dismissed L-1A Case: Real Estate Development

U.S. Citizenship 
and Immigration 
Services 
MATTER OF W-L-D- LLC 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: MAY 31,2018 
APPEAL OF CALIFORNIA SERVICE CENTER DECISION 
PETITION: FORM 1-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a real estate developer, seeks to continue the Beneficiary's temporary employment as its 
general manager under the L-1 A nonimmigrant classification for intracompany transferees. 
Immigration and Nationality Act (the Act) section 101(a)(l5)(L), 8 U.S.C. § IJOI(a)(IS)(L). TheL-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, concluding that the record did not 
establish, as required, that it will employ the Beneficiary in the United States in a managerial or 
executive capacity. 
The matter is now before us on appeal. On appeal, the Petitioner asserts that the Director erred by 
disregarding evidence of the Beneficiary's high level of authority, and by misinterpreting the 
company's growth as an attempt to remedy deficiencies in the petition. 
Upon de novo review, we will dismiss the appeal. 
I. LEGAL FRAMEWORK 
To establish eligibility for theL-IA 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 JOJ(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. I d. 
II. DEFINITIONS 
"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 
Matter ofW-L-D- LLC 
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 
l0l(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. 
Based on the statutory 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. USCIS, 
469 F.3d 1313, 1316 (9th Cir. 2006); Champion World, 940 F.2d 1533. 
III. EMPLOYMENT IN A MANAGERIAL OR EXECUTIVE CAPACITY 
The Director denied the petition based on a finding that the Petitioner did not establish that it will 
employ the Beneficiary in a managerial or executive capacity. At various times in this proceeding, 
the Petitioner has referred to the Beneficiary's position as both managerial and executive, and 
therefore we will consider the requirements of both types of capacity. 
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 
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 and its staffing levels. 
A. Duties 
At first, the Petitioner listed the Beneficiary's responsibilities, such as recruitm~nt, trammg, and 
supervision of subordinates. After the Director advised that the Petitioner had not provided much 
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Matter ofW-L-D- LLC 
information about the Beneficiary's actual duties, the Petitioner submitted the following description 
(note: errors in the original have not been corrected): 
1) Selection and Supervising the contractor's work, which requires 40% of [the 
Beneficiary's] work hours .... [The Beneficiary J conducts site visits with Project 
Manager. . . . When potential problems are spotted during review, [the 
Beneficiary] will organize meeting with [the Petitioner's] architect, project 
manager, as well as the construction team to work on the solution .... 
2) Regular meeting and assigning manager level employees' work, listening to their 
reports on work progress, evaluating employee's work load, making decision on 
employee promotions, or new hiring needs. These takes up 15% of [the 
Beneficiary's J work hours. 
3) Meeting with Architects to make final decision on land and housing design and 
blueprint for new projects, up to 15% of [the Beneficiary's] work hours; 
4) Meeting with Accountant to review financial statements and tax returns ... , 
taking up to 10% of[the Beneficiary's] work hours; 
5) Liaison with Real Estate professionals to gain a knowledge of real estate market. 
Regular meeting with real estate consultant to make tina! decisions on price of 
purchasing lands and sale of properties. This takes up to 5% of [the 
Beneficiary's] work hours; 
6) Regular meeting with purchasing office for material market information, compare 
different products and make decisions on final suppliers. This takes up to 10% of 
[the Beneficiary's] work hours. 
7) Reporting project progress and financial status of company to Board of Directors 
... and other necessary duties of General Manager. This takes 5% of [the 
Beneficiary's J work hours. 
The Director found that the Petitioner had not provided enough specific details about the nature of 
the Beneficiary's work and the time devoted to various tasks. Also, the Director determined that the 
Petitioner had not shown how the Beneficiary's duties are primarily those of an executive or 
manager. Several of the tasks described appear to be at a supervisory level, or involve operational 
tasks that the Beneficiary performs himself instead of delegates to others. Also, the Petitioner did 
not have a purchase officer when it filed the extension petition, so the above list cannot be 
completely accurate with respect to the Beneficiary's duties at the time of tiling. 1 
On appeal, the Petitioner submits a third job description, which basically expands upon the second 
version of the job description· excerpted above. This latest version, however, strays even further 
from the Beneficiary's duties at the time of filing the extension petition. It refers to a second newly­
created position that did not yet exist when the Petitioner filed that petition. Also, some of the 
Beneficiary's tasks remain ill-defined, such as "liaison with other executives, consultants and 
professionals." 
1 
As will be discussed below, the Petitioner later submitted a new chart that added a purchase officer position. 
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Matter of W-L-D- LLC 
The nature of the Beneficiary's duties is necessarily affected by the subordinate staff available to 
relieve the Beneficiary from primarily performing non-qualifying tasks. Below, we will discuss 
questions and concerns relating to the Petitioner's claims regarding that staffing. 
B. Staffing 
The statutory definition of "managerial capacity" allows for both "personnel managers" and 
"function managers." See sections IOI(a)(44)(A)(i) and (ii) of the Act. The Petitioner does not 
contest the Director's finding that the Petitioner is not a· function manager (who manages an essential 
function within the organization). Instead, the Petitioner's emphasis on subordinate staffing 
indicates a claim that the Beneficiary is a personnel manager. 
If a petitioner claims that a beneficiary directly supervises other employees, those subordinate 
employees must be supervisory, professional, or managerial, and the beneficiary must have the 
authority to hire and fire those employees, or recommend those actions, and take other personnel 
actions. Sections IOI(a)(44)(A)(ii)-(iii) of the Act. 
The Petitioner also asserts that the Beneficiary is 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 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 management 
structure for a beneficiary to direct and a beneficiary must primarily focus on the broad goals and 
policies of the organization rather than the day-to-day operations of the enterprise. 
The Petitioner initially submitted an organizational chart showing the following structure: 
General Manager [the Beneficiary J 
Project Manager 
Real Estate 
Sales Mgr./Site 
Mgr. (part-time) 
Project Mgr. 
Assistant 
Architect 
I 
Design Asst. 
Admin. Asst./Exec. Asst. 
Accountant 
(part-time) 
Assistant 
(part-time) 
Later, in response to a request tor evidence, the Petitioner submitted a new chart that added a 
purchase officer position, and showed the office assistant and accountant reporting directly to the 
Beneficiary instead of to the administrative/executive assistant. The titles of some existing 
employees changed as well; for instance, the "architect" became the "design manager," and the "real 
estate sales manager" became the "real estate consultant., 
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Matter of W-L-D- LLC 
As the Director noted in the denial notice, a petitioner must establish that the position offered to a 
beneficiary meets applicable requirements at the time the petition was tiled. See Matter of Michelin 
Tire Corp., 17 l&N Dec. 248, 249 (Reg'l Comm'r 1978); see also 8 C.F.R. § 103.2(b)(l), which 
requires a petitioner to meet eligibility requirements at the time of tiling, and continuing through the 
adjudication of the petition. Therefore, the Petitioner must show that its organizational structure was 
qualifying at the time of tiling before we will consider any subsequent changes to that structure. 
The Director stated that the Petitioner's initial organizational chart did not show a level of 
organizational complexity that would warrant an executive position. (The Director did not address 
the Petitioner's eligibility, or otherwise, as a personnel manager with authority over managers, 
supervisors, professionals, or some combination thereof.) The Director also noted that, in response 
to the RFE, the Petitioner made "several material changes" including adding the purchase officer 
position and changing the "structural hierarchy." 
We agree with the Petitioner's observation on appeal that material changes are not inherently 
disqualifying. Furthermore, the Petitioner asserts that the changes were the natural result of the 
company's growth and development, rather than an attempt to change the company's circumstances 
to establish eligibility for benefit sought. 
An architect is a professional, as defined at section 101 (a)(3 2) of the Act, and some of the 
Beneficiary's subordinates are supervisors. This information is consistent with one element of 
managerial capacity, and the Beneficiary's hiring authority is consistent with another, but these 
factors by themselves do not suffice to show that the Beneficiary is primarily a personnel manager. 
Concerns remain about how much time the Beneficiary spends overseeing professional and 
supervisory employees. 
The Petitioner has claimed that the Beneficiary spends 15% of his time meeting with architects (both 
the company's own architect and outside contractors), but the Petitioner has purchased only a few 
parcels of land for development. At the time of filing, the Petitioner claimed only four parcels of 
land under development. Likewise, the Beneficiary purportedly spends another 15% of his time on 
personnel decisions such as hiring, evaluations, and personnel policies, but the Petitioner has not 
explained how the personnel needs of a company of its size (nine employees at the time of filing, 
with two added later) would consistently require hours of sustained attention each week. 
Review of the record shows several other areas of concern. The Petitioner previously stated that the 
project manager oversees "warehouse material management operations." On appeal, the Petitioner 
states that "[t]he purchasing office is responsible for ... warehouse management." None of the 
Petitioner's organizational charts show any warehouse workers, and the Petitioner did not document 
its ownership or rental of warehouse space. 
/ 
Also relating to space, t11e Petitioner initially submitted a copy of an office lease agreement for space 
to accommodate six occupants. The Petitioner did not explain how nine or more occupants fit into a 
space designed tor six, and did not, in the alternative, document any overflow office space. The 
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Matter ,if W-L-D- LLC 
Petitioner has since relocated, but the record does not show the capacity of the new location and the 
relocation does not resolve questions that existed at the time of filing. 
Also, apart from questions about the amounts paid to some workers (for example, $36,000 per year 
appears to be an extremely low salary for a full-time architect claiming a decade of experience), 
there is a major discrepancy in the Petitioner's tax and payroll documentation for 2015 and 2016. 
(The Petitioner claimed that the Beneficiary spends several hours each week reviewing tax and 
financial documents with the company's part-time accountant.) Quarterly returns and IRS Forms 
W-2, Wage and Tax Statements, show very different personnel costs when compared to the 
Petitioner's IRS Forms 1065, U.S. Returns of Partnership Income: 
W-2 salaries 
I 065 salaries 
I 065 total expenses 
2015 
$148,278 
61,778 
87,932 
2016 
$266,128 
86,232 
205,096 
We cannot ignore that financial documents that the Petitioner itself has submitted provide very 
different information about salaries paid (and, therefore, the company's staffing), and we cannot tell, 
from the available documentation; which set of figures (if either) is accurate. They cannot both be 
true and correct. (We note that the Beneficiary signed the returns, thereby attesting to their accuracy 
under penalty of perjury.) 
While the Petitioner may be an active and viable real estate development company with the 
Beneficiary controlling the organization, deficiencies and inconsistencies in the record prevent a 
finding that the Petitioner has met its burden of proof. The Petitioner has not established that it will 
employ the Beneficiary in a managerial or executive capacity under the extended petition. 
IV. PRIOR APPROVALS 
Noting approvals of prior petitions on the Beneficiary's behalf, the Petitioner states that the Director 
identified "no changes of law or facts" to explain the different outcome in this case. It must be 
emphasized that each petition filing is a separate proceeding with a separate record. In making a 
determination of statutory eligibility, U.S. Citizenship and Immigration Services (USC IS) is limited 
to the information contained in that individual record of proceeding. See 8 C.F.R. § 103.2(b)(l6)(ii). 
Under current binding policy, "[a]n adjudicator's fact-finding authority ... should not be constrained 
by any prior petition approval, but instead, should be based on the merits of each case." USCIS 
Policy Memorandum PM-602-0151, Rescission of Guidance Regarding Deference /o Prior 
Delerminations of Eligibilily in the Adjudicalion of Petitions for Extension of Nonimmigranl Sla/us 3 
(Oct. 23, 2017), https://www.uscis.gov/laws/policy-memoranda. The previously approved petitions 
are not before us at the Administrative Appeals Office, and therefore we cannot comment on how 
their records of proceedings may be similar or different to the one under review here. 
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Malter of W-L-D- LLC 
We are not required to approve applications or petitions where eligibility has not been demonstrated, 
merely because of prior approvals that may have been erroneous. See Ma/ler of' Church Scientology 
Jnt'l, 19 l&N Dec. 593, 597 (Comm'r 1988). USCIS is not required to treat acknowledged errors as 
binding precedent. Sussex Eng 'g. Ltd. v. Montgomery, 825 F.2d I 084, I 090 (6th Cir. 
1987). Furthermore, we are not bound to follow a contradictory decision of a service center. See La. 
Philharmonic Orchestra v. INS, 44 F. Supp. 2d 800, 803 (E.D. La. 1999). 
V. CONCLUSION 
The Petitioner has not established that it will employ the Beneficiary in a primarily managerial or 
executive capacity. 
ORDER: The appeal is dismissed. 
Cite as Ma/ler ofW-L-D- LLC, ID# 1221736 (AAO May 31, 2018) 
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