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: MAY 22,2018 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a real estate development, commercial rental, and export services company, seeks to 
continue the Beneficiary's employment as its chief executive officer under the L-1 A nonimmigrant 
classification for intracompany transferees. 1 See Immigration and Nationality Act (the Act) section 
lOl(a)(IS)(L), 8 U.S.C. § llOJ(a)(IS)(L). TheL-IA classification allows a corporation or other legal 
entity (including its aftiliate 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 on multiple grounds. The Director 
concluded that the Petitioner did not establish that: (I) the Beneficiary was employed abroad for one 
continuous year in the three preceding its initial new oftice petition; (2) the Beneficiary acted in a 
managerial or executive capacity abroad; or (3) the Beneficiary would act in a managerial or 
executive capacity in the United States. 
On appeal, the Petitioner asserts that the Beneficiary was employed for one continuous year abroad 
and points to submitted foreign employer payroll documentation. Further, the Petitioner contends 
that the Director abused her discretion in determining that the Beneficiary did not act in a managerial 
or executive capacity abroad. The Petitioner also states that the Director erred by not considering 
the Beneficiary's eligibility as an executive launching a new office in the United States. 
Upon de novo review, we will dismiss the appeal. 
I. LEGAL FRAMEWORK 
To establish eligibility for the L-1 A nonimmigrant visa classification, a qualifying organization must 
have employed the beneficiary in a managerial or executive capacity lor one continuous year within 
three years preceding the beneficiary's application for admission into the United States. 8 C.F.R. 
1 The Petitioner previously filed a "new office" petition on the Beneficiary's behalf which was approved for the period 
January 5, 2017, until January 4, 2018. A "new office" is an organization that has been doing business in the United 
States through a parent, branch, affiliate, 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. 
Maller of K- W- LLC 
§ 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. !d. 
A petitioner seeking to extend an L-IA petition that involved a new office2 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 
evidence that it . maintains a qualifying relationship with the beneficiary's foreign employer. 
8 C.F.R. § 214.2(1)(14)(ii). 
II. U.S. EMPLOYMENT IN AN EXECUTIVE CAPACITY 
The first issue to be addressed is whether the Petitioner has established that the Beneficiary would 
act in an executive capacity under the extended petition. The Petitioner does not claim that the 
Beneficiary would be employed in a managerial capacity. Therefore, we restrict our analysis to 
whether the Beneficiary would be employed in an executive capacity. 
The statute defines an "executive capacity" as an assignment within an organization in which the 
employee primarily directs the management of the organization or a major component or function of 
the organization; establishes the goals and policies of the organization, component, or function; 
exercises wide latitude in discretionary decision-making; and receives only general supervision or 
direction from higher-level executives, the board of directors, or stockholders of the organization. 
Section IOI(a)(44)(B) of the Act. 
When examining the executive capacity of a given 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 whether 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, we 
examine 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. Accordingly, we will discuss evidence regarding 
the Beneficiary's job duties along with evidence of the nature of the Petitioner's business, its staffing 
levels, and its organizational structure. 
2 As noted, a "new office" petition was filed by the Petitioner on behalf of the Beneficiary and approved for the period 
January 5, 2017. to January 4, 2018. In the current Fonn 1-129 filed on June 19,2017, also denoted as a new office 
petition, the Beneficiary's requested period of employment is !Tom January 5, 2017, to January 4, 2020. Since a new 
office petition relevant to the Petitioner and Beneficiary was already approved for one year, the two additional years 
requested by the Petitioner in the current petition are, in effect, a new office extension. 
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Mauer of K- W- LLC 
A. Duties 
Based on the definition of executive capacity, the Petitioner must tirst show that the Beneficiary will 
perform certain high-level responsibilities. Champion World, Inc. v. INS, 940 F.2d 1533 (9th Cir. 
1991) (unpublished table decision). Second, the Petitioner must prove that the Beneficiary will be 
primarily engaged in executive duties, as opposed to ordinary operational activities alongside the 
Petitioner's other employees. See Family Inc. v. USCIS, 469 F.3d 1313, 1316 (9th Cir. 2006); 
Champion World, 940 F.2d 1533. 
The Petitioner stated that the Beneficiary would be tasked with establishing "a new office in the 
United States and developing the Company's U.S. real estate development and export businesses." 
The Petitioner indicated that the Beneficiary would hire and oversee new employees, make land 
investment and development decisions, and investigate the medical device market in the United 
States. 
The Petitioner explained that the Beneficiary would devote 25% of his time to "making and 
implementing decisions regarding business strategy, business development, and policy," including 
selecting the company's investment projects. The Petitioner stated that the Beneficiary would spend 
20% of his time "negotiating all contracts" and another 20% "overseeing [the Petitioner's] export 
services branch." In addition, it indicated that the Beneficiary would be responsible 20% of the time 
for "overseeing [the Petitioner's] property development branch," including developing ideas to 
generate income. It also explained that the Beneficiary would devote 10% of his time to overseeing 
the recruitment of all positions within the organization, including vice presidents of finance and 
operations. Lastly, the Petitioner stated that the Beneficiary would spend 5% of his time 
"coordinating public relations." 
The Petitioner has not submitted a sufficiently detailed duty description that describes his day-to-day 
executive-level duties or credibly establishes that he would devote his time primarily to qualifying 
tasks. The Beneficiary's duty description includes several generic duties that could apply to any 
executive acting in any business or industry and they do not provide insight into the actual nature of 
his role. The Petitioner provided insufficient examples and little supporting documentation to 
demonstrate the Beneficiary's performance of qualifying duties, such as decisions he made regarding 
business strategy, contracts he negotiated, public relations he coordinated, and specific tasks he 
performed while overseeing the projected export services and property development branches. 
Specifics are clearly an important indication of whether a beneficiary's duties are primarily 
executive or managerial in nature, otherwise meeting the definitions would simply be a matter of 
reiterating the regulations. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1103, 1108 (E.D.N.Y. 1989), 
qfj"d, 905 F.2d 41 (2d. Cir. 1990). Also, we note that the Petitioner's statements and the submitted 
evidence demonstrate that the export services and property development branches did not exist when 
the petition was filed. 
To the extent that the Beneficiary submits detail and documentation regarding the Beneficiary's 
daily duties, this evidence is reflective of his involvement in non-qualifying operational tasks. First, 
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Matter of K-W- LLC 
we acknowledge that the Petitioner likely purchased a commercial office property in Massachusetts. 
However, the Petitioner submits documentation indicating the Beneficiary has been involved in 
numerous non-qualifying operational level duties related to the maintenance of this commercial 
property, such as arranging and paying for fire prevention, heating and air conditioning (HV A C), 
landscaping, and snow removal services. The Petitioner also provided a letter from the Beneficiary 
dated after the petition was filed, that reflects his response to a tenant regarding their potential early 
termination of a lease. The Petitioner acknowledges that it has no employees beyond the 
Beneficiary. As such, the evidence demonstrates that the Beneficiary has not been primarily relieved 
from performing non-qualifying duties as of the date of the filing of the petition. In contrast, the 
Petitioner provides few examples and little documentation to substantiate the Beneficiary's day-to­
day executive level tasks, beyond a singular decision to purchase a commercial property, which does 
not shed light on the duties he would perform under the extended petition. 
Whether a beneficiary is an executive employee turns on whether the petitioner has sustained its 
burden of proving that their duties are "primarily" executive. See section 10l(a)(44)(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 submits evidence 
indicating the Beneficiary's substantial involvement in operational level tasks that do not fall 
directly under executive duties as defined in the statute, but does not quantifY the time he spends on 
these duties. For this reason, we cannot determine whether the Beneficiary is primarily performing 
the duties of an executive. See /KEA US, Inc. v. U.S. 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 he will 
manage or direct a business does not necessarily establish eligibility for classification as an 
intracompany transferee in an executive capacity within the meaning of section l 0 l (a)( 44)(B) of the 
Act. By statute, eligibility for this classification requires that the duties of a position be "primarily" 
executive in nature. !d. 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 insutlicient to establish that his actual duties would be 
primarily executive in nature. 
B. Staffing 
If staffing levels are used as a factor in determining whether an individual is acting in an 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 IOI(a)(44)(C) of the Act. 
In denying the petition, the Director emphasized that the Petitioner submitted evidence only relevant 
to launching a new office and pointed to the fact that it had no employees as of the filing of the 
petition. The Director determined that it was likely that the Beneficiary was primarily engaged in 
non-qualifying operational duties. On appeal, the Petitioner contends that the Director erred when 
she did not adjudicate the matter as a new office petition. The Petitioner acknowledges that it is not 
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Matter of K-W- LLC 
doing business and that it has no employees beyond the Beneficiary. It further asserts that it was still 
eligible for a new office petition as of the date of the filing of the petition and states that the Director 
should have considered its projections and business plans. The Petitioner also claims that the 
operational duties of the business are being performed by independent contractors and indicates that 
the Director did not properly articulate why the Beneficiary did not qualify as an executive. 
As a preliminary matter, the Petitioner is not eligible for a second year as a new office. As noted, 
the Petitioner asserts that as of the filing of the petitioJ;J, in June 2017, it was eligible to tile another 
new office petition on behalf of the Beneficiary. However, as discussed previously, the Beneficiary 
was already approved pursuant to a new office petition from January 5, 2017, until January 4, 2018. 
The fact that the Petitioner filed a petition· for a three year period of employment, during the new 
office period, does not entitle it to a second year as a new office. The regulation at 8 C.F.R. 
§ 214.2(l)(3)(v)(C) only allows the "new otlice" operation one year within the date of approval of 
the petition to support an executive position. There is no provision in USCIS regulations that allows 
for an extension of this one-year period. If a business does not have the necessary staffing to 
sufficiently relieve the beneficiary from performing operational and administrative tasks, the 
petitioner is ineligible for an extension. 
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). As 
such, the relevant organizational chart to analyze is that existing upon the filing of the petition. The 
evidence reflects that the Petitioner had no employees subordinate to the Beneficiary at the time of 
filing. Further, the Petitioner submitted evidence reflecting the Beneficiary's substantial 
involvement-in non-qualifying operational level duties specific to the maintenance of a commercial 
property. There is no evidence that the Beneficiary is delegating these duties to subordinates and its 
future hiring plans are not ·relevant to establishing his executive capacity as of the date the petition 
was filed. 
Furthermore, the Petitioner asserts on appeal that the Beneficiary is relieved from performing non­
qualifying duties by subordinate independent contractors. However, the Petitioner has not 
adequately described or documented this assertion. For instance, the Petitioner has not specifically 
identified these independent contractors, their duties, or indicated how they relieve the Beneficiary 
from primarily performing non-qualifying tasks. We acknowledge that the Petitioner has submitted 
evidence indicating that the Beneficiary signed agreements with various contractors to perform 
services on its commercial property, such as tire prevention and sprinkler, HVAC, snow removal, 
and landscaping contractors. However, the record indicates that the Beneficiary is directly involved 
in ordering and arranging these services as his name is included on the invoices and checks paid to 
these contractors. These duties are not consistent with an executive as defined by the regulations, 
including directing subordinate management and setting goals and policies for the organization, but 
reflective of an operational level employee providing property management services. 
Therefore, the evidence does not indicate that, as of the tiling of the petition, the Beneficiary was 
relieved from performing non-qualifying operational tasks and that he primarily spent his time 
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Mauer of K- W- LLC 
focusing on executive level duties. An employee who "primarily" performs the tasks necessary to 
produce a product or to provide services is not· considered to be "primarily" employed in an 
executive capacity. See, e.g., section !O!(a)(44)(B) of the Act (requiring that one "primarily" 
perform the enumerated executive duties); Mauer of Church Scientology Int '/, 19 I&N Dec. 593, 
604 (Comm'r 1988). 
As noted, the Petitioner asserts that the Beneficiary qualifies as an executive. 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'! 0 I (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 tor 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. 
As discussed, the Petitioner has no employees that would allow the Beneficiary to primarily focus on 
the broad goals and policies of the organization rather than the day-to-day operations of the business. 
Submitted documentation indicates that the Beneficiary was engaged in a wide range of non­
qualifying activities. and it has not documented that the Beneficiary has been relieved of these tasks. 
Likewise, the Petitioner does not credibly describe and document the Beneficiary's day-to-day 
executive level duties. For these reasons, the Petitioner has not established that the Beneficiary 
would act in an executive capacity as of the date of the petition's filing. Again, 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 position. There is no provision in USCIS regulations 
allowing for an extension of this one-year period. If the business does not have the necessary 
staffing to relieve the Beneficiary from performing operational and administrative tasks, the 
Petitioner is ineligible tor an extension. For these reasons, the appeal must be dismissed. 
Ill. THE BENEFICIARY'S FOREIGN EMPLOYMENT 
The Director also denied the petition concluding that the Petitioner did not establish the Beneficiary was 
employed abroad for one continuous year in a managerial or executive capacity. In denying the 
petition, the Director pointed to the Beneficiary's substantial time in the United States, or 272 days, 
during the three years prior to the filing the its initial new office petition. With respect to the 
Beneficiary's asserted executive capacity abroad, the Director determined that his duties were overly 
vague and noted discrepancies in the submitted foreign organizational chart. 
On appeal, the Petitioner acknowledges the Beneficiary's presence in the United States for a substantial 
period during the three years preceding its initial new office petition, but asserts that he was acting as a 
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Mauer of K-W- LLC 
foreign executive while in the United States. In addition , the Petitioner contends that the Director did 
not explain why the Beneficiary 's foreign duties are vague. It also asserts that the Director abused her 
discretion by concluding without explanation that it "appeared" his subordinates were not managers. 
Following a review of the evidence, we concur with the Director' s decision that the Petitioner has not 
established that the Beneficiary was employed for one continuous year abroad in a manageria l or 
executive capacity. The Petitioner provides no supporting documentation to substantiate that the 
Beneficiary was performing executive level duties abroad while in the United States. In fact, the 
Petitioner provides a foreign "Letter of Appointment" indicating that the Beneficiary was appo inted to 
establish the U.S. company in March 2014. The letter further states that the Beneficiary would be "fully 
responsible" for this task and reflected that subordinates were taking over his role as vice general 
manager abroad. Likewise, the Petitioner submits several foreign employer project documents and 
contracts dating from 2014 to 2016 including the Beneficiary's name. However, these documents reter 
to the Beneficiary as "project manager," not by his claimed executive title. The Petitioner must reso lve 
these discrepancies in the record with independent, objective evidence pointing to where the truth 
lies. Maner of Ho, 19 I&N Dec. 582, 591-92 (BIA 1988). 
In addition , although the Petitioner provides several foreign bid documents and contracts bearing the 
Beneficiary ' s name, the nature of the Beneficiary 's involvement in these matters is not specifically 
described or documented. As such, we disagree with the Petitioner' s assertion 
that the Beneficiary's 
foreign duties were properly described and established. We do not find that the Director acted 
arbitrarily in concluding that the Beneficiary's foreign duties were overly vague. For the reasons 
discussed above , we find that the Petitioner has not demonstrated the Benefi ciary was continuously 
employed abro ad in a managerial or executive capacity for one year during the three years prior to 
its initial new office petition. 
IV. ADDITIONAL GROUNDS FOR DENIAL 
We will also enter additional grounds for denial. 'The submitted evidence does not dem onstrate that 
the Petitioner has a qualifying relationship with the Beneficiar y's former foreign emplo yer. See 
8 C.F.R. § 214 .2(1)( l)(ii) (G). The Petitioner states in the Form I-129 that it is wholly owned by the 
U.S. company and provide s 
a s upporting operating agreement and other docum entation 
supporting this assertion. The Petitioner further indicated that is 97% owned by the 
foreign employ er thereby estab lishing a qualifying relationship between it and the foreign emp loyer. 
The Petitioner also subm itted supportin g documentation relevant to including 20 15 and 
2016 IRS Forms -1120 U.S . Corporate Income Tax Returns indicating that this entity was earning 
income and paying wages. However, the Petitioner provided no such documen tation specific to its 
operations. When the Director inquired as to the relevancy of in the request for evidence 
(RFE), the Petitioner responded with documentation indica~ing that had been dissolved , 
stated that this cop1pany had been "incorp orated by accident," and asserted that "the existence of 
is irrelevant to the ownership and control relationship between the U.S. and foreign entities. " 
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Matter ofK-W- LLC 
It is not clear to us how a corporation could be incorporated by accident. Further , the exi stence of 
is very relevant to whether a qualifying relationship exists in this matter, as the Petitioner 
asserts it is wholly owned by this entity. As such, the dissolution of this entity leaves substantial 
que stion as to the Petitioner ' s ownership. The Petitioner submits no supporting documenta tion to 
demonstrate its ownership following the apparent dissolution of its sole owner . For these reasons, 
the Petitioner has not established that it has a qualifying relationship with the fo reign employer. 
Further, the Petitioner acknowledges on appeal that it is not doing business and it provides no 
supporting documentation to substantiate that it is doing busines s. A petition er must demonstrate 
that it is engaged in the " regular , systematic, and continuous provision of goods or service s and does 
not represent the mere presence of an agent or office in the United States. " 8 C.F.R. 
§ 214.2(1)( I )(ii)(H). 
For these additional reasons, the petition cannot be approved . 
V. CONCLUSION 
The appeal must be dismis sed as the Petitioner did not establish that: (1) the Beneficiary would be 
employed in an executive capacity in the United States under the extended petition , (2) the 
Beneficiary was employed abroad for one continuous year out of the three preceding the date of its 
initial new office petition, (3) the Beneficiary acted in a managerial or executive capacity abroad, (4) 
it has a qualifying relationship with the Beneficiary's foreign employer, and (5) it is doing business 
as required by the regulations. · 
ORDER: The appeal is dismissed. 
Cite as Matter of K-W- LLC, lD# 1 182698 (AAO May 22, 20 18) 
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