dismissed L-1A Case: Real Estate Development

U.S. Citizenship 
and In1n1igration 
Services 
MATTER OF J-G-(USA), LLC 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: MAR. 14, 2019 
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 
"Vice President - Business Development" under the L-lA 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-lA classification allows a corporation or other legal entity 
(including its affiliate or subsidiary) to transfer a qualifying foreign employee to the United States to 
work temporarily in a managerial or executive capacity. 
The Director of the California Service Center denied the petition determining that the Petitioner did 
not establish, as required, that it would employ the Beneficiary in a managerial or executive capacity 
in the United States. 
On appeal, the Petitioner asserts that the Director did not give proper consideration to the 
Beneficiary's detailed job description and overlooked substantial evidence demonstrating that the 
company has both the business need and financial ability to hire managerial and professional 
employees to support the Beneficiary in an executive capacity. 
Upon de nova review, we will dismiss the appeal. 
I. LEGAL FRAMEWORK 
To establish eligibility for the L-lA 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 10l(a)(l5)(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. The 
petitioner must also establish that the beneficiary's prior education, training, and employment 
qualify him or her to perform the intended services in the United States. 8 C.F.R. § 214.2(1)(3). 
Matter of J-G-(USA), LLC 
11. U.S. EMPLOYMENT IN AN EXECUTIVE CAPACITY 
The primary issue to be addressed is whether the Petitioner established that it would employ the 
Beneficiary in an executive capacity. 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 10l(a)(44)(B) of the Act. 
When examining the executive capacity of a given beneficiary, we will look to the petitioner's 
detailed description 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 duties and role in a business. 
Accordingly, we will discuss evidence regarding the Beneficiary's proposed job duties along with 
evidence of the nature of the Petitioner's business, its staffing levels, and its organizational structure. 
A Duties 
Based on the definition of executive capacity, the Petitioner must first show that the Beneficiary will 
perform certain high-level responsibilities. Champion World, Inc. v. INS, 940 F.2d 1533 (9th Cir. 
1991) (unpublished table decision). Second, the Petitioner must prove that the Beneficiary will be 
primarily engaged in managerial or executive duties, as opposed to ordinary operational activities 
alongside the Petitioner's other employees. See Family Inc. v. USCIS, 469 F .3d 1313, 1316 (9th Cir. 
2006); Champion World, 940 F.2d at 1533. 
At the time of filing, the Petitioner submitted a letter that included a list of nine proposed duties the 
Beneficiary would perform as Vice President - Business Development. Those duties included: 
directing the preparation of annual business plans, real estate project development plans, and budget 
proposals for approval by the CEO; directing the preparation of subdivision plans, architectural 
designs, and construction plans for real estate development projects and making proposals to the 
CEO for final approval; making proposals regarding the overall structure of the company and 
establishment of divisions; making personnel decisions and/or proposals including hiring and 
discharging executives, managers and professional staff; directing and supervising the work of 
managerial and professional staff (including a project manager, marketing manager, business 
development manager and office operations manager), as well as directing the work of managerial 
and professional staff of the foreign parent company; interviewing and hiring outside professionals; 
and, directing and participating in major business negotiations with business partners. 
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Matter of J-G-(USA), LLC 
In a request for evidence (RFE), the Director advised the Petitioner that it did not sufficiently explain 
the Beneficiary's proposed duties and requested a more detailed description identifying the specific 
tasks he is expected to perform and the percentage of time to be spent on each task. 
In response, the Petitioner elaborated on the nine job duties stated at the time of filing and assigned 
percentages ranging from 2.5% to 10% to eight of those duties. The Petitioner indicated that a full 
50% of the Beneficiary's time would be spent on directing and supervising the work of a vice 
president - finance, project manager, marketing manager, business development manager, and office 
operations manager, as well as directing the work of managerial and professional staff employed by 
the Petitioner's parent company who support the Petitioner's U.S. operations. Specifically, the 
Petitioner stated that the Beneficiary would hold daily meetings with these managerial staff, delegate 
duties and responsibilities to them, approve major work assignments proposed by the office 
operations manager, and review reports prepared by each subordinate manager regarding their work 
progress. 
Overall, the description appears to describe an executive position in a fully staffed and operational 
real estate development company. However, at the time of filing in April 2018, the Petitioner had 
one claimed employee (the CEO) on its proposed organizational chart, indicated that it was still in 
the permit application process for its real estate project, and submitted a business plan indicating that 
it expected to have a staff of 10 or 11 employees by November 2018. In its response to the RFE in 
July 2018, the Petitioner stated that the business development "is approximately one year behind the 
original plan." The Petitioner's appeal, submitted in October 2018, does not mention any hiring that 
has taken place subsequent to the date of filing. Further, while we acknowledge that the Petitioner 
indicated that the Beneficiary would also oversee staff employed by its foreign parent company, the 
Petitioner did not identify these employees with any specificity, provide their job descriptions, or 
provide any evidence of the work they were performing for the U.S. company as of the date of filing. 
As such, the job description submitted for the Beneficiary appears to be largely speculative, and it 
does not provide a clear picture of the nature of his actual proposed job duties within the context of 
the Petitioner's business as it existed at the time of filing. 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). A visa petition may not be approved 
based on speculation of future eligibility or after a petitioner or beneficiary becomes eligible under a 
new set of facts. See, e.g., Matter of Michelin Tire Corp., 17 I&N Dec. 248 (Reg'l Comm'r 1978); 
Matter of Katigbak, 14 I&N Dec. 45, 49 (Comm'r 1971). 
The fact that the Beneficiary would assist the CEO with the management or direction of the business 
during its developmental phase does not necessarily establish eligibility for classification as an 
intracompany transferee in an executive capacity within the meaning of section 10l(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. Section 10l(A)(44)(B) of the Act. While the Beneficiary would 
likely possess the requisite level of authority with respect to discretionary decision-making, the 
broad and speculative description is insufficient to establish that his actual duties would be primarily 
executive in nature. 
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Matter of J-G-(USA), LLC 
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 10l(a)(44)(C) 
of the Act. Therefore, a company's size alone may not be the determining factor in denying a visa 
petition for classification as an intracompany transferee. However, it is appropriate to consider the 
size of the petitioning company in conjunction with other relevant factors, such as the absence of 
employees who would perform the non-managerial or non-executive operations of the company or a 
"shell company" that does not conduct business in a regular and continuous manner. Family Inc. v. 
USCIS, 469 F.3d 1313 (9th Cir. 2006); Systronics Corp. v. INS, 153 F. Supp. 2d 7, 15 (D.D.C. 
2001). 
Here, the Petitioner is described as a real estate development company established in 2016, with one 
claimed employee at the time of filing. 1 The Petitioner provided evidence that it had purchased 31 
acres of land in in August 2016, and states that it intends to build a 310 lot residential 
subdivision on the land, with expected construction and development costs of $202 million and 
estimated sales of $407 million. The Petitioner indicated that it is in the process of obtaining 
approvals and permits for the development of the subdivision, and provided evidence that it had 
signed a "Predevelopment Consulting Agreement" with and made payments under 
the terms of the agreement. In response to the RFE, the Petitioner also submitted a Transportation 
Impact Study related to the project that was last updated in February 2018. The Petitioner did not 
submit any other documentation demonstrating the progress of the project. 
As noted, the Petitioner initially indicated that it would have a staff of 10 to 11 employees in place 
by November 2018, and expected to achieve completion and sale of the residential properties by 
November 2020. However, in response to the RFE, the Petitioner indicated that it was 
approximately one year behind and still in the process of obtaining approvals and permits before 
development activities could commence. 
The Petitioner's initial organizational chart indicated that its proposed staff would include: a 
president and CEO; one or two vice presidents; "office operations management and administration" 
(2 employees); a business development manager with two subordinate staff; a project manager with 
four subordinate staff; a marketing manager with two subordinate staff; and external contractors, 
including engineers, architects, brokers and other onsite workers. The organizational chart 
submitted in response to the RFE was slightly revised in that it identified the Beneficiary by name 
along with h is proposed "Vice President - Business Development " position , identified a proposed 
"Vice President - Finance " position subordinate to him, and identified as the "office 
1 The only employee named on the initial organizat ional chart was the Petitioner 's CEO. In response to the RFE, the 
Petitioner claimed to have two employees - the CEO and an Office Operations Manager. The Petitioner has not 
submitted payroll documentat ion or other evidence of wages paid to employees, and therefore has not established which 
position was staffed when it filed the petition. 
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Matter of J-G-(USA), LLC 
operations manager." At most, it appears that the Petitioner claimed to employ the CEO and the 
office operations manager prior to the denial of the petition. 
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 beneficiary 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." Id. 
Here, the Petitioner's description of the Beneficiary's proposed duties is predicated on him spending 
a full 50% of his time supervising subordinate managerial staff who have not yet been hired, and for 
that reason, the description has limited probative value in establishing the nature of his expected 
duties upon approval of the petition. The Petitioner did not establish how its current staff of, at 
most, one subordinate employee would support both a CEO and a vice president. Further, the 
Petitioner has not shown that it had a need for the Beneficiary to perform primarily executive duties 
as of the date of filing based on its current stage of development, even if we consider the Petitioner's 
subsequent claim that intends to transfer its CEO back to China in the near future. 
We acknowledge that the record contains an advisory evaluation of the Beneficiary's position 
written by an associate dean at the 
repeats the job description that the Petitioner provided in response to the RFE and opines 
that the Beneficiary's job duties satisfy the statutory definition of "executive capacity," as defined at 
section 10l(a)(44)(B) of the Act. However, it is unclear what information or documentation he 
reviewed, beyond the Beneficiary's position description, in order to reach this conclusion. He states 
that he is familiar with the type of business operated by the Petitioner, but his letter does not include 
any specifics regarding the nature and scope of the Petitioner's business, the fact that its only project 
is in the pre-development phase, or the fact that the subordinate staff mentioned throughout the 
Beneficiary's job description have not been hired As a result, we find his determination to be 
conclusory and based primarily or solely on a broad job description that was speculative and lacked 
the details needed to establish the true nature of the Beneficiary's day-to-day duties as of the date of 
filing. 
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'l , 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 presumptive evidence of eligibility. Id. We have already 
acknowledged the Beneficiary ' s authority over the company which he will apparently share with the 
Matter of J-G-(USA), LLC 
senior executive to whom he will report. However, for the reasons already discussed, the totality of 
the evidence does not establish that the Beneficiary's primary duties would be executive in nature. 
Because the expert evaluation was based on a speculative job description, and not on a review of all 
relevant evidence, we find that it has limited probative value. 
Finally, we note that, in a statement accompanying its Form I-290B, Notice of Appeal or Motion, the 
Petition emphasizes that it "submitted into evidence numerous documents, including a business plan 
and financial records, etc., to establish that the new office has the resources to hire and is in the 
process of hiring subordinate employees to support the beneficiary." 
The term "new office" refers to an organization which has been doing business in the United States 
for less than one year. 8 C.F.R. § 214.2(1)(l)(ii)(F). The regulation at 8 C.F.R. § 214.2(1)(3)(v)(C) 
allows a "new office" operation no more than one year within the date of approval of the petition to 
support an executive or managerial position. 
The L Classification Supplement to Form 1-129, at Section 1, item 12, specifically asks the 
petitioning employer to respond to the question "Is the beneficiary coming to the United States to 
open a new office?" The Petitioner responded "No" to this question and, with the exception of the 
statement quoted above, it has not indicated that it intended to file a new office petition. A petitioner 
may not make material changes to a petition in an effort to make a deficient petition conform to 
USCIS requirements. See Matter of Izummi, 22 I&N Dec. 169, 176 (Assoc. Comm'r 1998). 
Accordingly, we will not treat this petition as a new office petition; the Petitioner must establish its 
ability to support the Beneficiary in an executive position as of the date of filing. 
In light of the foregoing discussion, the Petitioner has not shown that it would employ the 
Beneficiary in an executive capacity. 
III. DOING BUSINESS 
Although not addressed in the Director's decision, we find that the Petitioner has not established that 
it was doing business at the time of filing. To establish that it is doing business, a Petitioner must 
demonstrate that it is engaged in the "regular, systematic, and continuous provision of goods or 
services." 8 C.F.R. § 214.2(1)(l)(ii)(H). 
As discussed, the Petitioner's real estate development project is in the pre-development and permitting 
phase and, as such, the record does not show that it is engaged in regular and systematic business 
activities that meet the definition of "doing business." For this additional reason, the petition cannot be 
approved. 
IV. CONCLUSION 
The appeal will be dismissed for the above stated reasons, with each considered an independent and 
alternative basis for the decision. In visa petition proceedings, it is the petitioner's burden to establish 
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Matter of J-G-(USA), LLC 
eligibility for the immigration benefit sought. Section 291 of the Act, 8 U. S.C. § 1361. The Petitioner 
has not met that burden. 
ORDER: The appeal is dismissed. 
Cite as Matter of J-G-(USA), LLC, ID# 2501105 (AAO Mar. 14, 2019)