circuits, 
sewers, heating systems, and foundations during and after construction. 
Review and interpret plans, blueprints, site layouts, specifications, and 
construction methods. 
Monitor construction sites to ensure adherence to contracting requirements and 
specifications. 
Measure dimensions and verify level, alignment, and elevation of structures and 
fixtures to ensure compliance to building plans and codes. 
Compute estimates of work completed or of needed renovations or upgrades, and 
approve payment for contractors. 
Supervises and coordinates activities of constructions trades workers 
Directs and leads workers engaged in construction activities. 
Assigns work to employees, using material and worker requirements data. 
Confers with staff and worker to ensure production and personnel problems are 
resolved. 
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Examines and inspects work progress, equipment and construction sites to verify 
safety and ensure that specifications are met. 
Estimates material and worker requirements to complete job. 
Reads specifications, such as blueprints and data, to determine construction 
requirements. 
Analyzes and plans installation and construction of equipment and structures. 
Confer with supervisory personnel, owners, contractors, and design professionals 
to discuss and resolve matters such as work procedures, complaints, and 
construction problems. 
Determine labor requirements and dispatch workers to construction sites. 
Direct and supervise workers. 
Interpret and explain plans and contract terms to administrative staff, workers, 
and clients, representing the owner or developer. 
Plan, organize, and direct activities concerned with the construction and 
maintenance of structures, facilities, and systems. 
Prepare and submit budget estimates and progress and cost tracking reports. 
Schedule the project in logical steps and budget time required to meet deadlines. 
Select, contract, and oversee workers who complete specific pieces of the project, 
such as painting or plumbing. 
Study job specifications to determine appropriate construction methods. 
The above duties, highlighted in bold text, are the duties the petitioner claims that the beneficiary 
performs every day. The remaining duties are performed per project, andlor as necessary. 
The response to the request for evidence further indicated that the beneficiary oversaw "four salaried 
employees" and 10-20 "outsourced contractors and day workers." 
On December 14, 2004 the director denied the petition. The director determined that the evidence in the 
record did not establish that the beneficiary was employed abroad in a primarily managerial or executive 
capacity as defined by the regulations. Specifically, the director found that the duties of the beneficiary 
did not appear to be primarily qualifying duties, and that the beneficiary's alleged subordinate staff was 
not documented in the record. The director concluded that the beneficiary was primarily performing tasks 
necessary to the viability of the business abroad, and thus he was not a qualified manager or executive. 
On appeal, counsel contends that the petitioner provided the necessary evidence to show the qualifications 
of the beneficiary, and claims that the newly submitted evidence proves that the beneficiary oversaw a 
subordinate staff of professionals in order to qualify as a manager. 
The AAO, upon review of the record of proceeding, concurs with the director's finding. When examining 
the executive or managerial capacity of the beneficiary, the AAO will look first to the petitioner's 
description of the job duties. See 8 C.F.R. § 214,2(1)(3)(ii). 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 
either in an executive or managerial capacity. Id. 
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The initial description of duties provided by the petitioner in these proceedings did little to describe the 
beneficiary's actual duties, nor did it describe the nature of the beneficiary's day-to-day tasks. Instead, it 
merely provided a vague overview of the nature of his duties. As previously stated, the initial evidence 
submitted was insufficient to warrant approval, and consequently, the director requested more specific 
information, including a more specific description of the beneficiary's duties. The petitioner responded to 
this request, and in addition to describing the beneficiary's duties in further detail, the petitioner claimed 
that the beneficiary oversaw both salaried employees and contractors. 
The AAO, upon review of the record of proceeding, concurs with the director's finding that the petitioner 
has not established that the beneficiary will be employed in either a primarily managerial or executive 
capacity. Whether the beneficiary is a managerial or executive employee turns on whether the petitioner 
has sustained its burden of proving that his duties are "primarily" managerial or executive. See sections 
101(a)(44)(A) and (B) of the Act. Here, the petitioner fails to document what proportion of the 
beneficiary's duties would be managerial functions and what proportion would be non-managerial. The 
petitioner lists the beneficiary's duties as including both managerial and administrative or operational 
tasks, but fails to quantify the time the beneficiary spends on them. More specifically, although the 
petitioner clarified that certain tasks were performed "every day," while others were performed "per 
project" or "as needed," the AAO is unable to determine exactly how often the beneficiary devotes his 
time to one group of tasks over another. This failure of documentation is important because many of the 
beneficiary's identified duties, such as "examines and inspects work progress, equipment and construction 
sites to verify safety and ensure that specifications are met," "reads specifications, such as blueprints and 
data, to determine construction requirements," and "measure[s] dimensions and verify level, alignment, 
and elevation of structures and fixtures to ensure compliance to building plans and codes" do not fall 
directly under traditional managerial duties as defined in the statute. For this reason, the AAO cannot 
determine whether the beneficiary is primarily performing the duties of a function manager. See IKEA 
US, Inc. v. U.S. Dept. of Justice, 48 F. Supp. 2d 22,24 (D.D.C. 1999). 
These duties indicate that the beneficiary plays an active role in visiting and overseeing site projects and 
the work that is constructed on these sites. While the beneficiary failed to clarify how often projects are 
undertaken, is can logically be presumed, since the petitioner's business is a property development 
business, is that projects are almost constantly being performed under contractual obligations. As a 
result, it seems evident from the description of duties provided that the beneficiary will engage in direct 
supervision of the projects, including actively ensuring that the project complies with building codes and 
other such requirements. Since the petitioner clearly states that the beneficiary is a licensed builder and 
contractor with over 12 years of experience, it appears that the beneficiary primarily plays an active role 
in these projects. An employee who primarily performs the tasks necessary to produce a product or to 
provide services is not considered to be employed in a managerial or executive capacity. Matter of 
Church Scientology International, 19 I&N Dec. 593, 604 (Comm. 1988). 
Furthermore, the petitioner has failed to show that the beneficiary has sufficient subordinate staff to 
relieve him from performing an active role in project management. While the petitioner, in response to 
the request for evidence, asserted that the beneficiary oversees four employees and multiple contractors, 
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the evidence in the record does not corroborate this claim. For example, the payroll documentation 
submitted indicates that only two employees were retained by the petitioner for the entire year of 2003, 
with two other employees only working a partial year. The claim with regard to contracted employees is 
likewise unclear. 
Although the beneficiary is not required to supervise personnel, if it is claimed that his duties involve 
supervising employees, the petitioner must establish that the subordinate employees are supervisory, 
professional, or managerial. See 9 101(a)(44)(A)(ii) of the Act. In this matter, since the petitioner claims 
that the beneficiary "direct[s] and supervise[s] workers" daily, the petitioner must satisfy this criteria. 
Though requested by the director, the petitioner did not provide any details with regard to the duties of the 
beneficiary's alleged subordinates, nor is it clear whether an advanced degree is necessary to perform 
such duties. Any failure to submit requested evidence that precludes a material line of inquiry shall be 
grounds for denying the petition. 8 C.F.R. 103.2(b)(14). Thus, the petitioner has not established that 
these employees possess or require an advanced degree, such that they could be classified as 
professionals. Nor has the petitioner shown that any of these employees supervise subordinate staff 
members or manage a clearly defined department or function of the petitioner, such that they could be 
classified as managers or supervisors. Thus, the petitioner has not shown that the beneficiary's 
subordinate employees are supervisory, professional, or managerial, as required by section 
lOl(a)(44)(A)(ii) of the Act. 
On appeal, counsel submits additional details for the first time with regard to the contracted employees 
allegedly working under the beneficiary's supervision. Despite the director's specific request in the 
request for evidence, this documentation was not submitted prior to adjudication. The petitioner was put 
on notice of required evidence and given a reasonable opportunity to provide it for the record before the 
visa petition was adjudicated. The petitioner failed to submit the requested evidence and now submits it 
on appeal. However, the AAO will not consider this evidence for any purpose. See Matter of Soriano, 19 
I&N Dec. 764 (BIA 1988); Matter of Obaigbena, 19 I&N Dec. 533 (BIA 1988). The appeal will be 
adjudicated based on the record of proceeding before the director. 
The petitioner, therefore, has failed to establish that the beneficiary is employed abroad in a primarily 
managerial or executive capacity. For this reason, the petition may not be approved. 
The second issue on appeal is whether the U.S. entity will be able to support the beneficiary in a 
managerial or executive position within one year after the petition's approval. The director found the 
initial evidence with the petition to be insufficient to establish that this requirement could be met at the 
end of the first year of operations. Therefore, in the request for evidence previously discussed, the 
director requested additional documentation regarding the petitioner's business plan, its leased premises, 
and the proposed duties of the beneficiary in the United States. In response, the petitioner stated that the 
beneficiary's proposed duties in Florida would consist of opening the U.S. office, surveying sites and 
property for investment, hiring staff, and developing projects. The petitioner further indicated that the 
beneficiary would divide his time between Israel and the United States. Finally, as evidence of physical 
SRC 04 208 50576 
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premises to house the new office, the petitioner submitted evidence of the purchase of a single family 
home by the beneficiary in the State of Florida. 
The director denied the petition, noting that no commercial premises had been secured for the petitioner's 
proposed business. Counsel on appeal asserts that in this "age of advanced telecommunications 
technologies" millions of businesses are conducted from residential homes, and that the petitioner's 
fledgling business should be no exception. The AAO disagrees. 
The petitioner has failed to establish that it will be able to support the beneficiary in a capacity that is 
primarily managerial or executive at the end of the first year of operations. Specifically, the petitioner has 
provided a vague description of the beneficiary's proposed duties in the United States, contends that he 
will split his time between the U.S. and Israel, and that he will conduct this business out of his newly 
acquired residential property. In addition, the AAO notes that the petitioner failed to submit a 
comprehensive business plan, thereby suggesting that the beneficiary, as the alleged owner of both 
companies, is merely seeking entry into the U.S. for personal reasons and not to truly establish a 
legitimate business. While an authorization to transact business in the State of Florida is certainly a start, 
without further steps to show the intended result after a year of operations, the AAO cannot conclude that 
a legitimate business will exist to support a managerial or executive position. 
As contemplated by the regulations, a comprehensive business plan should contain, at a minimum, a 
description of the business, its products and/or services, and its objectives. See Matter of Ho, 22 I&N 
Dec. 206, 213 (Assoc. Comm. 1998). Although the precedent relates to the regulatory requirements for 
the alien entrepreneur immigrant visa classification, Matter of Ho is instructive as to the contents of an 
acceptable business plan: 
The plan should contain a market analysis, including the names of competing businesses 
and their relative strengths and weaknesses, a comparison of the competition's products and 
pricing structures, and a description of the target marketlprospective customers of the new 
commercial enterprise. The plan should list the required permits and licenses obtained. If 
applicable, it should describe the manufacturing or production process, the materials 
required, and the supply sources. The plan should detail any contracts executed for the 
supply of materials and/or the distribution of products. It should discuss the marketing 
strategy of the business, including pricing, advertising, and servicing. The plan should set 
forth the business's staffing requirements and contain a timetable for hiring, as well as a job 
description for all positions. It should contain sales, cost, and income projections and detail 
the bases therefor. Most importantly, the business plan must be credible. 
Id. 
The petitioner has submitted nothing that conforms even loosely to a business plan. This deficiency in 
the record, coupled with the vague job description of the beneficiary, indicates that the petitioner will not 
be able to support a managerial or executive position at the end of the first year of operations. On appeal, 
counsel suggests that the petitioner's infancy should be considered when assessing the beneficiary's active 
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role in the performance of company duties, and his intention to start up the company from his U.S. residence. 
The AAO disagrees. 
When a new business is established and commences operations, the regulations recognize that a 
designated manager or executive responsible for setting up operations will be engaged in a variety of 
activities not normally performed by employees at the executive or managerial level and that often the 
full range of managerial responsibility cannot be performed. In order to qualify for L-1 nonimmigrant 
classification during the first year of operations, the regulations require the petitioner to disclose the 
business plans and the size of the United States investment, and thereby 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. 4 214.2(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. On review, the record as presently constituted is not persuasive in demonstrating that 
the beneficiary will be employed in a primarily managerial or executive capacity, or that the petitioner 
will grow to the point where it will require the services of a full-time manager or executive at the end of 
its first year of operations. 
Specifically, the petitioner has failed to establish that it has secured sufficient physical premises to house the 
new business, as required by the regulation at 8 C.F.R. 4 2 14.2(1)(3)(v)(A). Additionally, the petitioner has 
failed to show that the beneficiary has been employed for one continuous year in the three year period 
preceding the filing of the petition in an executive or managerial capacity and that the proposed employment 
involved executive or managerial authority over the new operation, as required by 8 C.F.R. 4 
214.2(1)(3)(v)(A). The petitioner, therefore, has not shown, by way of a comprehensive business plan and 
clear description of the beneficiary's proposed duties, that it will reach the point that it can employ the 
beneficiary in a predominantly managerial or executive position at the end of the first year. For this 
additional reason, the petition may not be approved. 
Beyond the decision of the director, the minimal documentation of the foreign entity's and the petitioner's 
ownership raises the issue of whether there is a qualifying relationship between and U.S. entity and a 
foreign entity pursuant to 8 C.F.R. 3 214.2(1)(l)(ii)(G). While the petitioner claims that the beneficiary 
owns both companies, no corroborating evidence has been submitted to support this contention. Going on 
record without supporting documentary evidence is not sufficient for purposes of meeting the burden of 
proof in these proceedings. Matter of Soffici, 22 I&N Dec. 158, 165 (Comrn. 1998) (citing Matter of 
Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm. 1972)). For this additional reason, the 
petition may not be approved. 
In addition, the petitioner indicates that the beneficiary is the sole owner of both companies. If this fact is 
established, it remains to be determined that the beneficiary's services are for a temporary period. The 
regulation at 8 C.F.R. 4 214.2(1)(3)(vii) states that if the beneficiary is an owner or major stockholder of 
the company, the petition must be accompanied by evidence that the beneficiary's services are to be used 
for a temporary period and that the beneficiary will be transferred to an assignment abroad upon the 
completion of the temporary services in the United States. In the absence of persuasive evidence, and 
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particularly since the record contains evidence of the beneficiary's purchase of a single family home in 
Florida, it cannot be concluded that the beneficiary's services are to be used temporarily or that he will be 
transferred to an assignment abroad upon completion of his services in the United States. 
When the AAO denies a petition on multiple alternative grounds, a plaintiff can succeed on a challenge 
only if she shows that the AAO abused it discretion with respect to all of the AAO's enumerated grounds. 
See Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 2001), affd, 345 
F.3d 683 (9th Cir. 2003). 
The petition will be denied for the above stated reasons, with each considered as an independent and 
alternative basis for denial. In visa petition proceedings, the burden of proving eligibility for the benefit 
sought remains entirely with the petitioner. Section 291 of the Act, 8 U.S.C. $ 1361. Here, that burden 
has not been met. 
ORDER: The appeal is dismissed.