dismissed L-1A Case: Real Estate Development

U.S. Citizenship 
and Immigration 
Services 
MATTER OF T-H-.1-R-E-USA INC. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: DEC.I9.2017 
APPEAL OF CALIFORNIA SERVICE CENTER DECISION 
PETITION: FORM 1-129. PETITION FOR A NONIMMIGRANT WORKER 
The Petitionee a real estate development and investment company, seeks to continue the 
Beneficiary's temporary employment as its chief executive officer (CEO) under the L-1 A 
nonimmigrant classification for intracompany transferccs.
1 
See Immigration and Nationality Act 
(the Act) section 10l(a)(l5)(L). 8 U.S.C. § 1101(a)(l5)(L). The L-lA classification allO\vs a 
corporation or other legal entity (including its afliliatc 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 California Service Center approved the petition. but later revoked the approval 
following the issuance of a notice of intent to revoke (NOIR). The Director concluded that the 
record did not establish that the Beneficiary would be employed in a managerial or executive 
capacity under the extended petition. 
On appeaL the Petitioner submits additional evidence and asserts that the Director misinterpreted 
ce11ain evidence that it previously submitted. The Petitioner contends that it has established that the 
Beneficiary will act in an executive capacity under the extended petition. 
Upon de novo review. \Ve will dismiss the appeal. 
I. LECiAL FRAMEWORK 
To establish eligibility for the L-1 A nonimmigrant visa classification for a new oftice. a qualifying 
organization must have employed the beneficiary ··in a capacity that is manageriaL executive. or 
involves specialized knowledge," for one continuous year within three years preceding the 
beneficiary's application for admission into the United States. Section IOI(a)(15)(L) of the Act. In 
addition, the beneficiary must seck to enter the United States temporarily to continue rendering his 
1 
The Petitioner previously filed a ""new office·· petition on the Beneficiary's behalf which was approved for the period 
June 2. 2014. to June I. 2015. A ""new otlice" is an organization that has been doing business in the United States 
through a parent, branch. aftlliate. or subsidiary for less than one year. 8 C.F.R. ~ 214.2(1)( I )(ii)(F). The regulation at 
8 C.F.R. ~ 214.2(1)(3 )(v)(C) allows a ""new office" operation one year within the date of approval of the petition to 
support an executive or managerial position. 
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Mall er o(T-H-.J-R- E-USA Inc. 
or her services to the sam e e mplo yer or a s ubsidiar y o r atTiliate thereof in a m anagerial or exe cutive 
capacity. /d. 
A petitioner see king to ext end an L-1 J\ petition that involved a n ew office mu st submit a statement 
of the beneficiar y"s dutie s during the prev ious year and under the extended petition : a s tatement 
describing the s taffing of the new oper ation and evid ence of the numbers and types of positi ons held: 
evid ence of its financial status: evidenc e that it has been doing business for the previous year: and 
evidence that it maintain s a qualif ying relationship with the beneficiar y's foreign employer. 
8 C.F.R. § 2 14.2(1)(14)(ii ). 
Und er U.S. Citizenship and Immigrati on Services (USCIS) regulations, the approval of an L-1 A 
petition may be revoked on notice und er six specific circumstanc es . 8 C.F.R . § 2 14.2(1)(9 )(iii)(A). 
To properl y revo ke the appr oval of a petition , a dir ector must iss ue a notice of intent to revoke that 
contains a d etailed statem ent of the grounds for the revocation and the time period allowe d for 
rebuttal. 8 C. F. R. § 214.2(1)( 9)(iii)(B) . 
II. U.S . EMPLOYM ENT IN A N EXEC UTIV E CAP AC ITY 
The 
sole issu e is w hether the Petition er demonstrat ed that the Beneficiary would he empl oye d in an 
exec utive cap acity under the e xtended petition. 2 
The s tatute defines an '·exe cuti ve cap acit y .. as an ass ignment within an organization in which the 
emplo yee prim arily direct s the manag ement of the orga nization or a major component or function of 
the o rganizati on: e stablish es the goals and policie s of the org anization. component. or function: 
exercises wide latitude in discretionary decision-m aking: and receives only general supervi sion or 
direction from higher-level exe cuti ves. the board of directors . or stockhold ers o f the org anization . 
Section 10l (a)(44)(B ) of the A ct. 
If staffing level s a re used as a factor in determining whether an individual is acting in an executive 
capacity. USC IS takes into account the reas onable needs of the organization , in light of the overall 
purpo se and stage of de ve lopment of the organization . Se e secti on I 0 I (a)(44 )(C) of the Act . 
The Director concluded that the evid ence was insufficient to demonstrate that the Beneficiary 
prim arily perform s executiv e duties and revoked the approval of the petition. 3 The Director pointed 
to the insuftici ent staffin g 
of the organi zation as of the date of the NOIR, noting that the Petitioner 
2 The Petitioner does not claim that the Bene1~ c i a r y will be employed in a m anagerial capac ity. Therefore. we restrict 
our analysis to whether the Benefi ciary will be employed in an executive capacity. 
' We note that the petition was originally filed on April4. 201 5. approved on May 18, 2015. but later revoked on May 
25, 20 17. following the issuance ofth c NOIR in .July 2016. The NOIR was issued following a September 201 5 site visit 
to the Petitioner's asserted office location in California. The USCIS site v isit revea led that no employees of 
the Petitioner \vere physically present at this claimed oftice location. The NOIR allowed the Petitioner an opportunity to 
address the site visit and to submit additional evidence in support of its claim that the Beneficiary would be employed in 
an executive capacity. 
2 
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Malter of'T-!1-J-R-E-USA inc. 
had only two employees, including the Beneficiary. at that time. The Director concluded that the 
Petitioner had insufficient statling to support the Beneficiary as an executive and to relieve her hom 
primarily performing non-qualifying operational tasks. 
On appeaL the Petitioner asserts that it employs additional individuals not ref1ccted in its previously 
submitted California quarterly wage tax documentation. and that it has sufticient operations and 
employees to suppmi the Beneficiary in an executive capacity. 
When examining the executive capacity of the Beneficiary. we will review 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 \vhcther such duties are in an executive 
capacity. See 8 C.F.R. § 214.2(1)(3)(ii). Beyond the required description of the job duties. USCIS 
examines the claimed executive capacity of a beneficiary. 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 \viii contribute to understanding a beneficiary's actual duties and role in a business. 
Accordingly. we will discuss evidence regarding the Beneficiary's job duties along \Vith evidence of 
the nature of the business and its staffing levels. 
A. Duties 
Based on the definition of executive capacity. the Petitioner must t shO\v that the Beneficiary will 
perform certain high-level responsibilities. Champion /Yorhl. Inc. v. IN,\'. 940 F.2d 1533 (9th Cir. 
1991) (unpublished table decision). Second. the Petitioner must prove that the Beneficiary wi II be 
primarily engaged in executive duties. as opposed to ordinary operational activities alongside the 
Petitioner's other employees. See Famdy Inc. v. USC/S'. 469 F.3d 1313. 1316 (9th Cir. 2006): 
Champion World. 940 F.2d 1533. 
The Petitioner stated that it was established in 2013 to explore real estate development opportunities 
in the United States. including "constructing and selling real estate properties" and providing 
'·consultation services on [foreign students] in the US." The Petitioner provided supporting evidence 
that it had purchased eight acres of land in California. in August 2014 and asserted that it 
planned on building single family homes on this land. In response to the NOIR. the Petitioner 
explained that this development plan had been abandoned and that the eight-acre lot was sold shortly 
after approval of the petition due to complications in the planned development. The Petitioner stated 
that it later purchased a commercial rental property in August 2015 and indicated that it rents and 
manages this property. The Petitioner asserted that it was still diligently exploring further land 
development opportunities. 
In response to the NOIR. the Petitioner provided duty descriptions specific to the Beneficiary·s tasks 
as of the date of the initial petition and her duties at the time of the NOIR response. These duty 
descriptions \vere largely identical. The Petitioner stated that the Beneficiary was responsible for 
··setting up the company's strategic goals. objectives. and policies and overseeing thclir] 
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Matter oj"T-H-.J-R-E- USA Inc. 
implementation:· including reviewing annual reports finalized by the company's financi al and 
administrative man agers. The Petitioner indic ated that the Beneficiary was tasked with supervi sing 
and monitoring ··the daily operation of the company to assure profit abi lity and growth:· including 
supervising and overseeing subordinate mana ge rs .. on the operation of the company:· The Petition er 
also explained that the Beneficiary was responsible for participating in .. key clients' meeting s and 
impmiant social activities on behalf of the company:· liaising with the parent company on a regular 
basis regarding the company" s plannin g and business strategies. hiring. tirin g, and promotin g 
employees of the company, and '·plannin g and controlling the company's financial activities:· 
In addition, the Petitioner provided a "'Work Summary & Three-Ye ar Plan .. which set forth a numb er 
of the Beneficiary' s duties and accomplishm ents. For instance. this document indicated that the 
Beneficiary had supervis ed the completion of •·staff manuals and manage ment policies for each 
department .... enhanced company managem ent reg ulation ... made decisions on .. thorny problem s. 
and implementation on investme nts:· and established a ··recruiting plan ... 
As a preliminary matt er, we note that the Petitioner has provided near ly identical dut y description s 
for the Benefici ary at the time of the petition and late r in response to the NO IR. This lea ves question 
as to the credibilit y of the provided dut y desc riptions , considering the petition and NOIR respo nse 
were over a year apart and the Petitioner asserts that the company had significantly modified its 
business plan durin g this time. 
Regardless. the Petitioner has submitted vague duty descriptions for the Beneficiary that do not 
convey her actual day-to-day tasks or establish that she would devote her time primarily to executive 
duti es. The Beneficiary ' s dut y description s include severa l general duties that could apply to any 
exec utive acting in any business or indu stry a nd they do not pro vide insight into the actual natur e of 
her role. For example. the Petitioner stated that the Beneficiary supervises and monitors '·the daily 
operation of the company to assure profit ab ility a nd growth.'' supervises and oversees subordinate 
managers "on the operation of the company .·· participates in ·'key clients' meetings and import ant 
social activities on behalf of the company.'' liaises with the parent company on a regular basis 
regarding the company' s planning and busine ss strategies, hires. tires, and promotes employ ees, 
plans and control s the company's financi al activiti es, makes difficult decisions. and enhances 
company .. mana gement regulation." 
The Petitioner provided few examples and little supporting docum entation to dem onstrate the 
Beneficiary's perform ance of executive leve l duties, such as the ope rations she supervises, key 
hiring decisions she has made, strategic goals and objectives she has implemented. financi al 
decisions she has mad e. financial activitie s 
and operations she oversaw , or difficult decision s s he 
made on a daily basis. Although we acknowledge that the Petition er has submitted evidence 
indicating that the Petitioner likely sold its e ight-acr e parcel of land in Californi a. and 
purchased another commercial rental prop erty. these transaction s arc not reflective of what 
exec utive-level tasks and decisions the Benefici ary makes on a dail y basis. The Petitioner has not 
clearly articulated what qualifying dutie s the Beneficiary perform s on a daily basis. Indeed . this lack 
of detail as to her execu ti ve- leve l duties is questionable given that the Beneticia ry has been acting in 
4 
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l'vfatter q(T-H-.l-R-E- USA Inc. 
this capacity in the United States since June 2014. Specifics are clearly an important indication of 
whether a beneficiary's duties arc primarily executive or managerial in nature. otherwise meeting the 
definitions would simply be a matter of reiterating the regulations. Fed in Bros. Co .. Lid v. Sava. 
724 F. Supp. 1103. 1108 (E.D.N. Y. 1989). af(d. 905 F.2d 41 (2d. Cir. 1990). 
To the extent that the Petitioner does provide detai I regarding the Beneficiary's duties. these 
specifies reflect her performance of non-qualifying operational tasks. For instance. the Petitioner 
submits several real estate purchase documents. title insurance letters and documents, and other 
related transactional documents. all which bear the Beneficiary's name and signature. The record 
includes few details and little documentation indicating the Beneficiary's delegation of non­
qualifying tasks to subordinates. In contrast. the Petitioner states and provides supporting 
documentation and photographs reflecting the Beneficiary performing duties consistent with a sales 
representative or real estate agent. including visiting several potential real estate projects in the 
area. attending real estate seminars. meeting with local government agents. and 
visiting several schools across the country. The record includes tew examples of her delegating 
these operational tasks to subordinates. let alone her primarily delegating these tasks to a group of 
subordinate managers. 
Whether the Beneficiary is an executive employee turns on whether the Petitioner has sustained its 
burden of proving that his or her duties are ''primarily'· executive. See sections 101 (a)( 44 )(A) and 
(B) of the Act. Here. the Petitioner does not document what proportion of the Beneficiary's duties 
would be executive functions and what proportion would be non-qualifying. The Petitioner lists the 
Beneficiary's duties as including both executive tasks and administrative or operational tasks. but 
does not quantify the time the Beneficiary spends on these different duties. This lack of 
documentation is important because several of the Beneficiary ' s daily tasks , as we have discussed. 
do not fall directly under executive duties as defined in the statute. For this reason. we cannot 
determine whether the Beneficiary is primarily performing the duties of an executive. See /Kt/ 1 US'. 
Inc. v. US. Dept. of.Justice, 48 F. Supp. 2d 22, 24 (D.D.C. 1999). 
Even though the Beneficiary holds a senior position within the organization. the fact that she will 
manage or direct a business docs not necessarily establish eligibility for classification as an 
intracompany transferee in an executive capacity within the meaning or section I 0 I (a)( 44) of the 
Act. By statute . eligibility for this classification requires that the duties of a position he ''primarily"' 
managerial in nature. Sections IOI(A)(44)(A) and (B) of the Act. 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: however. the position descriptions alone are 
insufficient to establish that her actual duties would be primarily executive in nature. 
B. Staffing and Operations 
The Petitioner claimed to have five employees at the time of tiling and provided an organizational 
chmt reflecting that the Beneficiary oversaw a marketing and sales director , a financial department 
manager_ an ''admin depmtment manager, .. and an architect. In turn. the chart indicated that the 
A1alfer ofT-H-.1-R-E-USA Inc. 
marketing and sales director supervised a sales representative. the financial department manager 
oversaw an accountant and the admin department manager supervised an ''IT specialist and admin 
assistant:· The chart also showed several positions ··to be hired:· including a marketing specialist. 
an engineer. and a legal support employee. A corresponding State of California quarterly wage 
report for the first quarter of 2015 reflected that the company had paid wages to five employees. 
including the Bcndiciary. marketing and sales director. admin manager. IT specialist and admin 
assistant. and architect. 
In the NOIR issued in July 2016. the Director requested that the Petitioner provide updated evidence 
of its staffing levels and organizational structure. In response. the Petitioner submitted an updated 
organizational chart which identified a total of seven employees by name. The chart indicated that 
the Beneficiary supervised a marketing and sales director and a financial manager. who in turn. 
supervised an accountant. This organizational chart also included several positions .. to be hired." 
including a .. planners specialist," an investment and development director and a subordinate market 
researcher. a ·'legal support" employee. a .. property dep. Director." and an administrative assistant. 
The chart also indicated that the company employed an equipment maintenance employee. 
engineering technician. and a landscape and maintenance employee subordinate to the vacant 
property director position. 
The Petitioner further submitted California quarterly wage reports for the first and second quarters of 
2016 reflecting that it had paid wages only to the Beneficiary and the claimed marketing and sales 
director. 
The submitted evidence indicates that the Petitioner was. and is. not sufficiently stafTed to support 
the Beneficiary in an executive capacity. For instance. as of the date of the NOIR. the Petitioner 
asserted that it employed seven employees. including the Beneficiary. Hmvever. state quarterly tax 
returns tfom this same period indicate that the Petitioner only paid \\ages to two employees. On 
appeal, the Petitioner contends that the equipment maintenance employee. engineering technician. 
and landscape and maintenance employee are not rellected in the state quarterly wage reports for the 
first and second quarter of 2016 because ·'these three employees \Vere paid by cash and were not 
listed on the payroll." Hmvever. the Petitioner does not substantiate its assertion with documentary 
evidence shmving that it has been paying regular \vages to these operational employees. 
In addition. the Petitioner also asserts that the financial manager and accountant are not reflected in 
state quarterly wage reports because they are independent contractors. However. again. the 
Petitioner did not provide sufficient documentary evidence to corroborate this assertion. such as 
evidence reflecting payment to these professionals. \Vithout this evidence. the Petitioner has not 
properly supported its assertion that these independent contractors can be considered employees and 
subordinates of the Beneficiary. 
Without sutlicient subordinate employees. 1t ts not clear \Vho is relieving the Beneficiary from 
primarily performing non-qualifying operational duties. The Petitioner does not provide 
documentary evidence indicating that the Beneficiary delegates such duties to subordinates. As 
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.Muller ofT-H-.J-R-1:-USA Inc. 
noted, this lack of evidence is particularly questionable since the Beneficiary has been acting in her 
asserted capacity since June 2014, approximately three years prior to the current appeal. Further, the 
same lack of evidence is apparent with respect to the only other employee confirmed in the 
Petitioner's state quarterly tax returns as of the date of the NOIR, the marketing and sales director. 
Specifically, there is little documentary evidence of this employee's performance of duties for the 
Petitioner. The Petitioner states that the marketing and sales director is responsible for marketing 
and sales, marketing strategies, negotiations, and for "formulating standards for the sales starr.·· Not 
only are these duties overly vague, they arc questionable since the Petitioner has not demonstrated 
that it has marketing or sales staff: and the Petitioner provides no detail or documentation as to this 
employee's actual day-to-day tasks. In fact, a document specific to a ne\v commercial real estate 
project being explored by the Petitioner dated in April 2017 lists its claimed marketing and sales 
director as a representative of· As such. one of the few supporting documents 
relevant to the Beneficiary's only documented subordinate raises questions regarding the identity of 
that subordinate's actual employer. 
Furthermore. the Petitioner also provided cont1icting statements in suppot1 of the petition. indicating 
in its ·'Work Summary & Three-year Plan" document that it had hired ''three skilled technicians 
(measured engineer. traffic engineer, and civil engineer) and three administrator [sic] (in sales 
department, operation department. and engineering technology department)_·· These employees are 
not reflected in any of the various organizational charts. nor is there any documentary evidence of 
their employment. The Petitioner must resolve this inconsistencies and discrepancies in the record 
with independent. objective evidence pointing to \Vhere the truth lies. 1\,faller o/Ho, 19 I&N Dec. 
582,591-92 (BIA 1988). 
The Petitioner has also not substantiated that it is sufficiently operational to support the Beneficiary 
in an executive capacity. As \Ve have noted. the Petitioner's IRS Form 1120 reflects that the 
company only earned approximately $40,000 in revenue in 2015. rurther. the Petitioner 
acknowledges that its only source of income is from renting one commercial property. The 
Petitioner does not provide documentary evidence of this income or any other evidence of revenue.
4 
We acknowledge that the Petitioner has submitted evidence relevant to 2017. indicating that it is 
currently investigating a commercial real estate project. However. the Petitioner's current activities 
cannot demonstrate that it was sufficiently operational as of the date of the petition, and as or the 
date of the NOlR. to suppot1 the Beneliciary in an executive capacity. 
The Petitioner's limited operations leave question as to its claimed stafting and staffing projections. 
We note that the Petitioner has existed since 2013 and that the Beneficiary has been acting in her 
capacity as CEO since 2014: hO\vever, the lack of operations and staffing indicate that the Petitioner 
has never become sufticiently operational atter its one year as a new office as necessary to support 
4 
We acknowledge that the Petitioner provided an agreement dated in March 2015 with a company called 
indicating that the Petitioner would recruit torcign students on behalf of this organization. However. the 
Petitioner has not specified or documented any revenue it gained from this relationship. Further, the Petitioner has not 
detailed who provides, or would provide, the services outlined in the agreement. 
Matter ofT-H-.1-R-E-USA Inc. 
the Beneficiary in an executive capacity. The regulation at 8 C.F.R. § 214.2(1)(3)(v)(C) only allows 
the intended U.S. operation one year within the date of approval of the petition to support an 
executive or managerial position. There is no provision in USCIS regulations allO\ving for an 
extension of this one-year period. If the business docs not have the necessary stat1ing or operations 
after one year to sufficiently relieve the Beneficiary from performing operational and administrative 
tasks, the Petitioner is ineligible for an extension. Further. we note that the Petitioner must establish 
that all eligibility requirements for the immigration benefit have been satisfied from the time of the 
filing and continuing through adjudication. 8 C.F.R. § 103.2(b)(l ). 
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 
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 ofthe organization." !d. 
Here. even though the Beneficiary is a high level employee, the Petitioner has not established that. as 
of the date of filing, she was primarily concerned with the broad policies and goals of the 
organization. that the day-to-day management rested with a subordinate tier of management or that 
she would be relieved from substantial involvement in the day-to-day operations of the business. As 
discussed, the Petitioner did not consistently or sut1iciently describe the Beneficiary's duties and we 
cannot determine that her role would primarily involve executive-level tasks. Further. the Petitioner 
submits evidence indicating that the Beneficiary will be involved in all operational matters of the 
business and it has submitted little evidence to indicate that she will delegate operational tasks to 
subordinates. As such. the evidence does not demonstrate that the Beneficiary vvould be employed 
in a qualifying executive capacity. 
III. CONCLUSION 
The appeal must be dismissed as the Petitioner did not establish that it \Viii employ the Beneficiary 
in an executive capacity under the extended petition, as claimed. 
ORDER: The appeal is dismissed. 
Cite as lvfatter olT-H-J-R-1;:_'-USA. Inc., ID# 771060 (AAO Dec. 19. 2017)