dismissed L-1A Case: Real Estate Development

U.S. Citizenship 
and Immigration 
Services 
MATTER OF R-H- LLC 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: JAN. 25, 2019 
APPEAL OF CALIFORNIA SERVICE CENTER DECISION 
. PETITION: FORM 1-129, PETITION FOR A NONIMMIGRANT-WORKER 
The Petitioner, a real estate sales and development business, seeks to continue the Beneficiary's 
temporary employment as its managing member under the L-1 A nonimmigrant classification for 
intracompany transferees.• Immigration and Nationality Act (the Act) section 10l(a)(l5)(L), 
8 U.S.C. § l 10l(a)(l5)(L). The L-IA 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 and affirmed the denial after 
reopening the matter in response to the Petitioner's filing of a motion to reopen and reconsider. The 
Director determined that the Petitioner did not establish that the Beneficiary would be employed in a 
managerial or executive capacity under the extended petition. 1 
On appeal, the Petitioner asserts that the Director did not consider all relevant evidence, applied an 
improper standard with respect to the Petitioner's reli'ance on independent contractors, and erred in 
determining that the Beneficiary would not be employed in an executive capacity. 
Upon de nova review, we will dismiss the appeal. 
I. LEGAL FRAMEWORK J 
To establish eligibility for the L-1 A nonimmigrant visa classification, 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 101 ( a)(tl 5)(L) of the Act. 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. Id. 
\ 
1 In the initial denial decision, the Director further determined that the Petitioner did not establish that it was doing 
business in the United States as defined in the regulations. The Director did not address this issue in the subsequent 
decision on motion, which is before us on appeal. 
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Matter of R-H- LLC 
II. U.S. EMPLOYMENT IN AN EXECUTIVE CAPACITY 
The sole issue addressed by the Director is _whether the Petitioner established- that it would employ 
the Beneficiary in an executive capacity under an extended petition. The Petitioner did not claim 
that he would be employed in a managerial capacity. 
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. 
When examining the executive capacity of a given beneficiary, we will look to t.he petitioner's 
detailed descriptio•n, of the job duties. 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 c;luties 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. 
A. Duties 
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•✓ 
Based on the definition of executive capacity, the Petitio~er must first show that the Beneficiary will 
perform certain high-level responsibilfries. 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 Petition~r's other employees. See Family Inc. v. USCIS, 469 F.3d 1313, 1316 (9th Cir. 
2006); Champion World, 940 F.2d at 1533. 
At the time of filing, the Petitioner submitted a statement from the Beneficiary in which he described 
his duties as "Executive Member" of the company as follows: 
15% Follow up on company projects with the department managers to ensure that 
all aspects of the project are running smoothly. 
5% . Attend weekly meetings with the contractor to ensure that construction 
projects are proceeding in a timely, competent manner. 
10% pefine and execute new business opportunities relating to the acquisition of 
new properties, and then assign the details of the acquisition to the business 
development department. 
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Matter of R~H- LLC 
15% Oversee [the Petitioner's] financial matters including budgetary matters, 
available funds, expenditures and cash flow. 
15% Establish and monitor deadlines for 'renovations, rehabilitations, and other 
construction activities, and ... oversee the process to ensure the work is done 
in a competent and timely manner. 
20% Set up strategic meetings with banks, real estate agents, and constructi9p 
companies in order to identify and pursue additional investment opportunities 
' for[the Petitioner]. 
10% Attend seminars, conferences and management training sessions focusing on 
· the field of real property acquisition and rehabilitation as well as other topics 
relating .to this industry. 
10% Prepare for and or attend monthly board meetings, where we discuss the 
progress and direction of the business, any financial and operational matters, 
qnd growth opportunities. 
The Petitioner subsequently re-submitted this same statement in response to the Director's request 
for evidence, in response to a notice of intent to deny, and in support of its motion to reopen and 
reconsider. On appeal, the Petitioner asserts that the description establishes that the Beneficiary 
"establishes the goals and policies of [the Petitioner], exercises a wide latitude in discretion and 
decision-making, and functions with general direction from the board of directors." The Petitioner 
emphasizes that the Beneficiary is the person responsible for hiring professionals to deal with issues 
such as zoning and evictions, making decisions regarding which contractors to hire, deciding when 
to buy and sell properties, and defining the .company's growth trajectory. 
The Petitioner indicated on the Form h:129, Petition for a Nonimmigrant Worker, that the offered . ' 
position is full-time, but it also stated that the Beneficiary continues to work for its foreign affiliate 
and enters \the United States only intermittently, for a few weeks per quarter. 2 The broadly stated 
duties indicate that the Beneficiary has the requisite level of decision-making authority over the 
company, but do not sufficiently detail what specific tasks he performs during his brief visits to the 
United States. For example, the Petitioner"'has not submitted evidence that he attends board 
meetings, seminars or monthly training sessions during 'his time in the United States, and the record 
does. not identify any potential new acquisitions or investment opportunities that were under 
consideration at the time of filing or while the petition was pending. 
Further, several' of the listed duties appear to overlap, such as· the Beneficiary's responsibility for 
following up on company projects, meeting with contractors to ensure.that projects are proceeding, 
and, monitoring deadlines for renovation and construction activities. It is unclear why these are 
. 2 Th~ Petitioner filed the Form 1-129 in August 2017. During the precedlng year, the Beneficiary had been in the United 
States from August 23, 2016, until September 18, 2016, and frqm May 6 until May 17, 2017, for a total of 39 days. 
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Mayer of R-H- LLC 
listed as separate, discrete tasks to be performed by the Beneficiary. The Petitioner indicates that the 
Beneficiary oversees financial matters but, until the appeal, did not indicate who actually performs 
the day-to-day bookkeeping and other routine financial tasks. It now claims on appeal that "most of 
the accounting work" is carried out by the foreign affiliate's staff, but it does not identify or 
document those staff or the specific duties · they perform. The description also refers to the_ 
Beneficiary's delegation of tasks to a "business development department," but the record does not 
establish that this department exists. 
I 
Overall, the description is broad, repetitive, and appears to describe a full-time position in a larger, 
more complex real estate development company, rather than an intermittent position for a company 
that, as discussed further below, had one property as of the date of the appeal. As such, it does not 
provide a clear picture of the nature of the Beneficiary's actual job duties within the context of the 
Petitioner's business. 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), a.ff"d, 905 F. 2d 41 (2d. Cir. 1990); Avyr Assocs., Inc. v. Meissner, 1997 WL 188942 at *5 
(S.D.N.Y.). 
The fact that the Beneficiary will manage or direct a business as its majority owner and sole 
employee does not necessarily establish eligibility for classification as an intracompany trarisferee in 
an executive capacity within the meaning of section 101 ( a)( 44) of the Act. By statute, eligibility for 
this classification requires that the duties of a position be "primarily" executive or managerial in 
nature. Sections 101(A)(44)(B) of the Act. While the Benefi~iary may exercise discretion over the 
Petitioner's operations and possess the requisite level of authority with respect to discretionary 
decision-making, a broad position description alone is insufficient to establish that his actual duties 
would be primarily executive in nature. 
B. Business Activities, Staffing and Organizational Structure 
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. 
The Petitioner states that it is engaged in the "purchasing, rehabilitation, rental, and sales of 
residential properties in and around " The record shows that the company has owned a total 
of five properties - one that was used as an "executive residence," and four 
multi-family residential investment properties and 
The record reflects that the Petitioner sold the _____ property prior to filing 
this petition in August 2017. 
The Petitioner's tax return shows that it rece1ved a total of $60,138 in gross rents from the properties 
at and in 2017. It provided evidence that it sold the 
and prope1ties while the petition was pending, and indicated that it was in the process of 
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Matter of R-H- LLC 
selling the property. 3 Therefore, the record does not establish that the Petitioner 
would be involved in the ongoing management.of these rental properties under an extended petition. 
With respect to the remaining __ property, the Petitioner indicates that it acquired this 
building for $30,000, has spent $75,000 on renovations, and expects to sell it for up to $175,000. It 
has never been used as a rental property, and it is ·unclear when the property would be ready for sale. 
The Petitioner initially submitted a contract- agreement with , dated in 
September 2016, indicating that would carry out a full rehabilitation of the property at a 
cost of $50,000 between October and December of that year. On motion, the Petitioner submitted an 
independent contractor agreement with a different contractor who was to perform similar work at the 
same property between October and December 2017 at a cost of $70,000. However, the record does 
not establish that either contractor performed the work described. According to its 2016 tax return, 
the Petitioner spent $3,000 on legal and other professional fees related to the property. In 
2017, the Petitioner reported $400 in repair expenses related to this property. Accordingly, it 
remains unclear what the Petitioner intends to do with this property in the future, and it has not 
supported its claim that it has already invested $75,000 on its renovation. 
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). 
Therefore, we will consider evidence of significant changes in the Petitioner's level of business 
activity that may impact its claimed need for a full-time executive. The record shows that, by the 
time the Petitioner filed the appeal, it owned a single property that, based on the evidence discussed 
above, was not generating rental income, under renovation, or otherwise being prepared for sale. 
We acknowledge that, subsequent to the filing of the petition, the Petitioner submitted a copy of a 
board resolution from its foreign affiliate, dated in October 2017. The resolution states that "as 2018 
approaches funds will become available so that [the Petitioner] will invest $300,000 more to 
purchase properties and allocate $400,000 more to rehab the properties purchased." However, the 
Petitioner did not submit any additional supporting evidence of this investment i_n support of the 
motion or appeal. Rather, the record evidence shows that the Petitioner has been divesting itself of 
its properties and does not include documentation related to any potential new purchases. 
With respect to the Petitioner's staffing, the record shows that the Beneficiary is its sole payroll 
employee, and that it has relied on contractors to perform renovations and construction, repairs and 
maintenance,. real estate sales, and various aspects of property management, including rent collection 
and tenant relations, including evictions . The Petitioner submitted an expert opinion letter from 
who stated that "it is common practice to contract out the services of lawyers, accountants , 
real estate agents , consultants , property managers, maintenance , and janitori al personnel to perform 
the services required by a typical real estate organization ." · 
.We acknowledge the Petitioner ' s objection to th e Director ' s finding that it can·not support an 
. executive position because it had not shown that its contractors are professionals. While we agree 
3 The Petitioner submitted eviden~e that the closing date for this s~le would be in January 201 8. 
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Matter ofR-H- LLC 
that there are certain circumstances in which a company that relies extensively on independent 
contractors may support a qualifying executive position, we agree with the Director's ultimate 
conclusion that the totality of the evidence submitted here does not 'support the Petitioner's claim 
that the Beneficiary's duties will be primarily executive or that the Petitioner supports and can 
continue to support an executive position. 
This finding is based not on the Petitioner's reliance on independent contractors, but on the overall 
scope of the company's operations. The evidence submitted shows that the company, as of the date 
of the appeal, has one dormant property, the renovation and re-sale of which has been delaye_d for 
unknown reasons. After stating ~t the time of filing that it was on the verge of substantial growth 
and preparing to hire its own staff for certain functions, the Petitioner sold all of its other properties 
without providing evidence that it was in the process of pursuing any new real estate investment 
opportunities. Therefore, some of the contractors who provided services in the past were likely not 
engaged by the Petitioner.at the time the Director adjudicated the motion. 
Further, although the Petitioner has consistently included the position of "business development 
director" on its organizational chart, it has not documented that it compensates this individual 
as an employee or contractor. The record does include evidence that and another 
individual communicate with the Beneficiary and have coordinated with the 
independent contractors in the past. It appears that these individuals are the Beneficiary's sons and 
that they assist him with looking after the properties here while he is abroad; however, the record 
does not support a finding that they are employees or that the company has the structure in place to 
support an executive capacity position, especially in light of the Petitioner's decision to sell all but 
one of its properties.· 
'-
Finally, we acknowledge that the record contains an advisory evaluation of the Benefi~iary's 
position written by , an associate dean at the 
opines that the Beneficiary's job duties, as stated above, satisfy the statutory definition of 
"executive capacity," as defined at section 101(a)(44)(B) of the Act. However, it is unclear what 
information or documentation he reviewed, beyond the overly-broad position description, in order to 
reach this conclusion. He states that he is familiar with the type of busi_ness operated by the 
Petitioner, but his letter does not include any specifics regarding the nature and scope of the 
Petitioner's business, or the intermittent nature of the Beneficiary's brief visits to the United States. 
As a result, we find his determinations to be conclusory and based primarily or solely on a broad job 
description that lacked the required specificity to establish the true nature of the Beneficiary's day­
to-day duties . . 
We may, in our discretion, use as advisory opm1on statements from universities, professional 
organizations, or other sources submitted in evidence as expert testimony. Matter of Caron Int '!, 19 
I&N Dec. 791 , 795 (Comm'r 1988). ' However, we are also ultimately responsible for making the_ 
final determination regarding a foreign national's eligibility. The submission of letters from experts 
supporting the petition is not ·. presu.mptive evidence of eligibility. Id. We have already 
acknowledged the Beneficiary's authority. over the petitioning company as its sole employee. 
However , for the reasons already discussed·, the totality ofthe evidence does not establish that the 
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Matter of R-H- LLC 
Beneficiary's primary duties would be executive in nature. Because the expert evaluation was based 
solely on ~ broad job description, and not on a review of all relevant evidence, we find that it has 
limited probative value. r 
In light of the foregoing discussion, the Petitioner has not shown how it has an ongoing need for the 
Beneficiary's services in an executive capacity. ' · 
III. DOING BUSINESS 
Although not addressed in the Director's decision, we find that the evidence submitted in support of 
the motion and appeal raises questions as to whether the Petitioner will continue to do business as a 
qualifying organization in the United States. 
To establish that it is doing business, a Petitioner must demonstrate that it is engaged in the "regular, 
system'atic, and continuous provision of goods or services." 8 C.F .R: § 214.2(1)(1 )(ii)(H). Further, 
to meet the definition of a "qualifying organization," the Petitioner must show that it will continue to 
do business for the duration of the Beneficiary's requested stay in the United States as an L-1 
nonimmigrant. 8 C.F.R. § 214.2(l)(l)(ii)(G)(2). 
As discussed, the most recent evidence in the record reflects that the Petitioner owned only one 
property at the time of the appeal. The property was not generating rental income. 
Further, the Petitioner did not provide evidence that it proceeded with having the property renovated to 
make it suitable for rental or resale, despite submitting two different contractor agreements indicating 
that the renovation work was to be completed in 2016 and 2017, respectively. Since the Petitioner 
indicates that it rents, renovates, and re-sells real estate, the fact that it had no property rented or being 
prepared for re-sale at the time it filed the appeal raises questions about its ongoing business 
operations. While the Petitioner submitted a resolution from its foreign affiliate indicating that the 
Petitioner would have an additional $700,000 available for purchases and renovations ,in 2018, the 
-record lacks sufficient supporting documentation of any ongoing investment activities. 
The Petitioner did not meet its burden to establish that it would continue to do business as a qualifying 
organization in the United States, and, for this additional reason, the petition cannot be approved. 
IV. CONCLUSION · 
The Peti_tioner has not established that it would employ the Beneficiary in an executive capacity 
under the extended petition . Further , it did not establish that it will continue ·to do business as a 
qualifying organization in the United States . 
ORDER: The appeal is dismissed. 
Cite as Matter of R-H- LLC, ID# 1557256 (AAO Jan .. 25, 2019)