dismissed L-1A Case: Property Management

MATTER OF P-I- INC. 
APPEAL OF VERMONT SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: APR. 25,2017 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, which owns rental vacation properties, seeks to extend the Beneficiary's temporary 
employment as president 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)(l5)(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 Vermont 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 an 
executive capacity. 
On appeal, the Petitioner states that the Director erred by not fully considering the evidence. The 
Petitioner stated that it would submit a brief, additional evidence, or both, within 30 days, but the 
record contains no supplement to the appeal. We consider the record complete as it now stands. 
Upon de novo review, we will dismiss the appeal. 
I. LEGAL FRAMEWORK 
To establish eligibility for the L-1 nonimmigrant visa classification, a qualifying organization must 
have employed the Beneficiary in a managerial or executive capacity, or in a 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. Section 101(a)(15)(L) of the 
Act. 
An individual petition filed on Form I-129, Petition for a Nonimmigrant Worker, must include 
evidence that the petitioner will employ the beneficiary in an executive or managerial capacity, or in 
a position requiring specialized knowledge, including a detailed description of the services to be 
performed. 8 C.F.R. § 214.2(1)(3)(ii). 
Matter of P-1- Inc. 
An L-1A nonimmigrant visa petition that involved the opening of a new office may be extended by 
filing a new Form I -129, accompanied by a statement of the duties performed by the beneficiary for 
the previous year and the duties the beneficiary will perform under the extended petition, and the 
staffing of the new operation, including the number of employees and types of positions held 
accompanied by evidence ofwages paid to employees. 8 C.F.R. § 214.2(1)(14)(ii)(C) and (D). 
II. EMPLOYMENT IN AN EXECUTIVE CAP A CITY 
The Director found that the Petitioner has not established that it will employ the Beneficiary in an 
executive capacity. The Petitioner did not claim the Beneficiary would serve in a managerial 
capacity. On appeal, the Petitioner states: "The Director erred in focusing its [sic] finding solely on 
the number of employees without considering the other evidence [in] the record." We disagree, 
because the Director cited other factors besides staffing in the denial notice. 
The statute defines an "executive capacity" 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 101(a)(44)(B) ofthe Act. 
If staffing levels are used as a factor in determining whether an individual is acting in a managerial 
or executive capacity, U.S. Citizenship and Immigration Services (USCIS) must take into account 
the reasonable needs of the organization, in light of the overall purpose and stage of development of 
the organization. See section 1 01 (a)( 44 )(C) of the Act. 
A. Duties 
' When examining the executive capacity of the Beneficiary, we will look first 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). 
Consistent with the statutory definition of 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 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. 
In an introductory letter, signed by the Beneficiary, the Petitioner stated that the Beneficiary's 
"primary responsibilities as President will be to continue to:" 
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Matter of P-1- Inc. 
• Supervise the General Manager; 
• Manage the financial and economic activity of the company to ensure 
performance of the tasks imposed on the company and arrange operation and 
efficient interaction of all subordinate departments; 
• Ensure compliance with applicable laws and licensing requirements; 
• Determine staffing requirements, and interview, hire and train new employees, or 
oversee subordinate managers in the personnel processes. 
• Complete performance evaluations of subordinate managers; 
• Establish and implement departmental policies, goals, objectives, and procedures, 
conferring with board members, organization officials, and subordinate managers 
as necessary. 
• Identify opportunities, assess feasibility and make recommendations on new 
investments or the development of new businesses, aiming at ensuring a proper 
return to shareholders and safeguard the safety of the company's assets; 
• Review financial statements, sales and activity reports, and other performance 
data prepared by Administrative department to measure productivity and goal 
achievement and to determine areas needing cost reduction and program 
improvement. 
• Represent management and the company in its entirety, in resolving any issues 
related to finances, economic and business activity ofthe company[.] 
The above job duties resemble a template more than a description specifically tailored to the 
Beneficiary's position within the petitioning company. The Petitioner has not shown that it has 
"subordinate departments" including an "Administrative department," or multiple "subordinate 
managers." The description also refers to multiple "shareholders," although the Beneficiary is the 
sole owner of the company. Similarly, it states that the Beneficiary will "confer[] with board 
members," indicating that there are at least two board members other than the Beneficiary himself, 
but the Petitioner's articles of incorporation name the Beneficiary as one of only two directors. 
In a request for evidence (RFE), the Director asked for a more detailed statement describing "the 
beneficiary's typical executive duties, and the percentage oftime to be spent on each." In response, 
the Petitioner submitted the following description: 
• Direct the growth of the company, mainly through careful analysis of sales and 
marketing policies (15%); 
• Development and implementation of strategies designed to boost the company's 
market position (10%); 
• Search and evaluation of new business opportunities including development of car 
wash and purchases of new rental properties (10%); 
• Meet with vendors and determine best products to acquire for convenience store 
(5%); 
• Set prices to increase profit margins (1 0% ); 
• Evaluate business procedures and direct operational activities (35%); 
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Matter of P-I- Inc. 
• Oversee company's long-term business vision, which includes overall purpose of 
the company and its long-term business plan (10%); and 
• Identify and hire subordinate staff to manage day-to-day functions (5%). 
With respect to the newer description, the Petitioner did not explain the difference between 
developing strategies and overseeing the business plan. The Petitioner stated that the Beneficiary 
would an·alyze sales and marketing policies, but did not say who would formulate those policies. 
The second description is broadly similar to the first version, but both descriptions consist mostly of 
broad responsibilities rather than specific, identifiable tasks. Specifics are clearly an important 
indication of whether a beneficiary's duties are primarily executive or managerial in nature, 
otherwise meeting the definitions would simply be a matter of reiterating the regulations. Fedin 
Bros. Co., Ltd. v. Sava, 724 F. Supp. 1103, 1108 (E.D.N.Y. 1989), qff'd, 905 F.2d 41 (2d. Cir. 1990). 
The actual duties themselves reveal the true nature of the employment. !d. 
B. Nature and Scope of Business Activities 
The Director's discussion of the Beneficiary's position focused on the nature and .extent of the 
Petitioner's business activity at the time of filing. The Beneficiary had previously entered the United 
States through the approval of a new office petition. A petition involving a new office must 
demonstrate that the intended United States operation will support an executive or managerial 
position within one year of the approval of the petition. 8 C.F.R. § 214.2(1)(3)(v)(C). There is no 
provision in USCIS regulations allowing for an extension of this one-year period. If the business 
does not have the necessary staffing after one year to sufficiently relieve the Beneficiary from 
performing operational and administrative tasks, the Petitioner is ineligible for an extension. USCIS 
approved the new office petition in June 2015, 11 months before the filing of the present petition. 
The Petitioner stated: "Operations are well under way and include substantial investment into a 
vacation rental business. The company currently owns and manages two vacation rental properties." 
An index submitted with the petition described exhibit 18 as "Two Rental Properties Owned by [the 
Petitioner] currently used as Vacation Rentals." Exhibit 18 is a promotional flier depicting two 
properties. The Beneficiary's name and contact information are at the bottom of the flier, indicating 
that interested parties would contact the Beneficiary directly. 
The Petitioner also stated: "Once the operations of the office are fully established it is 
planned to have [the Beneficiary] return to Brazil to resume employment with our affiliate .... We 
contemplate that a minimum five years assignment will be necessary here in the United States." 
In the RFE, the Director stated that the passage quoted above appears to indicate that the Petitioner 
will not be "fully established" for at least five years. The Director asked the Petitioner for evidence 
to show "that the new operations have moved away from the developmental stage to full operation 
where there would be an actual 
need for a qualifying executive capacity position." 
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Matter of P-1- Inc. 
In response, the Petitioner stated that it was planning to purchase a car wash, that it entered into a 
contract to buy a gas station and convenience store on June 16, 2016, and that the Beneficiary "is 
putting a team in place under his executive direction to manage and operate the facility." 
As the Director stated in the denial notice , the Petitioner did not own or operate a convenience store 
or gas station at the time it filed the petition in May 2016, or at the time the initial new office petition 
expired on June 7, 2016. The Petitioner must establish eligibility at the time of filing the 
nonimmigrant visa petition and must continue to be eligible for the benefit through adjudication. 
8 C.F.R. § 103.2(b)(1). A visa petition may not be approved at a future date after a petitioner or 
beneficiary becomes eligible under a new set of facts. See Matter of Michelin Tire Corp., 17 I&N 
Dec. 248, 249 (Reg'l Comm'r 1978). 
In the RFE, the Director asked for evidence that the Petitioner "has been doing business for 
approximately one year at the time of filing, as required." The Petitioner ' s response included copies 
of invoices issued since June 2015 for two rental properties in The Petitioner billed 
for one property , and for the other. The latter property is located within 
itself. The Petitioner has not submitted copies of contracts , service agreements , 
or other documentation to show the roles and play with regard to 
renting the properties and providing services to tenants. 
Also with regard to providing services to tenants, all of the Petitioner's claimed employees , 
including the Beneficiary , live in or near Florida, more than 200 miles south of As 
discussed in more detail below, the Beneficiary 's subordinate employees purport to have duties, such 
as inspection and maintenance , that would require them to be onsite at the properties . 
Given the distance between the two cities, it is not realistic for employees based in to have 
routine job responsibilities in 
A petitioner filing for a new office must show that it has secured sufficient physical premises to 
house the new office. 8 C.F.R. § 214.2(1)(3)(v)(A). We observe that the "physical premises" 
requirement that applies to new offices serves as a safeguard to ensure that a newly established 
business immediately commence doing business so that it will support a managerial or executive 
position within one year. 52 Fed. Reg. 5738, 5740 (February 26, 1987). After one year, USCIS 
"will determine , in [its] discretion , whether the new office is ' doing business '· when an extension of 
the petition is adjudicated." !d.; 8 C.F.R. § 214.2(l)(14)(ii) . A petitioner is not absolved of the 
requirement to maintain "sufficient physical premises" simply because it has been in existence for 
more 
than one year. In order to be considered a qualifying organization, a petitioner must be doing 
business in a regular, systematic, and continuous manner. 8 C.F.R. §§ 214.2(l)(l)(ii)(G) and 
(H). Inherent to that requirement, a petitioner must possess sufficient physical premises to conduct 
business. 
In this case, the Petitioner submitted a copy of a lease agreement for an office suite. The agreement 
did not state the size of the suite, but it did specify that the lessor would provide two desks and two 
chairs. A photograph of the office shows one desk and a table. A second photograph shows a 
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Matter of P-I- Inc. 
conference room, which, according to thelease, is available for the Petitioner's occasional use but is 
not leased directly to the Petitioner. 
In the RFE, the Director asked for evidence that the Petitioner had sufficient space for its five 
claimed employees. In response, the Petitioner submitted another copy of the office lease, but did 
not address the Director's questions about how that office could accommodate the Petitioner's entire 
staff. Also, the Petitioner's business plan indicates that the company provides storage services for its 
clients. The Petitioner did not show that it had secured storage space in order to provide this service. 
The record contains other questionable information beyond what the Director raised in the denial 
notice. We have already noted discrepancies such as the Petitioner's employment of -based 
staff, purportedly to work at locations hundreds of miles away in Also, on Form 1-129, the 
Petitioner estimated its gross annual income at $500,000, and its net annual income at $125,000. 
The Petitioner's most recent income tax return at the time of filing, however, does not support those 
numbers. On its 2015 IRS Form 1120, U.S. Corporation Income Tax Return, the Petitioner reported 
gross income of $29,261. Under "taxable income," the Petitioner reported a net loss of $100,919. 
The Petitioner must resolve these inconsistencies with independent, objective evidence pointing to 
where the truth lies·. Matter of Ho, 19 I&N Dec. 582, 591-92 (BIA 1988). Unresolved material 
inconsistencies may lead us to reevaluate the reliability and sufficiency of other evidence submitted 
in support of the requested immigration benefit. !d. 
In the denial notice, the Director found that the Petitioner had not accounted for its statement that the 
company is not yet "fully established." The Director also concluded that the office shown in the 
photograph is large enough to accommodate five employees. The Director's overarching conclusion 
was that the Petitioner has not reached a stage where it has a realistic need for an executive position. 
On appeal, the Petitioner does not address the Director's findings regarding lhe above issues. We 
find that the grounds discussed above warrant denial of the petition and, because the Petitioner has 
not overcome them, dismissal of the appeal. 
C. Staffing 
Beyond the required description of the job duties, USCIS considers other factors including the 
company's organizational structure, the duties of a beneficiary 's subordinate employees, the 
presence of other employees to relieve a beneficiary from performing operational duties, the nature 
of the business, and any other factors that will contribute to understanding a beneficiary's actual 
duties and role in a business. 
The statutory definition of 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 10l(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 have a 
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Matter of P-I- Inc. 
subordinate level of managerial employees for a beneficiary to direct and 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 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. 
Initially, the Petitioner stated: "The company currently has a total of 5 employees, including 1 
subordinate manager. The President is directly responsible for the supervision of the General 
Manager." Other materials listed the employees' titles as president (the Beneficiary); secretary (the 
Beneficiary's spouse); property manager; and two maintenance specialists. 
The Director, in the RFE, requested additional evidence about the Petitioner's employees and their 
duties. In response, the Petitioner stated that it had four employees and planned to hire more once it 
completed the purchase of the convenience store. The Petitioner stated that it no . longer employed 
the Beneficiary's spouse as the secretary. Because the Petitioner did not claim to have hired a 
replacement, all the duties of that position would have to be performed by someone else. The 
Petitioner did not explain who performs the company's clerical and administrative functions in the 
absence of a secretary. 
The Petitioner stated that the two maintenance specialists conduct needed repairs and maintenance, 
while the property manager establishes rental rates, negotiates leases with tenants, and collects rents. 
The Petitioner claimed that the property manager also addresses tenant complaints, inspects 
properties, and arranges for repairs, renovations, and "contracting with landscaping and snow 
removal services." The Petitioner has not established the need for snow removal services for 
properties in central Florida, where significant snow accumulation is very rare. 
More significant questions arise from the Petitioner's business plan. Regarding the rental properties , 
the business plan stated: "The company not only offers these properties on a short term basis, but it 
also offers its clients such luxury amenities as housekeeping, mailing and package reception 
services, storage, transportation, grocery shopping, and more." The Petitioner did not explain how it 
provides these services in with four employees and a one-room office, all in 
In this respect, the unexplained involvement of and is significant. 
These businesses would likely be in a position to provide property management services 
and, at least in the case of the resort, other amenities to tenants in Because the Petitioner 
has not established the role that the realtor and resort play, we cannot determine what remains for the 
Petitioner's employees in to do. Furthermore, there is no indication that the Petitioner pays 
the realtor or resort to provide those services on a contract basis. Rather, the Petitioner sends those 
companies monthly bills, suggesting that the Petitioner provides some service to them rather than the 
other way around. Therefore , we cannot conclude that and provide 
the listed services on the Petitioner's behalf. 
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Matter of P-I-Inc . 
In the denial notice, the Director acknowledged the Petitioner's plans to hire additional managers in 
the future, but found that the property manager was the only claimed manager on staff at the time of 
filing. The Director also found that the property manager "performs the day-to-day services of the 
entity" and therefore does not qualify as a manager. The Director concluded that, while the 
Beneficiary has the necessary degree of authority over the company, the Petitioner had not 
established "a subordinate level of managerial employees for the beneficiary to direct," which is a 
core element of an executive capacity. 
On appeal, the Petitioner states that it has documented the company's growth, warranting executive 
leadership to steer the company's progress. The Petitioner states that the company is staffed well 
enough to permit the Beneficiary to perform primarily executive tasks, as .shown by the company's 
continued pursuit of new ventures such as the gas station, convenience store, and car wash. 
The Petitioner has not directly addressed or overcome the Director's key finding that the company 
lacks a subordinate level of management for the Beneficiary to direct. The Petitioner has an 
employee whom it calls a property manager, but the record does not show that this individual 
actually performs primarily managerial duties. Many of the duties described, such as collection of 
rent and inspection of property, appear to be front-line operational tasks rather than managerial 
functions, and even these are questionable considering that the property manager's documented 
place of residence is several hours' drive away from where the rental properties are. 
The record raises many questions about issues such as the Petitioner's ability to accommodate its 
staff and perform the services described in the business plan; the role of and 
with respect to the rental properties for which the Petitioner regularly 
bills them; and the 
apparent lack of any staff in the area. In the face of these unanswered questions, and in the 
absence of a substantive appeal, we cannot conclude that the Petitioner has met its burden of proof. 
Furthermore, as the Director explained, we will not take the Petitioner's planned future growth into 
consideration because those plans do not establish that the Beneficiary qualified as an executive at 
the time the Petitioner filed the petition. 
III. CONCLUSION 
The Petitioner has not established that, at the time of filing, the company was able to employ the 
Beneficiary in an executive capacity. 
ORDER: The appeal is dismissed. 
Cite as Matter of P-I-Inc., ID# 313296 (AAO Apr. 25, 2017) 
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