dismissed L-1A Case: Real Estate Development

U.S. Citizenship 
and Immigration 
Services 
MATTER OF A- LLC 
APPEAL OF VERMONT SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: MAY 25. 2017 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a real estate development and constmction project management services business, seeks 
to extend the Beneficiary's temporary employment as its manager under the L-IA nonimmigrant 
classification for intracompany transferees. See Immigration and Nationality Act (the Act) section 
IOI(a)(l5)(L), 8 U.S.C. § IIOI(a)(l5)(L). TheL-IA classilication 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 new office extension petition, concluding 
that the record did not establish, as required, that the Beneficiary will be employed in a managerial or 
executive capacity under the extended petition. 
On appeal, the Petitioner submits additional evidence and asserts that the Director mischaracterized 
the nature of the Beneficiary's job duties and placed undue emphasis on the size of the petitioning 
company. 
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. 
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 
Matter afA- LLC 
evidence that it maintains a qualifying relationship with the beneficiary's foreign employer. 
8 C.F.R. § 214.2(1)(14)(ii). 
IL U.S. 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 under the extended petition. Specifically, the Director found that 
the Petitioner did not meet its burden to provide a detailed description of the Beneficiary's proposed 
duties and to establish that someone other than the Beneficiary would perform the day-to-day 
operational duties inherent to the business. 
On appeal, the Petitioner asserts that its descriptions of the Beneficiary's duties were sufficiently 
detailed, that the Director incorrectly assumed that the Beneficiary would perform non-qualifying 
tasks, and that the Director overemphasized the Petitioner's staffing levels without considering the 
overall growth of the business or its use of contractors who perform operational duties. 
The term "managerial capacity" is defined 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; 
(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. 
Section 101(a)(44)(A) of the Act. Further, "[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 are professionaL" !d. 
The term "executive capacity" refers to an assignment 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 ofthe organization. Section 101(a)(44)(B) of the 
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Matter 'if A- LLC 
Act. If staffing levels are used as a factor in determining whether an individual is acting in a 
managerial or executive capacity, we 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 IOI(a)(44)(C) of the Act. 
A. Duties 
When examining the managerial or 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). 
The Petitioner must first show that the Beneficiary will perform certain high-level responsibilities 
outlined in the statutory definitions of managerial or executive capacity. 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. 
The Petitioner identified the Beneficiary's job title as "manager" on the Form T-129, Petition for a 
Nonimmigrant Worker, but did not state the nature of the business, its current number of employees, 
or its gross and net annual income. In a statement in support of the petition, the Petitioner described 
the Beneficiary's role as follows: 
As Manager of [the Petitioner], he will perform the same duties as he has been both 
for the Peruvian company and the U.S. company, which will continue to operate 
under his full direction until his return prior to the expiration of his renewed L-1 A 
visa. He will exercise complete oversight of the company's operations, serve as 
architect for all projects, supervise all operations, establish its financial and 
investment goals and policies, supervise all employees, and serve as its chief 
executive officer. 
As owner, architect and project manager of [the foreign entity]. [the Beneficiary] 
continues to bring a wealth of experience and talent so that the future of the company 
in the U.S. looks bright. 
The Petitioner has also stated that the Beneficiary, as manager, performs the following duties as set 
forth in its limited liability company operating agreement: 
The manager shall be the chief executive officer and shall direct the management of 
the company, establish its goals and policies, direct its operations, supervise its staff 
and employees, and perform and direct the performance of, those functions necessary 
to achieve the company's goals. 
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Maller of A- LLC 
These brief descriptions of the Beneficiary's duties established his level of discretionary authority 
over the company, but, in significant part, paraphrase the statutory definitions of managerial and 
executive capacity. Conclusory assertions regarding the Beneficiary's employment capacity are not 
sufficient. Merely repeating the language of the statute or regulations does not satisfy the 
Petitioner's burden of proof. Fedin Bros. Co .. Ltd. v. Sava, 724 F. Supp. 1103, 1108 (E.D.N.Y. 
1989), aff'd, 905 F. 2d 41 (2d. Cir. 1990); Avyr Assocs., Inc. v. Meissner, 1997 WL 188942 at *5 
(S.D.N.Y.). Neither the Petitioner's statement nor the duties outlined in the company's operating 
agreement were sufficiently detailed to explain the nature of the Beneficiary's day-to-day tasks 
within the context of the business. 
Further, because the Petitioner stated that the Beneficiary would be serving as an architect for all 
projects, it was unclear how much of the Beneficiary's time would be spent on non-managerial 
architecture and design tasks as opposed to performing the stated general managerial or executive 
duties. Whether the Beneficiary is a managerial or executive employee turns on whether the 
Petitioner has sustained its burden of proving that their duties are "primarily" managerial or 
executive. See sections 101(a)(44)(A) and (B) of the Act. 
The Director therefore issued a request for evidence (RFE) in which she asked for a detailed 
statement of the Beneficiary's job duties, the percentage of time he spends on speci lie tasks, and an 
explanation of how his duties qualify as managerial or executive. 
In a letter submitted in response to the RFE, the Petitioner referenced its initial statement and the 
operating agreement, emphasizing that the Beneficiary is "fully responsible for all operations and the 
achievement of the company's goals and objectives." 
In a separate statement, the Petitioner described the Beneficiary as its "Project- General Manager" 
and noted that his responsibilities to the company-at-large including establishing its "vision mission 
and strategies to achieve goals," "planning and control of financial and production area," reviewing 
systems to improve production, executing and implementing contracts and managing clients, 
vendors, subcontractors and staff, with authority to hire and fire. The Petitioner further listed the 
Beneficiary's project-related responsibilities as follows: 
Planning 
• Approve architectural plans for renovations and new projects 
• Decide scope of work in contact with property owner 
• Apply for permits and track them 
• Create Gant diagrams to estimate timex project 
• Work with subcontractors to get estimate budget 
• Planning 1-IHRR, quality standards, and security process 
• Planning purchases schedule and comparatives 
• Such other functions as necessary to complete project. 
Control 
• Dashboard (weekly report to clients) 
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Matter of A- LLC 
• To control and report progress, time, cost, budget and 1ssues analsis [sic] of 
dashboard to make appropriate c hanges. 
• "Change orders " appr ova l and implementation. 
• Review and approve invoices from sub[ contractors
] and crews (expe nses report) 
Closing 
• Closing report for each prope11y including as-bui lt plans, pictures, final rates in 
cost and time, quality doss ier 
The Petitioner provided a list of finished and on-going project s, in which i t l isted i ts only active 
proj ect as its one-year contr act to prov ide project managemen t services to 
We a gree with the Direct or's determ ination that the evidence submitted in respo nse to the RFE did 
not clearly describe the Beneficiar y' s intended duties under the exte nded petition or establish that he 
would primarily perform managerial or exec utive duties. While the responsib ilities attributed to him 
in his role as "general -project manager" confirm his decision-m aking authority and oversight of the 
company as a whole , his project m anage ment responsibilities, as listed in response to the RFE , 
indicate that he will also be signific antly involved in providing the company's construction project 
management services. Those proj ect-related dutie s closel y match the serv ices that the Petitioner 
would be providing to its client, a nd suggest that the Beneficiary will be directly prov idin g 
those services, rather than supervising company employees who provide the services . 
While we acknowledge the Petitioner' s c laim that the Benefici ary wo uld not be performing tasks 
such as electrical work or carpentry, we cannot ove rlook the nat ure of the Petitioner ' s bu siness as a 
const ruction management services prov ider. The Benefi ciary's role in managing a project for a 
client is not c onsidered a mana gerial duty performed for the petitioning company; rathe r, his dutie s 
indicate that he directl y provides the services that the Petitioner agree d to provi de in the parties' 
master service agreement. The invoices the Petitioner issued to indicate that it regularly 
charges for at least 40 hours per week of project managemen t services and the Peti tioner has 
not identified anyone, oth er than the Beneficiary, who is available to provide these services. While 
the Beneficiary may supervise other contractors o n these projects, such duties do not 
establish his managerial or exec utive role w ith the Petitioner. 
On appeal, the Petitioner submit s a s tatement in which it clariti es that the Petitioner' s business 
model also include s "flippin g" hou
ses and purchasing land for deve lopment. The Petitioner submit s 
some evidence indicatin g that it hires subcontractors to work on these renovation and development 
projects. While the Benefic iary supervises such contract ors, the Petitioner also states that the 
Benefic iary served as the a rchitect for these projects. O verall, the Petitioner has not exp lained how 
1 The initial evidence had included a "Master Agreement for Construction Management Services'' between the Petitioner 
(as construction manager), and to provide construction project management services for eight 
of r eal estate projects. A sample work order indicates that the Petitioner is responsible for drawing project 
plans, pulling permits, creating a project plan for scope of work, creating an estimated material budget and an estimated 
timeline, managing quality of subcontractor deliverables, and managing safety at the worksite. 
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Matter of A- LLC 
the Beneficiary's time is divided between performing general managerial or executive duties such as 
establishing company strategies, managing finances and overseeing the company's own real estate 
development projects, versus performing the duties of an architect and directly providing 
construction project management services to clients such as 
Therefore, we are unable to determine \vhether the claimed managerial or executive duties would 
constitute the majority of the Beneficiary's duties, or whether the Beneficiary would primarily 
perform non-qualifying operational duties. Although the Director specifica!Jy requested this 
information, the Petitioner's descriptions of the Beneficiary's job duties do not establish what 
proportion of the duties is managerial in nature, and what proportion is non-managerial. See 
Republic ofTranskei v. !.VS, 923 F.2d 175,177 (D.C. Cir. 1991). 
However, as discussed further below. \Ne note that the Petitioner does not claim to have another 
employee qualified to perform construction project management or architectural services. 
Therefore, it is unclear how the Beneficiary could primarily perform managerial or executive duties 
when the Petitioner regularly bills its client for 40 or more hours of project management services 
(which he provides) on a weekly basis. Therefore, the Director's determination that the Beneficiary 
likely performs a number of non-managerial duties related to the provision of services '>Vas 
reasonable and supported by the record. 
B. Staffing 
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. 
The Petitioner did not provide evidence of its staffing levels at the time offiling. In response to the 
Director's request for evidence, the Petitioner stated that it employs a "manager assistant (office 
manager)" v.-·ho is also identified in the reco rd as the foreign entity's general manager. The 
Petitioner stated that this employee is responsible for office administration, collecting and reviewing 
invoices, purchase orders and contracts, and assisting the Beneficiary with letters, payments, 
acquisitions, and other documents. The Petitioner provided a copy of the manager assistant's IRS 
Form \V-9 and copies of several checks iss ued to her. 
The evidence submitted on appeal indicates thc.t the Petitioner also hired subcontractors to perfom1 
duties related to the renovation of a home owned by the Beneficiary and to the construction of a new 
home on property owned by the Petitioner. 
The Petitioner has referred to the Beneficiary's position as both execu tive and managerial. The 
statutory definition of "managerial capacity'· allows for both. "personnel manag ers" and "function 
managers." See section 10l(a)(44)(A)(i) and (ii) of the Ac.t. Personnel managers are required to 
primarily supervise and control tl1e work of other supervisory, professional, or manager ial 
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Mauer of A- LLC 
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." 2 Section IOI(a)(44)(A) of the Act. 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 
IOI(a)(44)(A)(ii)-(iii) of the Act. 
Although requested by the Director, the Petitioner did not provide information regarding the 
educational requirements for the position subordinate to the Beneficiary. We cannot determine 
based on the information submitted that the oflice manager is a professional position and the job 
description does not establish that she is a supervisor or manager. Similarly, the record does not 
contain sufficient information regarding subcontractors to establish that the Beneficiary functions as 
a personnel manager with respect to these individuals. The Petitioner has not shown that the 
Beneficiary supervises a subordinate staff of supervisory, professional, or managerial employees as 
required by section IOI(a)(44)(A)(ii) of the Act. 
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 IOI(a)(44)(A)(ii) of the Act. If a petitioner claims that a 
beneficiary will manage an essential function, a petitioner must clearly describe the duties to be 
performed in managing the essential function, or more specifically, identify the function with 
specificity, articulate the essential nature of the function, and establish the proportion of a 
beneficiary's daily duties attributed to managing the essential function. See 8 C.F.R. 
§ 214.2(1)(3)(ii). In addition, a petitioner's description of a beneficiary's daily duties must 
demonstrate that the beneficiary will manage the function rather than perform duties related to the 
function. See Matter ofZ-A-. Inc., Adopted Decision 2016-02 (AAO Apr. 14, 2016). In this matter, 
the Petitioner has not provided evidence that the Beneficiary manages an essential function. 
As discussed, the managerial duties attributed to the Beneficiary are general management 
responsibilities involving oversight of the company as a whole, rather than the management of a 
specific function. While the Beneficiary is also charged with project management duties, the 
evidence supports a finding that most of his project management duties are performed as a service 
for clients and are not related to the management of a function for the Petitioner. Finally, as noted, 
the record does not establish that the Beneficiary's duties are primarily managerial and therefore, he 
cannot qualify as a function manager. 
2 To detennine \Vhether 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 I 0 I (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 
elemental)' or secondary schools, colleges, academies, or seminaries.'" 
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Maller of A- LLC 
The statutory definition of the term "executive capacity" focuses on a person's elevated posttton 
within an organizational hierarchy, including major components or functions of the organization, and 
that person's authority to direct the organization. Section IOI(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. One 
does not qualify as an executive under the statute simply because one ''directs" the enterprise as the 
sole managerial employee. Here, while the Beneficiary may have the appropriate level of authority 
over the company as its senior employee, the submitted job descriptions do not demonstrate that the 
Beneficiary would be primarily focused on the policies and goals of the company rather than on its 
day-to-day operational activities. 
The Petitioner correctly emphasizes that a company's size alone may not be the determining factor 
in denying an L-IA visa petition without taking into account the reasonable needs of the 
organization. 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 perfom1 the non-managerial or non-executive operations of the 
company or a "shell company" that does not conduct business in a regular and continuous manneL 
Family, 469 F.3d 1313; Syslronics Cow v. INS. !53 F. Supp. 2d 7, 15 (D.D.C 2001). 
As the Petitioner requested an extension of a new ot1ice petition, the regulations require an 
examination of the Petitioner's organizational structure and staffing Je,•els. See 8 C.F R. 
§ 214.2(l)(14)(ii)(D). The regulation at 8 C.FR. § 2142(l)(3)(v )(C) allows a "new oftice" operation 
no more than one year within the date of approval of the petition to support an executive or 
managerial position. There is no provision in USCIS regulations that allows for an extension of this 
period. If a new office does not have the necessary staffing to sufficiently relieve the beneficiary 
from performing operational and administrative tasks, the petitioner is ineligible by regulation for an 
extension. 
The Petitioner purchases land and existing buildings, builds or renovates, and re-sells these 
properties. However, the record indicates that most of the company's income derives from 
providing full-time construction project management services to other companies. Despite the 
Petitioner's claim that "operational tasks are conducted by others," the Petitioner has not 
documented any employees, other than the Beneficiary, who would provide these project 
management services. While the assistant/office manager would assist wrth administrative and 
record-keeping duties, it appears that all other functions involved in coordinating the company's own 
projects and providing project management services to others would necessarily be perfonned by the 
Beneficiary. We cannot conclude that one subordinate employee and subcontractors hired on an as­
needed basis would sufficiently relieve the Beneficiary significant involvement in non-qualifying 
activities. 
We interpret the statute to prohibit discrimination against small or medium-size businesses. 
However, we also interpret the Act to require petitioners to establish that the beneficiary's position 
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Matter of A- LLC 
"primarily" consists of managerial and executive duties, and that it has sufficient personnel to relieve 
a beneficiary ±rom performing operational and administrative tasks. The reasonable needs of a 
petitioner will not supersede the requirement that a beneficiary be "primarily" employed in a 
managerial or executive capacity as required by the statute. Brazil Quality Stones v. Chertoj]; 531 
F.3d I 063, I 070 n.l 0 (9th Cir. 2008). 
We acknowledge that the company has continued to acquire projects and contracts and was doing 
business throughout its initial year of operations. However, even though the enterprise is in a 
preliminary stage of organizational development, the Petitioner is not relieved from meeting the 
statutory requirement that it establish that the Beneficiary's duties were primarily managerial or 
executive at the time the extension is sought. 
On appeal, the Petitioner contends that the Beneficiary's position has all the necessary elements of a 
managerial position, but does not sufficiently elaborate. As explained above, these broad statements 
are not sufficient to meet the Petitioner's burden, particularly when the evidence indicates that the 
Beneficiary performs a number of non-managerial duties in order to provide the company's services. 
We agree with the Director's determination that the evidence is insufficient to establish that the 
Beneficiary would be employed in a managerial or executive capacity under the extended petition. 
III. EXPORT LICENSE REQUIREMENT 
We also find that the Petitioner did not indicate whether an export license is required to operate its 
business as instructed on page 5, Part 6 of the Form J-129. The form instructions state, "If you do 
not completely fill out the form ... you will not establish a basis for eligibility and we may deny 
your petition." See 8 C.F.R. § 103.2(a)(1) (incorporating the instructions into the regulations). By 
completing page 5, Part 6 of the Form 1-129, the Petitioner certifies that it has reviewed the Export 
Administration Regulations and the International Traffic in Arms Regulations and determined 
whether it will require a U.S. Government export license to release controlled technology or 
technical data to the Beneliciary 3 By signing the Form I-129, the employer certifies under penalty 
of perjury that the information provided on the form is true and correct. 
In the instant case, the Petitioner did not comply with the form instructions and properly complete 
page 5, Part 6 of the petition. Accordingly, the petition was not properly tiled and it cannot be 
approved for this additional reason. 
3 The Export Administration Regulations, 15 C.F.R. §§ 770-774, and the International Traffic in Arms Regulations, 
22 C.F.R. §§ 120-\30, require U.S. persons, including companies, to seek and receive authorization from the U.S. 
Government before releasing controlled technology or technical data to foreign persons in the United Stales. U.S. 
companies must seek and receive a license from the U.S. Government before releasing controlled technology or technical 
data to nonimmigrant workers employed as H-1 B, H-1 B I, L-1, or 0-1 A beneficiaries. 
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Malter af A- LLC 
IV. CONCLUSION 
The appeal must be dismissed as the Petitioner did not establish that it would employ the Beneficiary 
in a managerial or executive capacity under the extended petition. Fut1her, the Petitioner did not file 
a properly completed Form I-129. 
ORDER: The appeal is dismissed. 
Cite as Matter of A- LLC, JD# 350630 (AAO May 25, 2017) 
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