dismissed L-1A Case: Real Estate

U.S. Citizenship 
and Immigration 
Services 
MATTER OF E-G-H-, LLC 
APPEAL OF VERMONT SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: DEC. 22, 2017 
PETITION: FORM l-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a real estate maintenance and renovations business. seeks to temporarily employ the 
Beneficiary as president and general manager of its new office 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 at1iliate or subsidiary) to transfer a qualifying foreign employee to the United States 
to work temporarily in a managerial or executive capacity. 
The Vermont Service Center Director denied the petition. concluding that the record did not 
establish, as required, that the Petitioner will employ the Beneficiary in a managerial or executive 
capacity within one year of approval of the petition. 
On appeal, the Petitioner asserts that the record includes sutlicient evidence to establish that the 
Beneficiary's duties will be executive or managerial and that it does not need a large staff as the 
Beneficiary will manage a function within the corporation. 
Upon de novo review, we will dismiss the appeal. 
I. LEGAL FRAMEWORK 
To establish eligibility for the L-1A nonimmigrant visa classification for a new office, a qualifying 
organization must have employed the beneficiary in a managerial or executive capacity for one 
continuous year within three years preceding the beneficiary's application for admission into the 
United States. 8 C.F.R. § 214.2(1)(3)(v)(B). In addition. the beneficiary must seek 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)( 15 )( L) of the 
Act. The petitioner must also establish that the beneficiary's prior education. training. and 
employment qualities him or her to perform the intended services in the United States. 8 C.F.R. 
§ 214 .. 2(1 )(3 ). 
The petitioner must submit evidence to demonstrate that the new office will be able to support a 
managerial or executive position within one year. This evidence must establish that the petitioner 
secured sufficient physical premises to house its operation and disclose the proposed nature and 
Maller olE-G-H-. LLC 
scope of the entity, its organizational structure, its financial goals, and the size of the U.S. 
investment. See Kenerally, 8 C.F.R. § 214.2(1)(3 )(v). 
"'Managerial capacity'' means as 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 
101 (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. 
II. U.S. EMPLOYMENT IN A MANAGERIAL OR EXECUTIVE CAPACITY 
The Petitioner was organized in November 2013. The Petitioner stated that its main objective is 
building maintenance, apartment renovations, and renting furnished premises on a monthly basis. 
The Petitioner opened its bank account in February 2015 and began operations in April 2015. The 
Petitioner tiled the new office petition on January 27, 2016, and thus had not been doing business for 
a full-year prior to filing the petition. 
The Director found that the Petitioner's business plan was vague and did not include sufficient detail 
to support the Petitioner's financial projections. The Director determined that the record did not 
support the Petitioner's claim that the Beneficiary would manage a subordinate staff of managerial 
or supervisory personnel who would relieve him from performing non-qualifying duties. The 
Director concluded that the record did not establish that the Petitioner would grow to a point in its 
first year where the Beneficiary will be involved in activities that are primarily managerial or 
executive in nature. 
We will address both the Petitioner's description of the Beneficiary"s intended duties as well as the 
Petitioner's business plan and proposed staning to determine whether the Petitioner has established 
this eligibility requirement. 
A. Duties 
When a new business is first 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 
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Maller of E-G-H-. LLC 
low-level activities not normally performed by employees at the executive or managerial level and 
that often the full range of managerial or executive responsibility cannot be performed in that first 
year. The ""new office"' regulations allow a newly established petitioner one year to develop to a 
point that it can support the employment of a beneficiary in a primarily managerial or executive 
position. 
When examining the managerial or executive capacity of a beneficiary. we review a petitioner's 
description of the job duties. See 8 C.F.R. § 214.2(1)(3)(ii). The definitions of executive and 
managerial capacity have two parts. First, the petitioner must show that the beneficiary will perform 
certain high-level responsibilities. Champion World Inc. v. INS. 940 F.2d 1533 (Table). 1991 WL 
144470 (9th Cir. July 30. 1991 ). Second, the petitioner must prove that the beneficiary will be 
primarily engaged in executive or managerial duties. as opposed to ordinary operational activities 
alongside the petitioner's other employees. See. e.g., Family Inc. v. USCIS, 469 F.3d 1313. 1316 
(9th Cir. 2006): Champion World, 940 F.2d at 1533. 
The Petitioner's initial description of the Beneficiary's proposed duties re-stated portions of the 
definitions of executive and managerial capacity. Conclusory assertions regarding the Beneficiary's 
employment capacity, however. are not sufficient. Merely repeating the language of the statute or 
regulations docs not satisfy the Petitioner's burden of proof. Fedin Bros. Co .. Ltd v. Sava, 724 F. 
Supp. 1103, 1108 (E.D.N.Y. 1989), afj"d. 905 F. 2d 41 (2d. Cir. 1990): A\}'r Assocs .. Inc. \'. 
Meissner, 1997 WL 188942 at *5 (S.D.N.Y.). The Petitioner also noted that the Beneficiary would 
represent the company in its activities. identify new business opportunities. and determine the 
demand for its services. The Petitioner does not further detail the tasks the Beneficiary will perform 
in carrying out these duties and does not indicate when and for how long the Beneficiary will be 
required to perform these duties. 
In response to the Director's request for evidence (RFE). the Petitioner provided a lengthy 
description of the Beneficiary's proposed duties and allocated the Beneficiary's time to those duties. 
Although the description shows the Beneficiary possesses a senior level of authority within the 
company. it offers little insight into what he will actually do on a day-to-day basis during the first 
year of operations and beyond. The Petitioner does not connect any of the vague job responsibilities 
to its actual apartment maintenance. renovation, or rental management business. The actual duties 
themselves will reveal the true nature of the employment. Fedin Bros. Co .. Ltd \'. Sara. 724 r. 
Supp. at 1108. 
Moreover. the Petitioner does not describe how the Beneficiary will move beyond daily involvement 
in non-qualifying tasks related to financial review. promoting the business. and developing the 
Petitioner's business to primarily performing managerial or executive duties within the one-year 
time frame. The Petitioner's broad allocation of the Beneficiary's time to various functions which 
includes managerial. executive. and non-qualifying duties does not provide a sufficient framework to 
analyze and evaluate what the Beneficiary will be doing within and beyond the one-year if the 
petition were approved. The record does not establish that the Beneficiary will perform duties in a 
primarily managerial or executive capacity within the required one-year time period. 
Malter olE-G-H-. LLC 
The Petitioner does not provide any additional information regarding the Beneficiary"s actual 
proposed duties on appeaL but asserts that the Beneficiary ''will use her [sic J independent discretion 
and authority in identifying and cultivating new business sources. develop strong and mutually 
beneficial relationships with providers, start: sub-contractors and other high level sources." 
However, the fact that the Beneficiary will manage or direct a business does not necessarily establish 
eligibility for classification as an intracompany transferee in a managerial or executive capacity 
within the meaning of section 101(a)(44) of the Act. By statute, eligibility for this classification 
requires that the duties of a position be "primarily" executive or managerial in nature. Sections 
101(A)(44)(A) and (B) of the Act. While the Beneficiary may exercise discretion over the 
Petitioner's day-to-day operations and possess the requisite level of authority with respect to 
discretionary decision-making, the position descriptions alone are insufficient to establish that his 
actual duties would be primarily managerial or executive in nature. 
B. Business Plan and Staffing 
The Petitioner provides two versions of its organizational chart. The first iteration shows the 
Beneficiary as the general manager with a marketing manager reporting to him. The chart shows a 
technician/repairman and an administrative assistant reporting to the marketing manager. The chart 
also included "workers" reporting to the technician/repairman. The second iteration of the 
organizational chart, submitted in response to the Director's RFE, shows the Beneficiary as the 
president and the administrative assistant, marketing manager, and technician/repairman reporting 
directly to the Beneficiary. The Petitioner does not identify any additional proposed employees or 
contractors on the second chart. 
The Petitioner indicates that the marketing manager will determine the demand for its services. 
develop pricing and marketing strategies, and oversee product development. The administrative 
assistant will receive orders, resolve complaints, and perform recording keeping. mail distribution. 
invoicing and collection, oversee facilities planning. maintenance. and custodial operations. as well 
as coordinate activities of clerical and administrative personnel. The technician is charged with 
installing tile. painting. and calculating cost of materials. These descriptions do not appear to 
correspond to the Petitioner's business. For example. the Petitioner does not identify any clerical or 
administrative personneL current or planned. for its administrative assistant to coordinate. Similarly. 
the Petitioner indicates that its business services include cleaning and maintaining the buildings it 
services. However. the technician is not described as performing cleaning and maintenance duties 
but rather with the renovation portion of the Petitioner's business. 
The Petitioner's undated business plan notes that the Petitioner employs three full-time employees 
and that it provides maintenance and small renovations to I 0 buildings. The business plan projects 
that the Petitioner will grow to service 20 buildings within six months and that by the end of 2016 
will service 30 buildings. The Petitioner also refers to furnishing and renting out apartments with a 
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Matter (~lE-G-H-. LLC 
partner management company. 1 The Petitioner projects that it will earn $225.000 in the upcoming 
year of business and that its gross profits will be $90,000. The Petitioner did not provide a hiring 
plan and did not include a marketing study or other evidence to support its business forecast. 
In response to the Director's RFE, the Petitioner revised its business forecast and indicated that by 
the end of 2016 it expected to service 25 buildings and that when it serviced 20 buildings it would 
hire one additional maintenance employee. The Petitioner projected that by the end of 2017 it 
expected to service 35 buildings and at that time it would have two full-time maintenance 
employees. The Petitioner does not include evidence of its projected salary expenses. 
The Petitioner also submitted a profit and loss statement for January 2016 through September 2016. 
The statement listed the cost of labor as $53,162. The Petitioner lists the Beneficiary"s annual wage 
on the Form 1-129 as $36,000 annually; thus his salary for the first nine months of the year would 
equal $27,000. It appears that the remaining $26,162 would have been divided between the 
Petitioner's three other employees and the cost of subcontractors to perform small renovations. 2 
This level of salary expense for three employees and subcontractors does not support the Petitioner· s 
assertion that it will be fully staffed and able to relieve the Beneficiary from performing the 
non-qualifying duties associated 
with operating a real estate maintenance and renovation service. as 
well as a rental business. 
It is not clear how the Petitioner plans to staff its business with only one technician providing the 
work to perform the maintenance and small repair for 20 to 30 buildings. It is also not clear who 
will perform the operational tasks necessary to procure, furnish, and rent or sublease the premises 
monthly. The business plan lacks basic information regarding the Petitioner's projected employees 
and their salaries. The record does not include evidence of the Petitioner's current employees, the 
actual salaries paid, and their position within the Petitioner's organizational structure. There is 
insufficient evidence in the record to adequately evaluate and analyze whether the Petitioner will 
realistically grow and expand to support the Beneficiary in a managerial or executive position within 
one year. 
On appeaL the Petitioner asserts that it will use subcontractors to perform real estate maintenance 
and renovations. 1-Iowever, the Petitioner does not submit probative evidence that it has used or has 
entered into contracts for these services. T'he Petitioner also does not explain how the cost of 
subcontractors impacts its revenue and expenses, if at all. Further. the record does not include 
sufficient evidence demonstrating that these subcontractors will relieve the Beneficiary from 
1 
The Petitioner does not identify the management company. The Petitioner did include copies of its bank statements for 
May through December 2015. which reveal a number of payments received from an online marketplace and 
hospitality service for rentals. 
2 The Petitioner states that renovation services are billed separately and that most times it hires a separate crew to 
perform these renovations. The record does not include evidence of these separate bills or expenses. The Petitioner also 
does not explain why it described its technician position as performing the renovation tasks. 
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Matter of E-G-H-. LLC 
performing financial and other operational tasks or that the Beneficiary will supervise or direct the 
management of the subcontractors. 
The statutory definition of ""managerial capacity'' allows for both ··personnel managers·· and 
"'function managers.'' See section 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. Contrary to the common understanding of the word ·'manager:· the statute 
plainly states that a ·'tirst 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 arc 
professional.'' Section 101(a)(44)(A)(iv) of the Act. If a beneficiary directly supervises other 
employees, the beneficiary must also have the authority to hire and tire those employees. or 
recommend those actions. and take other personnel actions. 8 C.F.R. § 214.2(1)( 1 )(ii)(B)(3). The 
record does not include sufficient and consistent evidence to establish that the Beneficiary will 
primarily supervise professionaL 3 manageriaL or supervisory employees. 
The Petitioner also vaguely refers to the Beneficiary managing a function within the company. It is 
not clear if the Petitioner is claiming that the Beneficiary will be a function manager, and not a 
personnel manager. In any event, the Petitioner 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 101 (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 ··o) the function is a clearly defined activity: (2) the function is "essentiaL' i.e .. 
core to the organization; (3) the beneficiary will primarily manaRe, as opposed to perf'orm. 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 olG- Inc., Adopted Decision 2017-05 (AAO Nov. 8. 2017). Merely 
performing the functions of the company is insufficient. 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 
When evaluating whether a beneficiary manages professional employees, we evaluate whether the subordinate 
positions require a baccalaureate degree as a minimum for entry into the tield of endeavor. Cf 8 c.r.R. ~ 204.5(k)(2) 
(defining "profession'' to mean "any occupation for which a U.S. baccalaureate degree or its foreign equivalent is the 
minimum requirement for entry into the occupation"'). Therefore. we focus on the level of education required by the 
position, not the degree held by the subordinate employee. Thus. the possession of a bachelor's degree by a subordinate 
employee does not automatically lead to the conclusion that an employee is employed in a professional capacity. The 
Petitioner's descriptions of the Beneficiary's subordinates· duties do not demonstrate that the positions require a 
bachelor's degree. 
Matter of'E-G-H-, LLC 
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 have a 
subordinate level of managerial employees for a beneficiary to direct and they must primarily focus 
on the broad goals and policies of the organization rather than the day-to-day operations of the 
enterprise. An individual will not be deemed an executive under the statute simply because they 
have an executive title or because they ''direct" the enterprise as the owner or sole managerial 
employee. A beneficiary must also exercise ''wide latitude in discretionary decision making'' and 
receive only '·general supervision or direction from higher level executives. the board of directors. or 
stockholders of the organization." !d. The Petitioner has not included sufficient probative evidence 
establishing that the Beneficiary will have subordinate managers, rather than operational employees, 
to direct. 
The evidence in the record does not establish that the company will be able to support a qualifying 
managerial or executive position within a one year period. The regulations require the Petitioner to 
present a credible picture of where the company will stand in one year. and to provide sufficient 
evidence in support of its claim that the company will grow to a point where it can support a 
managerial or executive position within that time. In this case, the record lacks adequate staffing 
and financial projections, and a credible business plan. There is insut1icient evidence in the record 
to support a finding that the Beneficiary will have a suf1icient staff to relieve him from pert(mning 
the daily tasks of running the petitioning business within one year. It appears more likely that he 
will perform many of the tasks that the Petitioner purports he will supervise. manage. or direct. 
III. CONCLUSION 
The appeal will be dismissed because the Petitioner has not established that the Beneficiary will be 
employed in a managerial or executive position for the Petitioner within one year. 
ORDER: The appeal is dismissed. 
Cite as Matter olE-G-H-, LLC, ID# 869308 (AAO Dec. 22. 2017)