dismissed L-1A Case: Real Estate Development

.
U.S. Citizenship 
and Immigration 
Services 
MATTER OF U-D-I- CORP. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: JAN. 19, 2018 
APPEAL OF CALIFORNIA SERVICE CENTER DECISION 
PETITION: FORM 1-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner , a real estate development business, seeks to temporarily employ the Beneficiary as its 
president under the L-1 A nonimmigrant classification for intracompany transferee s. 
1 
See 
Immigration and Nationality Act (the Act) section 10l(a)(l5)(L), 8 U.S.C. § 1101(a)(l5)(L). The L-
1 A 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 California Service Center denied the petition , concluding that the record did not 
establish , as required , that the Beneficiary would be employed in the United States in a managerial or 
executive capacity. 
On appeal , the Petitioner submits additional evidence and asserts that the Director erron eously 
determined that the record lacked a sufficient description of the Beneficiary's proposed job duties. 
The Petitioner further contends that the Beneficiary qualities for L-1 A classification "based on her 
subordinate employees' qualifications." 
Upon de novo review , we will dismiss the appeal. 
I. LEGAL FRAM EWORK 
To establish eligibility for the L-1 A nonimmigrant visa classification , a qualif ying 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 10l(a)(l5)(L) of the Act. In addition, the beneficiar y 
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. The 
1 
The Petitioner previously filed a ·'new office'' petition on the Beneficiary's behalf which was approved tor the period 
2016, until , 2017. 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). U.S. 
Citizenship and Immigration Services (USC IS) denied the Petitioner's request for an extension of the new office petition 
on 2017, and the Petitioner then filed this new petition. 
Matter of U-D-1- Corp. 
petitioner must also establish that the beneficiary's prior education, trammg, and employment 
qualities him or her to perform the intended services in the United States. 8 C.F.R. § 214.2(1)(3). 
"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 
10l(a)(44)(A) of the Act. 
"Executive capacity" means an assignment within an organization in which the employee primarily 
directs the management of the organization or a major component or function of the organization: 
establishes the goals and policies of the organization, component, or function; exercises wide 
latitude in discretionary decision-making; and receives only general supervision or direction from 
higher-level executives, the board of directors, or stockholders of the organization. Section 
10l(a)(44)(B) of the Act. 
If staffing levels are used as a factor in determining whether an individual is acting in a managerial 
or executive capacity, USCIS takes into account the reasonable needs of the organization, in light of 
the overall purpose and stage of development ofthe organization. See section 10l(a)(44)(C) ofthe 
Act. 
II. U.S. EMPLOYMENT IN A MANAGERIAL OR EXECUTIVE CAPACITY 
In the denial decision, the Director determined that the record did not support the Petitioner's claim 
that the Beneficiary's duties are primarily managerial or executive in nature. The Director found 
that the Petitioner did not provide a sufficiently detailed description of the Beneficiary's day-to-day 
duties. The Director further found that the Petitioner did not establish that it had the organizational 
structure to support a managerial or executive position. Finally. the Director noted that the record 
did not show that the Beneficiary would manage subordinate professionals or managers, or that she 
would primarily manage an essential function of the business. 
On appeal, the Petitioner maintains that the Beneficiary's duties are primarily managerial or 
executive and that "there is no fixed schedule ... to describe the beneficiary's work on a daily basis 
as it is not routine office work.'' The Petitioner asserts that all of the Beneficiary's subordinates have 
at least a bachelor's degree and that the Beneficiary qualifies for L-lA classification based on the 
subordinate employees' qualifications. 
When examining the managerial or executive capacity of a given beneficiary, we will look 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). Beyond the required description of 
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Matter(?!' U-D-1- Corp. 
the job duties, 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. 
Accordingly, we will discuss evidence regarding the Beneficiary's job duties along with evidence of 
the nature of the Petitioner's business and its staffing levels. 
A. Duties 
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. USCI5', 469 
F.3d 1313, 1316 (9th Cir. 2006); Champion World, 940 F.2d at 1533. 
The Petitioner is a real estate development company established in 2014. Shortly thereafter, 
it company acquired a 15-acre parcel of undeveloped land in California, with the objective 
of developing the land into a residential area. At the time of filing, in 2017 , the Petitioner 
noted that the City of "approved our project at GPA hearing on 2017. " The 
Petitioner indicated that this approval can be considered "significant progress" after multiple years 
of meetings and hearings with the city's planning commission and city council , as well as working 
closely with architect and design teams to prepare studies and reports and submitting applications .2 
The Petitioner's letter in support of the petition included a lengthy description of the Beneficiary's 
proposed duties as president. Briefly , the Petitioner stated she would allocate her time as follows : 
• Setting up the company's strategic goals, objectives and policies and overseeing 
the implementation ( 10% ); 
• Recommending annual budget and managing company's resources within the 
budget guidelines per current laws and regulations ( 10% ); 
• Supervising and monitoring the daily operation of the company to assure 
profitability and growth (20%); 
• Directing staff to set up and develop client network in the US, participating key 
clients' meetings and important social activities on behalfofthe company (20%) ; 
• Liaison with the parent company on a regular basis regarding company's future 
planning, business strategies and management (1 0%) ; 
2 Later, in response to a request for evidence (RFE), the Petitioner provided a letter dated 2017, from the City of 
Community Development Department. This letter advised the Petitioner that City Council authorized the 
formal processing of its General Plan Amendment application. Further, the city recommended that, prior to filing the 
General Plan Amendment application, the Petitioner first submit a Preliminary Review Procedure application for further 
examination of its proposal. Based on this evidence it is not clear that the Petitioner has received final approval for its 
proposed development project. 
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Matter of U-D-1- Corp. 
• Hiring, firing and promoting employees of the company (15%); 
• Planning and controlling company's financial activities and overseeing cash flow 
and corporate tax matter(s) (15%). 
The Petitioner re-submitted this position description in response to the Director's request that it 
provide further explanation to establish that the Beneficiary's actual duties would be primarily 
managerial or executive in nature. 
Upon review, we agree with the Director's assessment that the job description is insufficient to 
establish that the Beneficiary would be employed in a managerial or executive. Although the broad 
responsibilities reflect the Beneficiary's senior position in the company as the president, the 
Petitioner did not provide details needed to provide insight into what she would be doing on a day­
to-day basis as the president of a company with a single real estate development project that is still in 
the planning and permitting stage. 
Many of the duties are overly broad and could describe any managerial or executive position within 
any company. For example, the Petitioner stated that the Beneficiary would be establishing goals, 
objectives and policies, supervising and monitoring daily operations, managing company resources, 
planning and controlling financial activities, and making personnel decisions, but provided little 
detail describing her expected daily tasks within the context of the Petitioner's business. Reciting 
the Beneficiary's vague job responsibilities or broadly-cast business objectives is not sufficient; the 
regulations require a detailed description of the Beneficiary's daily job duties. The Petitioner has not 
provided any detail or explanation of the Beneficiary's activities in the course of their daily routine. 
The actual duties themselves will reveal the true nature of the employment. Fedin Bros. C'o .. Ltd. v. 
Sava, 724 F. Supp. 11 03, 1108 (E.D .N.Y. 1989), af('d, 905 F .2d 41 (2d. Cir. I 990 ). 
Although the Director specifically noted the lack of detail in the job description, the Petitioner does 
not offer additional explanation of the Beneficiary's proposed position on appeal. The Petitioner 
contends that the previously provided description "accurately described" the position, that the 
Beneficiary will be "busy overseeing the whole company's operations," will not have a fixed 
schedule, and will not be performing "routine ot1ice work." These statements do not provide 
additional insight into the actual type of work the Beneficiary will be doing or what tasks will 
engage her in overseeing the whole company's operations. 
We do not doubt that the Beneficiary will have the authorities attributed to her by the broad job 
description; however, we do find it reasonable to question whether it is a complete and accurate 
representation of her actual proposed duties. For example, it is not evident how the Beneficiary 
would spend 15% of her time on hiring, firing, and promoting employees. The Petitioner's project 
has not been approved and the record does not reflect that the company is actively recruiting staff. 
In addition, the Petitioner only noted that the Beneficiary would attend final-round interviews with 
candidates and review performance evaluations every six months. It is unclear why this 
responsibility would require 15% of her time on a routine basis. 
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Matter of U-D-1- Corp. 
Similarly, it is unclear how the Beneficiary could spend 20% of her time directing the development 
of a "client network" in the United States based on the Petitioner's current stage of operational 
development. The Petitioner has an undeveloped parcel of land that has not yet received approval 
for development, no other documented projects, clients, or customers, and it has not shown a current 
need to develop a U.S. client network. At the same time, none of the Beneficiary's responsibilities 
appear to relate directly to the types of activities in which the Petitioner is actually engaged, which 
further leads us to question whether the Petitioner provided a complete and accurate representation 
ofthe proposed position. 
The fact that the Beneficiary will manage or direct a business does not necessarily establish 
eligibility for classification as an intracompany transferee in a managerial or executive capacity 
within the meaning of section 10l(a)(44) of the Act. By statute, eligibility for this classification 
requires that the actual duties of a position be "primarily" executive or managerial in nature. 
Sections 101 (A)( 44 )(A) and (B) of the Act. While the Beneficiary may exercise discretion over the 
Petitioner's day-to-day operations and possess the requisite level of authority with respect to 
discretionary decision-making, the broad position description alone is insufficient to establish that 
her actual duties would be primarily managerial or executive in nature. 
B. Staffing 
The Petitioner established that it employs four employees in addition to the Beneficiary: an 
investment and marketing manager, a financial and administration manager, a project manager, and 
an engineering manager. All four employees are identified as the heads of separate departments on 
the Petitioner's organizational chart. The chart includes vacancies for: a customer service 
representative and sales staff in the investment and marketing department; an administrative assistant 
in the financial and administration department; and two engineers in the engineering department. 
Finally, the organizational chart shows that the project manager oversees a 
contractor. 
On appeal, the Petitioner claims that the Beneficiary qualifies for L-1 A classification based on the 
professional qualifications of her subordinate employees. The statutory definition of "managerial 
capacity" allows for both "personnel managers" and "function managers.'' See section 
101(a)(44)(A)(i) and (ii) of the Act. Personnel managers are required to primarily supervise and 
control the work of other supervisory, professional, or managerial employees. Contrary to the 
common understanding of the word "manager," the statute plainly states that a "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." Section 101(a)(44)(A)(iv) of 
the Act. The Petitioner does not claim that the Beneficiary will be a function manager, so we will 
examine the duties performed by her subordinates to determine if she will be primarily supervising 
subordinate supervisory, professional, or managerial employees. 
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Matter of U-D-1- Corp. 
The Petitioner provided a summary of duties for each employee and evidence that the investment 
and marketing manager and financial and administration department manager have earned college 
degrees. The Petitioner indicated that both the engineering manager and the project manager have 
bachelor's degrees, 
but did not provide supporting evidence of their credentials. 
The evidence must substantiate that the Beneficiary's duties and those of her subordinates 
correspond to their placement in an organization's structural hierarchy. Managerial job titles alone 
are not probative and will not establish that an organization is sufficiently complex to support a 
managerial or executive position. As of the date of filing, three of the subordinate managers had no 
subordinate employees to oversee or manage, as the Petitioner had not yet hired the lower-level 
sales, customer service, administrative, or engineering staff depicted on its organizational chart. 
Therefore, any supervisory duties attributed to the department managers are prospective in nature. 
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). 
While the Petitioner did establish that it uses the services of the record does not 
contain evidence of the project manager's supervision of this architectural firm. The Petitioner has 
not shown that the Beneficiary 's subordinates are managers or supervisors. 
On appeal, the Petitioner claims that the Beneficiary's subordinates are professionals. In evaluating 
whether a 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. C.'(: 8 
C.F.R. § 204.5(k)(2) (defining "profession" to mean "any occupation for which a U.S. baccalaureate 
degree or its foreign equivalent is the minimum requirement for entry into the occupation"). Section 
101(a)(32) of the Act, states that "[t]he terrnprqfession shall include but not be limited to architects, 
engineers, lawyers, physicians , surgeons, and teachers in elementary or secondary schools, colleges, 
academies, or seminaries." 
Therefore, we must focus on the level of education required by the position, rather than the degree 
held by a subordinate employee. The possession of a bachelor's degree by a subordinate employee 
does not automatically lead to the conclusion that an employee is employed in a professional 
capacity. 
The Petitioner has established that its investment and marketing department manager has a 
bachelor 's degree in electrical engineering, but it has not shown that an engineering degree is 
required for his position. The Petitioner indicates that this employee explores investment 
opportunities and is in charge of "real estate marketing and sales," attends social activities, visits 
clients, and supervises sales and customer service staff who have not yet been hired. Given that the 
Petitioner currently owns undeveloped land and appears to be several stages removed from being 
approved to proceed with its construction project, it is unclear what marketing and sales duties this 
employee is actually in charge of. The Petitioner has not shown that this individual is employed in a 
professional position. 
The Petitioner's financial and administration department manager has a master's degree in 
economics. The Petitioner indicates that this individual oversees cash flow, budget control, and tax 
Matter of U-D-1- Corp. 
matters and makes suggestions regarding the company's financial strategies. However, most of 
these duties overlap with the Beneficiary's own duties and the Petitioner does not indicate who is 
actually responsible for the Petitioner's routine, day-to-day financial activities, if not this employee. 
Many of the remaining duties attributed to this department manager are administrative, including 
setting up meetings, organizing activities, purchasing office supplies, and maintaining company 
records, duties which may eventually be assigned to an administrative assistant. The Petitioner's 
description of this employee's duties, viewed within the context of the business, is insufficient to 
establish that the financial and administration manager is a professional position. 
The Petitioner did not provide evidence that its two remaining employees have at least a bachelor's 
degree, nor has it provided sufficiently detailed descriptions for the project manager or engineering 
manager to show that these positions require a degree. Therefore, the Petitioner has not shown that 
the Beneficiary would qualify as a personnel manager based on her supervision of subordinate 
professionals. 
The record does not establish, in the alternative, that the Beneficiary will be employed in an 
executive capacity. 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 
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. An individual will not be deemed an executive under the 
statute simply because they have an executive title or because he or she "directs" the enterprise as 
the owner or sole managerial employee. Here, although the Petitioner indicates that the Beneficiary 
will be responsible for establishing the company's goals and policies, she is not currently directing 
managerial employees and, for the reasons discussed above, it is unclear what she is doing on a day­
to-day basis. 
As required by section !Ol(a)(44)(C) of the Act, if staffing levels are used as a factor in determining 
whether an individual is acting in a managerial or executive capacity, users must take into account 
the reasonable needs of the organization, in light of the overall purpose and stage of development of 
the organization. Given the Petitioner's current stage of development, the job descriptions provided 
for the Beneficiary and her subordinates appear to be largely prospective, rather than ref1ective of 
their actual duties at the time of filing. Without a meaningful description of the actual duties 
performed by the Bendiciary and her subordinates within the context of the Petitioner's operations 
and current level of business activity, we cannot determine that the Petitioner had a reasonable need 
for the Beneficiary to perform primarily executive duties. 
The Petitioner made a sizeable real estate investment three years prior to the filing of the petition and 
emphasizes that this type of development project requires a lengthy period of time to come to 
fruition. While it may be normal for a project of this scale to remain in the pre-construction phase 
for years, the Petitioner must still show that it was able to support a managerial or executive positon 
Matter of U-D-1- Corp. 
as of the date of filing the petition. The reasonable needs of the Petitioner will not supersede the 
requirement that the Beneficiary must be "primarily" employed in a managerial or executive 
capacity, spending the majority of her time on clearly described qualifying duties. See sections 
10l(a)(44)(A) and (B) of the Act. For the reasons discussed, the Petitioner has not met this 
requirement. 
III. CONCLUSION 
The appeal must be dismissed as the Petitioner did not establish that it will employ the Beneficiary 
in a managerial or executive capacity. 
ORDER: The appeal is dismissed. 
Cite as Matter o.fU-D-1- Corp., ID# 825871 (AAO Jan. 19, 2018) 
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