dismissed L-1A Case: Real Estate Development

U.S. Citizenship 
and Immigration 
Services 
MATTER OF G-R-USA INC. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: JAN.16,2019 
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 
the president of its new office 1 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-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, concluding that the record did not 
establish, as required, that the Beneficiary will be employed in the United States in a managerial or 
executive capacity within one year. 
On appeal, the Petitioner contends that the Director failed to address the Petitioner's claim that the 
Beneficiary will be employed in an executive capacity and instead applied the standard applicable to 
managerial employees. Further, the Petitioner claims that the Director did not give sufficient 
consideration to crucial evidence such as the Beneficiary's proposed job duties. 
I. LEGAL FRAMEWORK 
To establish eligibility for the L-1 A nonimmigrant visa classification in a petition involving a new 
office, a qualifying organization must have employed the beneficiary in a managerial or executive 
capacity for one continuous year within three years preceding the beneficiary's application for 
admission into the United States. 8 C.F.R. § 214.2(l)(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. Id. 
The petitioner must submit evidence to demonstrate that the new office will be able to support a 
managerial or executive position within one year. This evidence must establish that the petitioner 
secured sufficient physical premises to house its operation and disclose the proposed nature and 
1 The tenn "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)(1 )(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. 
Matter ofG-R-USA Inc. 
scope of the entity, its organizational structure, its financial goals, and the size of the U.S. 
investment. See generally, 8 C.F.R. § 214.2(l)(3)(v). 
II. U.S. EMPLOYMENT IN AN EXECUTIVE CAPACITY 
The first issue to be addressed is whether the Petitioner established that the new office would support 
an executive position within one year. The Petitioner does not claim that the Beneficiary 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. 
In the case of a new office petition, we review a beneficiary's proposed job duties as well as the 
petitioner's business and hiring plans and evidence that the business will grow sufficiently to support 
a beneficiary in the intended managerial or executive capacity. A petitioner has the burden to 
establish that it would realistically develop to the point where it would require the beneficiary to 
perform duties that are primarily managerial or executive in nature within one year. 
Accordingly, the totality of the evidence must be considered in analyzing whether the proposed 
managerial or executive position is plausible considering a petitioner's anticipated staffing levels and 
stage of development within a one-year period. See 8 C.F.R. § 214.2(l)(3)(v)(C). 
A. Duties 
The Petitioner intends to operate a real estate development business with two planned phases of 
business development. In the initial phase, the Petitioner intends to engage in small-scale residential 
and commercial renovations, upgrades, and construction. In the second phase, the company would 
expand the business to include "direct investments in large-scale residential and commercial buildings." 
The Petitioner stated that the Beneficiary, as president, "will exercise broad, general decision­
making powers over the company's business matters and direction" and oversee the growth of the 
company. The Beneficiary's proposed duties are summarized below: 
15% "Direct and oversee the growth and overall direction of [the Petitioner]" -
including hiring and firing subordinate staff; establishing short-and long-term 
goals in increase and expand business; leading discussions with the foreign 
affiliate's executive leadership; and establishing policies for the efficient 
operation of the business. 
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Matter ofG-R-U.5A Inc. 
40% "Direct and oversee the timely completion of investment and project 
development within established budget, schedule and required return on 
investment" - including: overseeing identification, feasibility analysis, and 
negotiation of real estate acquisitions; overseeing project development 
planning; overseeing the identification and negotiation of financing for major 
projects; directing internal requests for authorization of capital investments 
and expenditures required to initiate project development. 
25% "Direct and oversee the development and implementation of marketing and 
sales/leasing plans for development opportunities" - including: approving 
marketing plans, materials and promotions for the leasing or sale of 
properties; overseeing the development of business development relationships 
with brokers and listing agents, with the goal of broadly marketing properties, 
obtaining competitive offers, and landing prospective tenants or buyers; and 
assessing proposals for lease or sales agreements. 
20% "Direct and oversee the performance of subordinate managers and 
professional employees" - including: a chief financial manager, a marketing 
manager, a principal engineer, and an office administrator. 
The Petitioner emphasizes that the submitted description does not include operational or 
administrative tasks and is therefore sufficient to establish that the Beneficiary's job duties will be 
primarily executive in nature. However, the submitted description is overly broad, as it focuses on 
the Beneficiary's authority over policy, strategy, and "overall business operations," without 
explaining the specific tasks he would be performing on a day-to-day basis to carry out these 
responsibilities by the end of the Petitioner's initial year of operations. 
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), aff'd, 905 F. 2d 41 (2d. Cir. 
1990); Avyr Assocs., Inc. v. Meissner, 1997 WL 188942 at *5 (S.D.N.Y.). Here, the Petitioner has 
not provided the necessary detail or an adequate explanation of the Beneficiary's proposed activities 
in the course of his daily routine. 
We acknowledge that the Beneficiary, as the Petitioner's senior employee, would have authority to 
establish plans, policies, and objectives for the company, supervise any employees hired, and make 
major decisions regarding its finances, investments, and overall direction. However, the Petitioner 
must also establish that these types of responsibilities would primarily occupy the Beneficiary's time 
within one year, and to make this determination, we review the totality of the evidence. The 
Beneficiary's discretionary authority is only one of several factors we consider in determining whether 
the Petitioner will employ him in a qualifying capacity at the end of the one-year new office period. 
On appeal, the Petitioner contends that the Director did not give sufficient weight to the 
Beneficiary's listed job duties. However, the Director's decision reflects that she properly 
considered the evidence as a whole to determine whether the Petitioner met its burden to show that it 
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Matter ofG-R-USA Inc. 
would have a reasonable need for the Beneficiary to primarily perform the claimed executive duties 
within one year. For the additional reasons discussed below, the Petitioner has not met this burden. 
B. Business Plan and Project Staffing 
In order to qualify for L-1 A nonimmigrant classification during the first year of operations, the 
regulations require a petitioner to disclose the proposed nature of the business and the size of the 
U.S. investment, and establish that the proposed enterprise will support an executive or managerial 
position within one year of the approval of the petition. See 8 C.F.R. § 214.2(1)(3)(v)(C). This 
evidence should demonstrate a realistic expectation that the enterprise will succeed and rapidly 
expand as it moves away from the developmental stage to full operations, where there would be an 
actual need for a manager or executive who will primarily perform qualifying duties. 
As noted, the Petitioner's business plan indicates that the company's activities will be implemented 
in two phases and states that it "will ramp up its business with small-scale residential and 
commercial buildings, focused on renovation and upgrades." The Petitioner noted that it will be 
operating in a favorable housing market but neither its statements nor the submitted business plan 
discuss any specific plans, potential investment properties, the amount of the intended investment in 
small-scale projects, the meaning of "small-scale," or the expected start-up costs and operating 
expenses associated with this line of business. The Petitioner notes that it is initially focusing on 
profitable small-sized construction so that it can accumulate the investment funds, assets, and 
partnerships needed to eventually engage in large-scale real estate projects. It states that its 
anticipated gross income for the first year will be $300,000 with net income of $63,000. However, 
the business plan does not contain pro forma financial statements and it is unclear on what data the 
Petitioner based these figures. The business plan is also lacking a timeline for implementation of the 
second phase of the Petitioner's development. 
In response to a request for evidence (RFE), the Petitioner provided a timeline of actions to be taken 
during its first year of operations, but the actions outlined are not supported by the business plan and 
in some instances seem to contradict it. The timeline indicates that the Petitioner will immediately 
begin to assess opportunities for large-scale investment and invest in these projects using monies 
transferred from its foreign affiliate. In fact, it indicates that the foreign affiliate will provide up to 
$10 million in funding during the first year of operations. However, the business plan contains no 
reference to a $10 million investment to be made during the first year of operations. Rather, it states 
that the company "ultimately intends to engage in large-scale real estate development" and "plans to 
utilize its profits and partnerships from Phase One to provide the necessary resources for these large­
scale projects." As noted, the company's anticipated profits for its first year would be $63,000 and 
the business plan does not indicate that Phase Two would begin in the first year. 
The submitted timeline does indicate that the company will "develop and complete small-scale 
projects, such as residential renovation and sales," during "Months 7 and 8" only, but does not 
otherwise mention these Phase One activities. Although the information in the timeline is 
inconsistent with the Petitioner's earlier explanation of the company's development plans, the 
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Matter ofG-R-USA Inc. 
Petitioner did not submit a revised business plan in response to the RFE or otherwise explain why its 
plans changed. 
Because of these inconsistencies in the Petitioner's statements regarding its intended development 
during the initial year of operations, it has not met its burden to establish the proposed nature of the 
office, its scope, and its financial goals for the first year. See 8 C.F.R. § 214.2(1)(3)(v)(C)(J). Further, 
the business plan itself is deficient because it includes no specific financial figures other than 
estimating that the company will have first year revenue of $300,000 and first year net income of 
$63,000. There is nothing in the business plan that supports the Petitioner's subsequent claim that it 
will receive $10 million from its affiliate over a period of 12 months and immediately commence 
involvement in large-scale investment projects. In fact, if it is anticipating receiving regular multi­
million dollar investments from its affiliate in the near future, it is unclear why the Beneficiary loaned 
the Petitioner $200,000 to supplement the $200,000 investment made by the company's owners. 
A petitioner's unsupported statements are of limited weight and normally will be insufficient to carry 
its burden of proof. The Petitioner must support its assertions with relevant, probative, and credible 
evidence. See Matter of Chawathe, 25 l&N Dec. 369, 3 76 (AAO 2010). In the case of a new office 
petition, it is reasonable to expect a petitioner to submit a detailed and credible business plan that 
satisfies the evidentiary requirements for new offices and is consistent with a petitioner's own 
statements regarding its anticipated development during the first year. Here, the submitted business 
plan did not contain sufficient relevant information and the Petitioner submitted statements that 
conflicted the limited information that the business plan did provide. 
With respect to the company's proposed staffing, the Petitioner indicated that it will hire a chief 
financial officer/manager, marketing manager, project engineer, and office administrator by the end 
of its fourth month in operations. However, without consistent, detailed information regarding what 
the company will actually be doing during its first year, we cannot determine whether this hiring 
timeline and the submitted job descriptions for these positions are credible and consistent with the 
nature of the business. If the Petitioner will be limited during its first year to purchasing and 
renovating residential properties on a "small scale" with relatively modest projected income, then its 
staffing needs may be considerably different from a company that is going to be engaged in multiple 
multi-million dollar real estate development projects. For example, if the Petitioner plans to engage 
in a just a few small-scale renovation projects in the initial year, then it has not adequately supported 
its immediate need for a full-time CFO or marketing manager. 
Further, while the business plan includes all four proposed subordinates as part of the Petitioner's 
proposed "Phase One" operations, it does not identify the employees' projected salaries or its 
projected first-year payroll expenses so that we can evaluate whether the personnel plan is feasible. 
The Petitioner supported its claim that it had received $200,000 in investments from its two owners 
as of the date of filing (as well as a $200,000 loan from the Beneficiary), but it did not provide 
information regarding how this money would be allocated. We will not assume that it is earmarked 
to pay employee salaries given that the Petitioner claims that it intends to purchase and renovate 
residential and commercial properties. Again, the business plan contains no breakdown of start-up 
costs, revenues, expenses or any other detailed financial information for the first year of operations. 
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Matter ofG-R-USA Inc. 
After reviewing the totality of the evidence, we find that the Petitioner has not adequately described 
what the Beneficiary will be doing during the initial year of operations or beyond, nor consistently 
explained the nature and scope of the Petitioner's activities for the first year of operations. 
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, 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." Id. 
As noted, the Petitioner submitted a broad description of the Beneficiary's responsibilities that does 
not defined his actual proposed duties in sufficient detail. While the Petitioner submitted a business 
plan broadly identifying two proposed phases of development, it is lacking any detail regarding its 
start-up costs, financial projections, operating expenses and other critical information necessary to 
evaluating the feasibility of the plan. The Petitioner has also submitted conflicting information as to 
whether it would actually implement phase two of its business plan during the initial year of 
operations. Without that second phase, the Petitioner's operations would be limited to an 
unspecified number of small scale residential renovation projects that may not support the claimed 
proposed personnel. The record does not establish how its phase one operations would support an 
executive position or would require the Beneficiary to spend his time primarily on the company's 
broad policies and goals. Therefore, although the projected organizational chart does show the 
Beneficiary at the head of the organizational hierarchy, the Petitioner's assertions regarding the 
Beneficiary's employment capacity and the nature and scope of the business are not adequately 
supported by the business plan or other evidence. 
For the foregoing reasons, the Petitioner did not demonstrate that the Beneficiary would primarily 
engage in executive duties, or that the new office would support an executive position, after the 
initial year of operations. 
III. CONCLUSION 
The appeal will be dismissed as the Petitioner has not established that it would employ the 
Beneficiary in an executive capacity within one year. 
ORDER: The appeal is dismissed. 
Cite as Matter ofG-R-USA Inc., ID# 1727676 (AAO Jan. 16, 2019) 
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