dismissed L-1A Case: Real Estate Development

U.S. Citizenship 
and Immigration 
Services 
MATTER OF K-W-LLC 
APPEAL OF VERMONT SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: AUG. 23, 2018 
PETITION: FORM 1-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a real estate development and export business, seeks to temporarily employ the 
Beneficiary as the chief executive officer (CEO) of its new office1 under the L-lA nonimmigrant 
classification for intracompany transferees. Immigration and Nationality Act (the Act) 
section 101(a)(l5)(L), 8 U.S.C. § 1101(a)(l5)(L). The L-lA 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: (1) the Beneficiary will be employed in the United States in a managerial 
or executive capacity within one year; (2) the Beneficiary had at least one year of employment 
abroad in a managerial or executive capacity in the three years preceding the filing of the petition; 
(3) the Beneficiary's foreign employer is doing business abroad; and (4) the Petitioner has secured 
sufficient physical premises to house the new office. The Director further determined that the 
Beneficiary was ineligible for a change and extension of status because he had not maintained his 
previous nonimmigrant status. The Director affirmed all grounds for denial after reviewing the 
Petitioner's subsequent motion to reopen and reconsider. 
On appeal, the Petitioner contends that the Director's decision is lacking in sound reasoning, and 
asserts that the evidence of record is sufficient to meet all eligibility requirements. Further, the 
Petitioner requests that U.S. Citizenship and Immigrant Services (USCIS) exercise favorable 
discretion in granting the Beneficiary a change of nonimmigrant status. 
Upon de novo review, we will withdraw the Director's findings that the Petitioner did not establish 
that it secured sufficient physical premises to operate its new office, or that the foreign entity is 
doing business.2 However, as the Petitioner has not overcome the remaining grounds for denial, we 
will dismiss the appeal. 
1 The tenn "new office" refers to an organization which has been doing business in the United States for less than one 
year. 8 C.F.R. § 214.2(1)(l)(ii)(F). The regulation at 8 C.F.R. § 214.2(1)(3)(v)(C) allows a "new office" operation no 
more than one year within the date of approval of the petition to support an executive or managerial position. 
2 With respect to the physical premises requirement, the record demonstrates that the Petitioner purchased a commercial 
office building and intended to rely on rental income from this property during "phase one" of its business plan. We find 
this evidence sufficient satisfy the physical premises requirement at 8 C.F.R. § 214.2(1)(3)(iii)(A). In addition, the 
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Matter of K-W- LLC 
I. PRIOR PETITION AND CHANGE OF STATUS REQUEST 
Before turning to the merits of the petition, we acknowledge that the Petitioner previously filed a 
new office L-1 A petition on behalf of the Beneficiary in August 2016. That petition 
was approved on January 5, 2017, and valid from January 5, 2017, until January 
4, 2018. In that matter, the Petitioner indicated on the Form 1-129, Petition for a Nonimmigrant 
Worker, that the Beneficiary would depart the United States to obtain an L-1 visa at a U.S. consulate 
overseas and did not request that he be granted a change of nonimmigrant status from Bl to L-lA. 
The Petitioner and counsel state that the request for consular notification was an error on counsel's 
part and the Petitioner intended to request a change of status. 
The Petitioner filed this petition on March 23, 2017 in an attempt to amend the prior approval notice. 
The Petitioner explained counsel's mistake, requested a change of status despite the expiration of the 
Beneficiary's Bl status on September 1, 2016, and requested the same validity period granted by the 
earlier petition. 
The Petitioner emphasizes that it submitted the same evidence with this petition that it provided in 
support of the previous petition, which was approved without the issuance of a request for evidence 
(RFE). If the previous petition was approved based on the same evidence submitted with this 
petition, that approval would constitute an error on the part of the Director. We are not required to 
approve applications or petitions where eligibility has not been demonstrated, merely because of 
prior approvals that may have been erroneous. Matter of Church Scientology Int'/, l 9 I&N Dec. 
593, 597 (Comm'r 1988). For the reasons discussed below, we find the evidence of record does not 
establish eligibility for the benefit sought. 
Further, the Director's decision regarding the requested change of status and extension of stay is not 
appealable, so we do not have jurisdiction to review that decision. The regulations state that, while a 
petitioner's request to classify a beneficiary as an L-lA nonimmigrant and to extend a beneficiary's 
stay are combined in the Form 1-129, a separate determination must be made by the director on each 
issue. 8 C.F.R. § 214.2(1)(15)(i). The regulations provide that there is no appeal of a denial of an 
extension of stay filed on a Form 1-129 Petition for a Nonimmigrant Worker. See 8 C.F.R. § 
214.l(c)(5). Accordingly, the Director's finding that the Beneficiary does not qualify for a change 
and extension of status cannot be appealed. This decision will address only the underlying petition 
and the Beneficiary's eligibility as an L-lA nonimmigrant intracompany transferee. 
II. LEGAL FRAMEWORK 
To establish eligibility for the L-IA nonimmigrant visa classification in a petition involving 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 
Petitioner 's motion to reopen included substantial evidence of the foreign entity 's activities sufficient to establish that the 
Beneficiary's foreign employer continues to do business abroad . 
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Matter of K-W- LLC 
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. Id. 
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 
scope of the entity, its organizational structure, its financial goals, and the size of the U.S. 
investment. See generally, 8 C.F.R. § 214.2(1)(3)(v). 
III. DEFINITIONS 
"Managerial capacity" means an assignment within an organization in which the employee primarily 
manages the organization, or a department, subdivision, function, or component of the organization; 
supervises and controls the work of other supervisory, professional, or managerial employees, or 
manages an essential function within the organization, or a department or subdivision of the 
organization; has authority over personnel actions or functions at a senior level within the 
organizational hierarchy or with respect to the function managed; and exercises discretion over the 
day-to-day operations of the activity or function for which the employee has authority. Section 
101(a)(44)(A) of the Act. 
The term "executive capacity" is defined 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) of the Act. 
Based on the definitions of managerial and executive capacity, the Petitioner must first show that the 
Beneficiary will perform certain high-level responsibilities. Champion World, Inc. v. INS, 940 F.2d 
1533 (9th Cir. 1991) (unpublished table decision). Second, the Petitioner must prove that the 
Beneficiary will be primarily engaged in managerial or executive duties, as opposed to ordinary 
operational activities alongside the Petitioner's other employees. See Family Inc. v. USCIS, 469 
F.3d 1313, 1316 (9th Cir. 2006); Champion World, 940 F.2d at 1533. 
IV. U.S. EMPLOYMENT IN A MANAGERIAL OR EXECUTIVE CAPACITY 
The first issue to be addressed is whether the Petitioner established that the new office would support 
a managerial or executive position within one year of approval of the petition. 
In the case of a new office petition, we review a beneficiary's proposed job duties as well as the 
petitioner's business and hiring plans and evidence that the business will grow sufficiently to support 
a beneficiary in the intended managerial or executive capacity. A petitioner has the burden to 
establish that it would realistically develop to the point where it would require the beneficiary to 
perform duties that are primarily managerial or executive in nature within one year. Accordingly, 
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Matter of K-W- LLC 
the totality of the evidence must be considered in analyzing whether the proposed managerial or 
executive position is plausible considering a petitioner's anticipated staffing levels and stage of 
development within a one-year period. See 8 C.F.R. § 214.2(1)(3)(v)(C). 
A. Duties 
The Petitioner owns and manages a commercial office building and indicated at the time of filing 
that it would be building a warehouse on its existing property and exporting medical and hospital 
equipment during its next phase of development. The Petitioner stated that it will eventually own 
and manage a hotel and restaurant business, but not during the initial year of operations. On the 
Form 1-129, the Petitioner described the Beneficiary's proposed duties as CEO as follows (bullets 
added): 
• Provide leadership and policy making, oversee daily business operations, and 
supervise managers and employees in all departments of the company. 
• Establish the company's overall development strategies and planning; direct the 
company's overall business operations and management. 
• Implement final decisions and sign all finalized documents. 
• Coordinate the public relations of the company. 
• Oversee recruitment, management, and assessment of all subordinate positions. 
Manage the Vice President of Finance and the Vice President of Operations, the 
latter of which will manage the export, property and hospitality departments of 
the subsidiary company. 
• Establish [the Petitioner's] office in the United States and be responsible for 
hiring all of its U.S. employees, and manage the roll-out of the subsidiary's 
hospitality branch. 
• Oversee the subsidiary's export services branch, which offers export product 
storage and helps American products companies to find Chinese buyers and 
contacts for product export sales, trade customs, and distribution, and its property 
development branch ... [.] 
Later, in response to a request for evidence (RFE), the Petitioner submitted another list of duties, 
indicating that the Beneficiary would allocate his time to his various areas of responsibility as 
follows: 
• Establishes company overall development strategies and planning (30%) 
• Directs company overall business operations and management (20%) 
• Review and negotiate company investment projects (10%) 
• Implement final decision and signage authority ( 15%) 
• Oversees recruitment, management and assessment of positions of the company. 
(15%) 
• Client and public relationship management (10%) 
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Matter of K-W- LLC 
These descriptions are overly abroad and focus on the Beneficiary's authority over policy, strategy, 
and "overall business operations," without explaining the specific tasks he would perform on a day­
to-day basis to carry out his these responsibilities. 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.). Here, the Petitioner has not provided the necessary detail or an adequate 
explanation of the Beneficiary's proposed activities in the course of his daily routine. 
We acknowledge that the Beneficiary, as the Petitioner's senior employee, would have authority to 
establish plans, policies, and objectives for the company, supervise any employees hired, and make 
major decisions regarding its finances and overall direction. However, the Petitioner has not 
established that these types of responsibilities would primarily occupy the Beneficiary's time within 
one year. The Beneficiary's discretionary authority is one of several factors we consider in 
determining whether the Petitioner will employ him in a qualifying capacity within one year. 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. 
On appeal, the Petitioner contends that the Director did not give sufficient weight to the 
Beneficiary's listed job duties. However, the Director's decision reflects that she properly 
considered the totality of the evidence to determine whether the Petitioner met its burden to show 
that it would have a reasonable need for the Beneficiary to primarily perform the claimed managerial 
or executive duties within one year. For the additional reasons discussed below, the Petitioner has 
not met this burden. 
B. Projected Staffing and Business Plan 
If staffing levels are used as a factor in determining whether an individual will be acting in a 
managerial or executive capacity, we take into account the reasonable needs of the organization, in 
light of the overall purpose and stage of development of the organization. See section 101(a)(44)(C) 
of the Act. 
In order to qualify for L-1 A nonimmigrant classification during the first year of operations, the 
regulations require a petitioner to disclose the proposed nature of the business and the size of the 
U.S. investment, and 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. § 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. 
The Petitioner's business plan indicates that the company had already purchased a commercial office 
building with 11 current tenants, and it refers to this project as "phase one" of its five year plan. The 
Petitioner indicated that "phase two" would involve the establishment of a warehouse and export 
business focused on export of U.S. hospital and medical equipment to China. The business plan 
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Matter of K-W- LLC 
states that "phase three," a hotel and restaurant business, would be launched in approximately three 
years. 
The Petitioner explained that its next step would be to develop land on its existing commercial 
property to house a temporary warehouse space for its export services business, and to provide 
export contacts and services for U.S.-based medical equipment suppliers and other manufacturers 
wishing to sell their products in China. The Petitioner stated that "daily efforts during phase one and 
two are spent on export operations, property maintenance, and rental administration." 
The Petitioner indicated that it had no employees at the time of filing. Its proposed organizational 
chart shows that the Beneficiary would supervise a vice president of finance (controller) and a vice 
president of operations, who would supervise a director of business development, a director of 
export operations, and a director of property operations, each with their own subordinates. The chart 
indicates that a "marketing creative" employee and a senior sales employee will report to the 
business development director, while the director of export operations will supervise an "export 
negotiations" employee, a "warehouse crew," and an "export person." Finally, the chart shows that 
the director of property operations will oversee a property developer and a "maintenance crew. "3 In 
total, the chart shows at least 12 employees to be hired during "phase two." 
The business plan included a summary of duties and educational requirements for each position, 
indicated that all "phase two" positions would be full-time and filled within one year, and stated that 
the Petitioner expected to pay more than $650,000 in salaries and wages in 2017.4 
The business plan also indicates that the Petitioner anticipates sales of $1,228,000 in 201 7. The 
business plan indicates that the office building, if fully occupied would generate $300,000 in rental 
income annually. Therefore, the financial projections assume that the Petitioner would generate 
$928,000 in income from its warehouse and export services operation. The business plan does not 
explain where the Petitioner derived this income projection. 
The Petitioner does not have a warehouse, but rather stated in its business plan that it will build one 
on its own property prior to offering warehousing and export services to clients. On motion, in 
response to the Director's finding that the Petitioner did not have the physical premises to provide 
warehousing and export services, the Petitioner retreated from its prior claim that it will be building 
a warehouse to commence "phase two" of its business plan. Rather, it stated that its office building 
has storage space that can be used in the short term; that its U.S. parent company "owns a building 
3 All other positions on the chart (15 in all) are identified as "future hires for phase three." These positions include. an 
accountant and administrative position, marketing intelligence employee, client representative for exports, a warehouse 
logistics employee, additional warehouse crew, an architect, a safety inspector, additional maintenance staff, and the 
entire "Hotels, Restaurants & Hospitality" department. 
4 The Petitioner provided proposed wages for the projected workers on p. 47 of the business plan, but the weekly, 
monthly, and annual wages are inconsistent with the stated hourly wages. For example, the Petitioner indicated that 
workers with hourly wages of $11 and $15 would earn annual salaries of $37,440 and $45,760, respectively (rather than 
$22,880 and $31,200). 
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Matter of K-W- LLC 
with a warehouse"5 that the Petitioner can use "as a backup"; that it "can rent additional needed 
space for export purpose"; and, lastly, that an "export business does not necessarily need 
warehousing." 
While we found sufficient evidence that the Petitioner has the physical premises to carry out its 
property management activities, the statements made on motion cast doubt on the Petitioner's claim 
that it plans to immediately build a warehouse and being offering warehousing and export-related 
services, including rental of warehouse space, to U.S. clients. The Petitioner indicates that all 
projected staff in the proposed export and business development departments would be performing 
duties related to that branch of the business. If the Petitioner does not actually intend to carry out 
phase two of its business plan, as described, this change would impact its projected revenue and its 
ability to carry out its hiring plan for the first year of operations, particularly with respect to these 
two departments. The claims made on motion also raise questions regarding the credibility and 
feasibility of "phase two" of the business plan. 
The other employees to be hired during the first year of operations include a vice president of 
finance (controller), the vice president of operations, a director of property operations, a property 
developer, and a maintenance person. As noted by the Director, the vice president of finance would 
be responsible for "daily AP/AR, finance, HR, payroll, and general office work," and would not be 
performing managerial duties as suggested by his job title. The duties attributed to the vice president 
of operations overlap with the Beneficiary's own duties and include overseeing the development and 
growth of the business and creating and implementing business strategies. We cannot determine that 
these subordinates would be performing managerial duties, or that the Beneficiary's other claimed 
managerial subordinates in the export and business development departments would actually be 
hired during the first year. 
On appeal, the Petitioner refers to its organizational chart, highlights its intended expansion during 
"phase three," and asserts that "given the number of employees and the structure of staffing, the 
company is well organized to supports its CEO as an executive position." 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 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. 
As noted, the Petitioner submitted a broad description of the Beneficiary's duties that merely 
paraphrases the statutory definition of executive capacity and does not defined his actual proposed 
5 The Petitioner provided a photograph of a small barn located on the referenced property owned by its parent company. 
The address of this property is listed on the petition as the Beneficiary's residential address. 
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Matter of K-W- LLC 
duties in sufficient detail. While the Petitioner submitted a lengthy business plan identifying several 
phases of development, it is lacking detail regarding its financial projections, and the Petitioner has 
now introduced questions as to whether it would actually carry out phase two of its business plan 
during the initial year of operations. Without that second phase, the Petitioner's operations would 
consist of managing one commercial office building, and the record does not establish how that 
business alone would support an executive position or would require the Beneficiary to spend his 
time primarily on the company's broad policies and goals. Therefore, although the projected 
organizational chart does show the Beneficiary at the head of a complex organizational hierarchy, 
the record as a whole does not support the Petitioner's claim that the chart presents a realistic picture 
of the company's likely structure and staffing levels within one year. 
The Petitioner has consistently stated that the Beneficiary will occupy the senior position in its new 
office, but has not submitted a job description or supporting evidence sufficient to demonstrate that 
he would primarily engage in managerial or executive duties, or that the new office would support a 
managerial or executive position, after the initial year of operations. 
V. BENEFICIARY'S EMPLOYMENT ABROAD 
The next issue to be addressed concerns the Beneficiary's employment abroad with the Petitioner's 
foreign parent company. The Director determined that the Petitioner did not establish that the 
Beneficiary had at least continuous year of full-time employment with a qualifying entity abroad in 
the three years preceding the filing of the petition, or that Beneficiary was employed abroad in a 
managerial or executive capacity. See 8 C.F.R. § 214.2(l)(iii)-(iv). 
On appeal, the Petitioner emphasizes that it previously provided one year of payroll records showing 
the foreign entity paid the Beneficiary for the period July 2015 to June 2016, and that this evidence 
was "sufficient to show the one-year employment requirement." However, as noted by the Director 
in the initial denial decision, the Beneficiary was physically present in the United States during much 
of that one-year period. 
The regulation at 8 C.F.R. § 214.2(l)(l)(ii)(A) defines "intracompany transferee" as: 
An alien who, within three years preceding the time of his or her application for 
admission into the United States, has been employed abroad continuously for one 
year by a firm or corporation or other legal entity or parent, branch, affiliate or 
subsidiary thereof, and who seeks to enter the United States temporarily in order to 
render his or her services to a branch of the same employer or a parent, affiliate, or 
subsidiary .... Periods spent in the United States in lawful status for a branch of 
the same employer or a parent, affiliate, or subsidiary thereof and brief trips to the 
United States for business or pleasure shall not be interruptive of the one year of 
continuous employment abroad but such periods shall not be counted toward 
fulfillment of that requirement. 
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Matter of K-W- LLC 
Further, the regulation at 8 C.F.R. § 214.2(1)(3) requires a petitioner to provide "[e]vidence 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." 
As this petition was filed on March 20, 2017, the Petitioner must show that its claimed parent 
company employed the Beneficiary abroad for one continuous year between March 21, 2014 and 
March 20, 2017. However, Department of Homeland Security (DHS) records show that the 
Beneficiary was physically present in the United States in Bl or B2 status for 732 days (two years 
and one day, accounting for the leap year in 2016), during that three year period.6 
Accordingly, the Petitioner cannot establish that the foreign entity employed the Beneficiary abroad 
for at least one year, and he cannot meet the foreign employment requirement. As noted by the 
Director, it is insufficient to show that the foreign entity paid the Beneficiary's salary during his 
stays in the United States, as periods spent in the United States cannot be counted towards his year 
of employment abroad. 
We will however, withdraw the Director's finding that the Petitioner did not submit sufficient 
evidence to establish that the foreign position was in a managerial or executive capacity. The 
Petitioner's descriptions of the Beneficiary's duties and the foreign entity's staffing structure are 
sufficient to establish by a preponderance of the evidence that he was employed abroad in a 
managerial capacity as defined at section 101(a)(44)(A) of the Act. 
VI. CONCLUSION 
The appeal will be dismissed as the Petitioner has not established that it would employ the 
Beneficiary in a managerial or executive capacity within one year, or that the Beneficiary had at 
least one continuous year of full-time employment abroad with a qualifying organization in the three 
years preceding the filing of the petition. 
ORDER: The appeal is dismissed. 
Cite as Matter of K-W-LLC, ID# 1548280 (AAO Aug. 23, 2018) 
6 The Beneficiary was in the United States on the following dates: 
9