dismissed L-1A Case: Real Estate Development And Construction

o U.S. Citizenship 
.. and Immigration 
Services 
MATTER OF M-P-, LLC 
APPEAL OF VERMONT SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: SEPT. 21, 2016 
PETITION: FORM 1-129, PETITION FOR ANONIMMIGRANT WORKER 
The Petitioner, a real estate development and construction company, seeks to temporarily employ the 
Beneficiary as its general manager under the L-1 A nonimmigrant classification for intracompany 
transferees. See Immigration and Nationality Act (the Act) section 101(a)(15)(L), 8 U.S.C. 
§ 1101(a)(15)(L). The L-1A 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, Vermont Service Center, denied the petition on multiple grounds. The Director 
concluded that the Petitioner did not establish that it had a qualifying relationship with the 
Beneficiary's foreign employer or that it was doing business as defined by the regulations. Further, 
the Director found that the Petitioner did not demonstrate that the Beneficiary was employed in a 
managerial or executive capacity abroad or that he would be employed in a managerial or executive 
capacity in the United States. 
The matter is now before us on appeal. In its appeal, the Petitioner contends that the Director 
misinterpreted the Petitioner's asserted ownership and states that it is doing 1business according to the 
regulations. In addition, the Petitioner states that the Director erred by concluding, that the 
Beneficiary would not act in a managerial or executive capacity in the United States. 
Upon de novo review, we will dismiss the appeal. 
I. LEGAL FRAMEWORK 
To establish eligibility for the L-1 nonimmigrant visa classification, a qualifying organization must 
have employed the Beneficiary in a managerial or executive capacity, or in a specialized knowledge 
capacity, for one continuous year within three years preceding the Beneficiary's application for 
admission into the United States. Section 101(a)(15)(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, executive, or specialized knowledge 
capacity. !d. 
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Matter of M-P-, LLC 
The regulation at 8 C.F.R. § 214.2(1)(3) states that an individual petition filed on Form I-129, 
Petition for a Nonimmigrant Worker, shall be accompanied by: 
(i) Evidence that the petitioner and the organization which employed or will 
employ the alien are qualifying organizations as defined in paragraph 
(l)(l)(ii)(G) ofthis section. 
(ii) Evidence that the alien will be employed in an executive, managerial, or 
specialized knowledge capacity, including a detailed description of the 
services to be performed. 
(iii) Evidence that the alien has at least one continuous year of full-time 
employment abroad with a qualifying organization within the three years 
preceding the filing of the petition. 
(iv) Evidence that the alien's prior year of employment abroad was in a 
position that was managerial, executive or involved specialized knowledge 
and that the alien's prior education, training, and employment qualifies 
him/her to perform the intended services in the United States; however, 
the work in the United States need not be the same work which the alien 
performed abroad. 
II. QUALIFYING RELATIONSHIP 
The first issue to addre~s is whether the Petitioner estab_lished that it has a qualifying relationship 
with the Beneficiary's foreign employer. 
To establish a "qualifying relationship" under the Act and the regulations, a petitioner must show 
that the beneficiary's foreign employer and the proposed U.S. employer are the same employer (i.e. 
one entity with "branch" offices), or related as a "parent and subsidiary" or as "affiliates." See 
generally section 101(a)(15)(L) ofthe Act; 8 C.F.R. § 214.2(1). 
The pertinent regulations at 8 C.F .R. § 214.2(1)(1 )(ii) define the term "qualifying organization" and 
related terms as follows: 
(G) Qualifying organization means a United States or foreign firm, 
corporation, or other legal entity which: 
(I) Meets exactly one of the qualifying relationships specified in the 
definitions of a parent, branch, affiliate or subsidiary specified in 
paragraph (1)(1 )(ii) ofthis section; 
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(b)(6)
Matter of M-P-, LLC 
(I) Parent means a firm, corporation, or other legal entity which has 
subsidiaries. 
(J) Branch means an operating division or office of the same organization 
housed in a different location. 
(K) Subsidiary means a firm, corporation, or other legal entity of which a 
parent owns, directly or indirectly, more than half of the entity and 
controls the entity; or owns, directly or indirectly, half of the entity and 
controls the entity; or owns, directly or indirectly, 50 percent of a 50-50 
joint venture and has equal control and veto power over the entity; or 
owns; directly or indirectly, less than half of the entity, but in fact controls 
the entity. 
(L) Affiliate means 
(1) One of two subsidiaries both of which are owned and controlled by 
the same parent or individual, or 
(2) One of two legal entities owned and controlled by the same group 
of individuals, each individual owning and controlling 
approximately the same share or proportion of each entity. 
A. Evidence of Record 
The Petitioner filed the Form 1-129 on February 9, 2016. On the L Classification Supplement to 
Form I-129, the Petitioner identified the Beneficiary's last foreign employer as 
------ The Form I-129 indicated that the Petitioner and the foreign entity are 
affiliates. 
In support of the petition, the Petitioner provided a copy of its "Certificate of Formation, Limited 
Liability Company" filed in Texas on May 12, 2011. The certificate listed the Beneficiary as the 
"governing person." The certificate also stated the following: 
This LLC is being formed pursuant to a Plan of Conversion. Prior to this 
conversion this entity was a corporation , by the name of 
organized/registered in Texas on 10/22/2010. 
The Petitioner submitted a copy of its 2014 IRS Form 1065 U.S. Return of Partnership Income. In 
Schedule K-1 of the Form 1065, it indicated that the Beneficiary owned 50% of the company at the 
beginning of the year and 100% at the end of the year. Schedule K -1 also reflected that 
owned 50% of the company at both the beginning and the end of the year. In addition , the 
Petitioner provided a copy of its 2013 Form 1065 stating in Schedule B that it was 50% owned by 
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(b)(6)
Matter of M-P-, LLC 
the Beneficiary and 50% owned by The Petitioner also submitted a certificate of 
amendment to its articles of organization, filed May 21, 2014, removing as a 
member. Finally, the Petitioner provided a 2015 profit and loss statement including a line item for 
"Member Equity," identifying the members as the Beneficiary and' 
With respect to the ownership of the foreign entity, the Petitioner provided a copy of the foreign 
entity's formation document dated February 7, 2013. The document included a list of shareholders, 
types of shares, and contributions as follows: 
SHAREHOLDERS 
[The Beneficiary] 
TOTAL 
SERIES "A" 
16,500 
16,500 
33,000 
SERIES "B" 
17,000 
17,000 
VALUE 
$17,000 
$16,500 
$16,500 
$50,000 
The formation document indicated that "the owners of "B" class stock have preferential rights in 
case of liquidation," but otherwise it did not state a difference in rights between holders of "A" and 
"B" class stock. 
The Director later issued a request for evidence (RFE) stating that the Petitioner had not established 
ownership and control in the U.S. company. As such, the Director requested that the Petitioner 
submit additional documentation to demonstrate ownership in the company, including meeting 
minutes, evidence of capital contributions to the company, and articles of organization listing the 
members of the company and their percentage of ownership. 
In response, the Petitioner stated that "[The Beneficiary] has ownership and control of BOTH the 
foreign and U.S. Entity." The Petitioner submitted articles of incorporation dated March 3, 2016, 
reflecting that the company had issued all 100 shares of "stock" to the Beneficiary. The Petitioner 
otherwise did not provide any additional evidence specific to its ownership. 
In denying the petition, the Director concluded that the Petitioner did not submit sufficient evidence 
to establish that the Beneficiary owns and controls the foreign entity. Further, the Director stated 
that the Petitioner did not demonstrate its ownership, pointing to the fact that the articles of 
incorporation submitted in response to the RFE post-dated the filing of the petition. 
B. Analysis 
Upon review of the petition and the evidence of record, including materials submitted in support of 
the appeal, we conclude that the Petitioner has not established that it ·has a qualifying relationship 
with the foreign entity. 
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(b)(6)
Ma_tter of M-P-, LLC 
I 
The regulation and case law confirm that ownership and control are the factors that must be 
examined in determining whether a qualifying relationship exists between United States and foreign 
entities for purposes of this visa classification. See Matter of Church Scientology Int 'l, 19 I&N Dec. 
593 (BIA 1988); see also Matter ofSiemens Med. Sys., Inc., 19 I&N Dec. 362 (BIA 1986); Matter of 
Hughes, 18 I&N Dec. 289 (Comm 'r. 1982). In the context of this visa petition , ownership refers to 
the direct or indirect legal right of possession of the assets of an entity with full power and authority 
to control; control means the direct or indirect legal right and authority to direct the establishment , 
management, and operations of an entity. Matter of Church Scientology Int 'l, 19 I&N Dec. at 595. 
As general evidence ofa Petitioner's claimed qualifying relationship, a certificate of formation or 
organization of a limited liability company (LLC) alone is not sufficient to establish ownership or 
control of an LLC. LLCs are generally obligated by the jurisdiction of formation to maintain records 
identifying members by name, address, and percentage of ownership and written statements of the 
contributions made by each member, the times at which additional contributions are to be made, 
events requiring the dissolution of the limited liability company , and the dates on which each 
member became a member. These membership records, along with the LLC's operating agreement , 
certificates of membership interest, and minutes ofmembership and management meetings , must be 
examined to determine the total number of members , the percentage of each member's ownership 
interest, the appointment of managers, and the degree of control ceded to the managers by the 
members. Additionally, a petitioning company must disclose all agreements relating to the voting of 
interests, the distribution of profit, the management and direction of the entity, and any other factor 
affecting actual control ofthe entity. Matter ofSiemens Medical Sys., Inc., 19 I&N Dec. 362. 
In the current matter, the Petitioner did not submit sufficient evidence to establish its ownership. 
The Director requested that the Petitioner submit additional evidence to establish its ownership such 
as meeting minutes, evidence of capital contributions to the company, and article"s of organization 
listing the members of the company and their percentage of ownership. However, in response , the 
Petitioner submitte,d articles of incorporation reflecting the issuance of stock in 2016, despite 
asserting that it had converted to a limited liability company in 2011. Further, the articles of 
incorporation provided in response to the Director's RFE post-date the filing of the petition, while 
other documentation indicates that the company has been in existence since October 22, 2010, and 
that it converted to a limited liability company in 2011. Otherwise , the Petitioner provided no 
additional evidence to reflect its actual ownership, such as its operating agreement , membership 
certificates, or meeting minutes. Failure to submit requested evidence that precludes a material line 
of inquiry shall be grounds for denying the petition. 8 C.F .R. § 1 03 .2(b )( 14 ). 
Although the Petitioner ' s 2014 Form 1065 appears to indicate that there was a change in ownership 
in the company during that year, it reflects that the Beneficiary owned 100% of the company at the 
end of this year, while still held a 50% interest. Finally, the Petitioner's 2015 profit 
and loss statement indicates that a company called has an ownership interest in the 
company, but the Petitioner has not provided any additional amendments to its articles of 
organization reflecting this change. The Petitioner has not resolved these inconsistencies with 
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(b)(6)
Matter of M-P-, LLC 
independent, objective evidence pointing to where the truth lies. Matter of Ho, 19 I&N Dec. 582, 
591-92 (BIA 1988). 
Furthermore, even if the Petitioner had provided consistent, probative evidence to establish the 
Beneficiary's ownership in the Petitioner, it has not demonstrated that the Beneficiary has a 
controlling interest in the foreign entity as asserted. The Petitioner submitted the foreign entity's 
formation document reflecting that the Beneficiary owns only 17,000 of the Mexican company's 
50,000 outstanding shares. The Petitioner 
has not submitted supporting documentation to support a 
conclusion that he exercises control over the Mexican entity and the two other shareholders based on 
his minority ownership. The evidence is insufficient to establish that the Petitioner is an affiliate, 
subsidiary, parent, or branch of the foreign entity. 
Based on the deficiencies and inconsistencies discussed above, the Petitioner has not established that 
it has a qualifying relationship with the foreign entity. 
III. U.S. ENTITY DOING BUSINESS 
The next issue to address is whether the Petitioner has demonstrated that it was doing business as of 
the date of the filing of the petition. 
The regulations define a qualifying organization as one doing business as an employer in the United 
States. See 8 C.F .R. § 214.2(1)(1 )(ii)(2). The regulation at 8 C.F .R. § 214.2(1)(1 )(ii)(H) defines 
' ' 
"doing business" as follows: 
Doing business means the regular, systematic, and continuous 
provision of goods 
and/or services by a qualifying organization and does not include the mere presence 
of an agent or office of the qualifying organization in the United States and abroad. 
A. Evidence of Record 
As stated previously herein, the Petitioner submitted documentation indicating that it was formed in 
Texas on October 22,2010. 1 The Form I-129 reflected that the Petitioner generated $54.38 in revenue 
in 2015, while a submitted profit and loss statement covering that year indicated that it had earned 
$54.78 in "interest income." The Petitioner indicated its current number of employees as "2 & 
subcontractors." In a support letter provided along with the petition, the Petitioner stated the following 
with respect to its business activities: 
1 United States Citizenship and Immigration Service (USCIS) records reflect that the Beneficiary was approved for an L-
1A visa from February 14,2011, to February 13,2012, but that an L-1A extension petition filed on December 29, 2011, 
was denied. Our records indicate that a foreign entity, filed both of the aforementioned 
petitions. 
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(b)(6)
Matter of M-P-, LLC 
In 2014 [the Petitioner] changed the direction of its investment in the United States 
to one of development. Throughout 2015 the U.S. entity has focused on investing 
approximately $1 million in the purchase of property for development, as well as 
construction and marketing. · 
Although this recent investment has not begun to generat~ income for the U.S. entity 
itself, we are currently employing two direct full time employees and about a dozen 
subcontractors. 
The Petitioner submitted several invoices from contractors billing for services such as surveying, 
permits, ground maintenance, architecture, civil and structural engineering, and preliminary design 
work. The Petitioner also provided bank statements for each month of 2015 reflecting account balances 
below $1,000 during nine of these months. The Petitioner further submitted documentation indicating 
that it had purchased 1.7 acres ofland in in November 2014 and accompanying marketing 
materials reflecting proposed construction of several condominiums and retail spaces on this land to, be 
known as the development. 
In the RFE, the Director noted that the Petitioner had submitted documentation reflecting its payment of 
vendors rather than evidence reflecting its continuous provision of goods and services. The Director 
explained that the evidence was insufficient to demonstrate that the Petitioner was doing business. As 
such, the Director requested that the Petitioner submit a more recent tax return, audited financial 
statements, major sales invoices, bank statements, vendor, supplier, or customer contracts, or other 
relevant documentation reflecting its regular provision of goods and services. 
In response, the Petitioner provided an audited profit and loss statement reflecting that it had earned 
$54.78 in income_ during 2015 and that its net income was -$141,647.17. The profit and loss statement 
furtherindicated that the Petitioner had paid $90,010.05 in "professional fees" during 2015, including 
$11,850 to an accountant, $2071.78 in legal fees, $65,000 to architects, and $11,088.27 in other 
professional fees. In the assets portion of its balance sheet, its audited financials reflected that the 
company's two bank accounts had a balance of -$274.53 and $503.47 respectively. 
In addition, the Petitioner submitted a bank statement from January 2016 showing a balance of 
$2948.03 and indicating several large wire transfers from a totaling $31,500, and 
another wire transfer from the Beneficiary in the amount of$11,500. The Petitioner further provided an 
IRS Form 941 from the fourth quarter of 2015 indicating that it had no employees and that it had paid 
$6000 in wages. 
In denying the petition, the Director emphasized that there was a discrepancy in the Petitioner's stated 
income from its first profit and loss statement and the 
audited financials provided in response to the 
RFE. Further, the Director stated that the Petitioner had not provided supporting documentation to 
substantiate its business activities. 
7 
Matter of M-P-, LLC 
In its appeal, the Petitioner asserts· that it is doing business and contends that the difference in stated 
income between its two profit and loss statements was due to a change in the way it accounted for 
mvmces. 
B. Analysis 
Upon review of the Petitioner's assertions and additional evidence submitted on appeal, the evidence 
does not demonstrate that the Petitioner was doing business at the time it filed the petition. 
As discussed, the Petitioner initially provided a profit and loss statement from 2015 reflecting that it 
generated $54.78 in income during 2015 and several invoices reflecting payments to contractors. 
However, the Petitioner did not provide any evidence that it was generating income or revenue or 
that it was providing goods or services. As such, the Director understandably requested that the 
Petitioner submit supporting evidence reflecting the provision of\ goods and services. In response, 
the Petitioner provided little to substantiate that it is regularly providing good and services, such as 
invoices it issued to customers or contracts it has in place with customers or vendors. Failure to 
submit requested evidence that precludes a material line of inquiry shall be grounds for denying the 
petition. 8 C.P.R.§ 103.2(b)(14): 
Instead, the Petitioner submitted a bank statement from January 2016 indicating a relatively low 
balance of $2948.03 and showing that it is receiving most of its income from an unidentified 
individual and the Beneficiary. This evidence does not reflect that the Petitioner is providing goods 
or services or receiving revenue as a result. Further, the Petitioner provided an audited financial 
statement again reflecting a very low level of revenue, or $54.78 from "interest income." 
In addition, the Petitioner states directly on the record that a "recent investment has not begun to 
generate income." The record shows that the Petitioner purchased 1.7 acres of land at the end of 
2014. However, as of the date of filing in February 2016, it does not appear that the Petitioner has 
progressed in the development of its real estate investment beyond the architecturaJ drawing and 
preliminary planning stage. While we acknowledge that due to the nature of the business, the 
Petitioner would not be expected to show a large volume of transactions or sales, the Petitioner has 
shown little progress on the project more than one year after the land purchase and has not provided 
any plans or estimates as to when the company may expect to generate income through the provision 
of goods or services. 
Therefore, for the reasons set forth above, we find the Petitioner has not demonstrated that it was doing 
business as required by the regulations at the time it filed the petition. 
IV. U.S. EMPLOYMENT IN A MANAGERIAL OR EXECUTIVE CAPACITY 
The Director further denied the petition based on a finding that the Petitioner did not establish that 
the Beneficiary would be employed in a managerial or executive capacity in the United States. 
8 
Matter of M-P-, LLC 
The Petitioner does not claim that the Beneficiary will be employed in an executive capacity. 
Therefore, we restrict our analysis to whether the Beneficiary will be employed in a managerial 
capacity. 
Section 101(a)(44)(A) of the Act, 8 U.S.C. § 1101(a)(44)(A), defines the term "managerial capacity" 
as "an assignment within an organization in which the employee primarily": " 
(i) manages the organization, or a department, subdivision, function, or 
component of the organization; 
(ii) 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; 
(iii) if another employee or other employees are directly supervised, has the 
authority to hire and fire or recommend those as well as other personnel 
actions (such as promotion and leave authorization), or if no other employee 
is directly supervised, functions at a senior level within the organizational 
hierarchy or with respect to the function managed; and 
(iv) exercises discretion over the day-to-day operations of the activity or 
function for which the employee has authority. 
Further, "[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." 
If staffing levels are used as a factor in determining whether an individual is acting in a managerial 
or executive capacity, USCIS must 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) 
ofthe Act. 
A. Evidence of Record 
On the Form 1-129, the Petitioner indicated that it has two employees and "subcontractors." As 
previously stated, the Petitioner indicated that it is involved in "development," noting that it had 
recently invested $1 million "in the purchase of a property for development, as well as construction 
and marketing." 
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(b)(6)
Matter of M-P-, LLC 
The Petitioner provided a 2015 IRS Form W-2, Wage and Tax Statement indicated that it paid the 
Beneficiary $30,000 during that year. The Petitioner also submitted an IRS Form 1099, 
Miscellaneous Income reflecting that it paid $11,850 to its accountant. As previously mentioned, the 
Petitioner provided a profit and loss statement indicating that the Petitioner had paid $90,010.05 in 
"professional fees" during 2015, including $11,850 to an accountant, $2071.78 in legal fees, $65,000 
to architects, and $11,088.27 in other professional fees. The Petitioner submitted invoices from 
contractors reflecting that it paid $90,000 to and $6775 to 
during 2015. 
The Petitioner also submitted the following organizational chart: 
The Petitioner provided a duty description for the Beneficiary indicating that he would perform some 
of the following duties: 
• [Be the highest] authority in the LLC. 
• Accountable for [Petitioner] financial performance. 
• Ensures [Petitioner] assets are efficiently utilized in a responsible manner. 
• Directs [Petitioner] strategic planning activities and provides leadership 
and overall guidance in both administration and operation. 
• Leads [Petitioner] with a clearly defined sense of business direction and 
purpose. 
• Develops well defined strategy for [the Petitioner]. 
• Establishes management processes and specific performance measure that 
clearly support the long-term strategy. 
• Assess performance and makes timely changes in strategy, structure and 
resource allocations. 
• Defines appropriate long-term financial objectives and sets annual goals 
consistent with the business strategy. 
10 
Matter of M-P-, LLC 
• Establishes, monitors and maintains appropriate management systems to 
provide effective control of operations. 
• Demonstrates diligence in making the appropriate certifications required 
under any governing securities and corporate legislation. 
• Effectively communicates [Petitioner] vision and values for Suncor to all 
employees. 
• Ensures that there is operation an[ d] effective framework of governance. 
• Aligns accountabilities and authorities and defines any required policies, 
standards and guidelines. 
• Ensures programs are in place that will aid in retaining and motivating the 
top management team and attracting new executives as needed. 
• Promotes the development of effective recruiting, training, retention and 
management development programs for all employees. 
In the RFE, the Director stated that the Petitioner had submitted tax documentation indicating that it 
had only two employees, but provided an organizational chart reflecting several positions. The 
Director further noted that the Petitioner's organizational chart did not include duties, credentials, 
salaries, or other details related to its asserted positions. As such, the Director requested that the 
Petitioner submit a letter describing the Beneficiary's typical managerial or executive duties. The 
Director asked the Petitioner to provide an organizational chart indicating the duties, education 
levels, and salaries for each asserted member of the organizational structure. In addition, the 
Director requested that the Petitioner submit state quarterly wage reports for each quarter of 2015. 
In response, the Petitioner stated the following with respect to the Beneficiary's proposed role as 
general manager: 
As the Owner/Manager of the entity he is in a managerial position in the United 
States (we would like to direct the officer to the law wherein it is the DUTIES that 
prevail, not the number of workers -if any - that are listed in an organizational 
chart) 
· In a support letter, the Petitioner stated that the Beneficiary "is responsible for the management of 
[the Petitioner] including the essential functions of the organization," that he has "sole discretion 
over the day to day operations" and that he makes "all decisions with sub contractors." The 
Petitioner further submitted the following duty description for the Beneficiary: 
• Directs and Manages strategic planning for [the Petitioner] and provides 
leadership and over all guidance in both administration and operation (20%) 
• Directs and coordinates financial and annual budget activities to fund 
operations, maximize investments (20%) 
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(b)(6)
Matter of M-P-, LLC 
• Analyze operations to evaluate performance of the company or its staff in 
meeting objectives or to determine areas of potential cost reduction, program 
improvery.ent, or policy changes and identify the direction of the business and 
it's future purpose (20%) 
• Direct, plan, or implement policies, objectives, or activities of organizational 
or businesses to ensure continuing operations, to maximize returns on 
investments, (20%) 
• Direct human resources and assesses performance, defines appropriate long­
term financial objectives and develops annual goals for the company ( 10%) 
• Oversees effective communication within the company, promotes the 
development of effective recruiting, training, retention and management 
development programs for all employees ( 10%) 
The Petitioner provided the following organizational chart: 
Gl!!neral Manager· The 
Beneficiary 
$22,000 $12,000 
In addition, the Petitioner submitted IRS Forms 941, Employer's Quarterly Federal Tax Returns for 
the third and fourth quarters of 2015, both which reflected that the company had no employees and 
paid $6000 in wages. 
In denying the petition, the Director stated that the Petitioner 's organizational chart consisted 
entirely of independent contractors and found that it had not sufficiently supported their engagement 
with evidence such as contracts and information regarding its relationship with these contractors. 
The Director pointed to the fact that the company had no employees during the two quarters prior to 
the filing of the petition according to submitted tax documentation. The Director concluded that the 
Petitioner did not establish that it employed sufficient employees or contractors to relieve the 
Beneficiary from primarily performing non-qualifying operational duties. 
In its appeal, the Petitioner asserts that the Beneficiary will be employed in a managerial position 
and emphasizes that he is the sole owner of the company. The Petitioner states that it is "at a loss to 
understand how being solely responsible for the day to day managerial and fun6'tional decisions of 
the company does not indicate he is in a managerial position." The Petitioner further emphasizes 
12 
Matter of M-P-, LLC 
that "there is no magic number of employees, nor does a need for employees - regardless of number 
- exist for approval of such an I -129 petition." 
B. Analysis 
" Upon review of the petition and the evidence of record, including materials submitted in support of 
the appeal, we conclude that the Petitioner has not established that the Beneficiary would be 
employed in a managerial or executive capacity in the United States. 
When examining the managerial or executive capacity of the Beneficiary, we will look first to the 
Petitioner's descriP.tion of the job duties. See 8 C.F .R. § 214.2(1)(3 )(ii). 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. !d. 
The definitions of managerial and executive capacity each have two parts. First, the Petitioner must 
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. 
In the current matter, the Petitioner has submitted a vague duty description that does not demonstrate 
that the Beneficiary wou~d devote his tim,e primarily to qualifying managerial tasks. The 
Beneficiary's duty description is so general that the listed tasks and responsibilities could apply to 
any manager in any company or industry. In fact, it makes no reference to the real estate or 
development industries in which the Petitioner claims to operate. For instance, the description 
indicates that the Beneficiary will "direct and manage strategic planning," "direct and coordinate 
financial and budget activities," "analyze operations to evaluate performance of the company," 
"determine potential cost reduction, program improvement, or policy changes," "direct, plan, or 
implement policies, objectives, or activities," "define appropriate long-term financial objectives and 
develop annual goals," and "promote the development of effective recruiting, training, retention and 
management development programs," amongst various other vague duties. 
However, at no point does the Petitioner articulate or provide supporting documentation to 
substantiate the Beneficiary's performance of his asserted managerial duties. The Petitioner 
provides no details or documentation to corroborate strategic planning he has implemented, financial 
issues he has faced and overcome, operations he has overseen, program improvement and policy 
changes he has established, policies or objectives he has implemented, financial objectives or annual 
goals he has set, or management development programs he has initiated. It is reasonable to expect 
that the Petitioner would provide some detail and documentation regarding the Beneficiary's specific 
actions, particularly since it began employing him as general manager as far back as 2011. Reciting 
a beneficiary's vague job responsibilities or broadly cast business objectives is not sufficient; the 
regulations Tequire a detailed description of the beneficiary's daily job duties. Conclusory assertions 
13 
Matter of M-P-, LLC 
regarding; a beneficiary's employment capacity are not sufficient. The actual duties themselves will 
reveal the true nature of the employment. F edin Bros. Co., Ltd. v. Sava, 724 F. Supp. 11 03, 11 08 
(E.D.N.Y. 1989), aff'd, 905 F.2d 41 (2d. Cir. 1990). 
In addition, various discrepancies in the Beneficiary's duty description leave significant question as 
to whether they accurately reflect the duties he will perform. For instance, the Petitioner states that 
the Beneficiary will be responsible for establishing "management processes and specific 
performance measures," but the evidence indicates that the Petitioner has no managers beyond the 
Beneficiary and no revenue or apparent operations for which performance measures would be 
relevant. The Beneficiary's initial duty description states he will provide "vision and values for 
Suncor to all employees," apparently referring to another unrelated entity that is not otherwise 
mentioned in the record. The Petitioner states that the Beneficiary will develop "management 
programs" and retain and motivate "the top management team," however, the company has no 
apparent managers to develop, retain, or 'motivate. The Petitioner has not resolved these 
inconsistencies with independent, objective evidence pointing to where the truth lies. Matter of Ho, 
19 I&N Dec. 582, 591-92 (BIA 1988). 
Here, 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 101(a)(44) of the Act. By statute, eligibility for this classification 
requires that the duties of a position be "primarily" of an executive or managerial 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 Jevel of authority with respect to 
discretionary decision-making, the position descriptions alone are insufficient to establish that her 
actual duties, as of the date of filing, would be primarily managerial or.executive in nature. 
Beyond the required description of the job duties, USCIS reviews the totality of the record when 
examining the claimed managerial or executive capacity of a beneficiary, including 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. 
As noted, the Petitioner asserts that the Beneficiary will act in a managerial capacity. The statutory 
definition of "managerial capacity" allows for both "personnel managers" and "function managers." 
See sections 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. 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; 8 C.F.R. § 214.2(l)(l)(ii)(B)(4). 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 
14 
Matter of M-P-, LLC 
I 
those employees, or recommend those actions, and take other personnel actions. Sections 
101(a)(44)(A)(ii)-(iii) of the Act; 8 C.F.R. §§ 214.2(l)(l)(ii)(B)(2)-(3). 
In the current matter, the Petitioner has not submitted sufficient evidence to establish that the 
Beneficiary primarily oversees other managers, supervisors, or professionals. For instance, tax 
documentation reflects that the Petitioner had no employees in the third and fourth quarter of 2015. In 
contrast, the Petitioner states that it had two fulltime employees as of the date of the petition, but 
provides no evidence to substantiate this assertion. Further, the Petitioner does not submit evidence to 
demonstrate that its various independent contractors are under the Beneficiary's direct control. In fact, 
there is no evidence of any payments to several of the contractors identified on the organizational 
charts. 
Although we concur with the Petitioner that there is no "magic number" of employees or contractors 
necessary to qualify a Beneficiary as a manager under the regulations, this does not relieve the 
Petitioner from its burden to substantiate the existence and duties of the Beneficiary's claimed 
subordinate managers or professionals, including evidence that these employees or contractors 
primarily relieve the Beneficiary from performing non-qualifying operational duties. In fact, the 
Director requested that the Petitioner submit duties for the Beneficiary's claimed subordinates, but it 
did not submit this evidence crucial to understanding the Petitioner's organizational structure, 
operations, and the Beneficiary's place therein. 
In its appeal, the Petitioner states that the Beneficiary will manage "essential functions" of the 
organization, suggesting that the Beneficiary will be employed primarily as a "function manager." The 
term "function manager" ~pplies generally when a beneficiary does not supervise or control the work 
of a subordinate staff but instead is primarily responsible for managing an "essential function" within 
the organization. See section 101(a)(44)(A)(ii) ofthe Act. The term "essential function" is not defined 
by statute or regulation. If a petitioner claims that a beneficiary will manage an essential function, a 
petitioner must clearly describe the duties to be performed in managing the essential function, i.e., 
identify the function with specificity, articulate the essential nature of the function, and establish the 
proportion of a beneficiary's daily duties dedicated to managing the essential function. See 8 C.F .R. § 
214.2(1)(3)(ii). In addition, a petitioner's description of a beneficiary's daily duties must demonstrate 
that the beneficiary will manage the function rather than perform the duties related to the function. 
Here, the Petitioner has not provided sufficient evidence to demonstrate that the Beneficiary would act 
primarily as a function manager. First, the Petitioner does not clearly articulate the function, or 
functions, the Beneficiary will manage. In fact, the record contains little information on the nature of 
the Petitioner's business, its activities, or the Beneficiary's actual duties. Further, as discussed, the 
Petitioner indicates that the Beneficiary engages several independent contractors, who presumably may 
relieve the Beneficiary from performing some non-qualifying operational tasks. However, the 
Petitioner did not adequately document the engagement of most of these contractors, by including 
contracts or other evidence to establish that they are under the direction and control of the Beneficiary. 
Further, the Petitioner has not articulated what duties these independent contractors perform and we 
cannot determine that these individuals and entities are primarily relieving the Beneficiary from 
15 
Matter of M-P-, LLC 
performing non-qualifying tasks. Therefore, the Petitioner has not established that the Beneficiary will 
act as a function manager. 
Based on the deficiencies and inconsistencies discussed above, the Petitioner has not established that 
the Beneficiary will be employed in a managerial or executive capacity in the United States. 
V. FOREIGN EMPLOYMENT IN A MANAGERIAL OR EXECUTIVE CAPACITY 
The Director also denied the petition finding the Petitioner did not establish that the Beneficiary had 
been employed in a qualifYing managerial or executive capacity abroad. In denying the petition, the 
Director found that the Beneficiary's asserted foreign duties were not substantiated with supporting 
evidence and that they were not sufficiently detailed to demonstrate that his position was managerial. 
Further, the Director pointed to the lack of information on the Beneficiary's stated subordinates, 
including a lack of salaries and educational credentials. 
In its appeal, the Petitioner does not address this basis for denial in its {ppellate brief or provide any 
additional evidence related to the Beneficiary's foreign employment. Following a review of the 
evidence, we concur with the Director's decision that the Petitioner has not established that the 
Beneficiary was employed abroad in a managerial or executive capacity. Since the three other grounds 
of dismissal are dispositive of the Petitioner's appeal and the Petitioner has not specifically objected 
this ground for denial, we will not address this issue further. Nevertheless, we note that if the 
Petitioner seeks to employ the Beneficiary in this classification in the future, it will need to submit 
sufficient evidence to establish that the Beneficiary was employed abroad in a qualifying managerial 
or executive capacity. 
VI. ONE YEAR OF FOREIGN EMPLOYMENT 
Beyond the decision of the Director, the Petitioner did not establish that the Beneficiary had at least 
one continuous year of full-time employment abroad with a qualifying organization within the three 
years preceding the filing of the petition. 
The regulation at 8 C.P.R. § 214.2(1)(3)(iii) states that the Petitioner must submit "evidence that the 
[foreign national] has at least one continuous year of full-time employment abroad with a qualifying 
organization within the three years preceding the filing of the petition." 
Further, the regulation at 8 C.F .R. § 214.2(1)(1 )(ii)(A) defines "intracompany transferee" as: 
An alien who, within three years preceding the time of his or her application for 
admission into the United States, has been employed ab~oad continuously for one 
year by a firm or corporation or other legal entity or parent, branch, affiliate or 
subsidiary thereof, and who seeks to enter the United States temporarily in order 
to render his or her services to a branch of the same employer or a parent, 
affiliate, or subsidiary thereof in a capacity that is managerial, executive or 
16 
(b)(6)
./ 
Matter of M-P-, LLC 
involves specialized knowledge. Periods spent in the United States in lawful 
status for a branch of the same employer or a parent, affiliate, or subsidiary 
thereof and brief trips to the United States for business or pleasure shall not be 
interruptive of the one year of continuous employment abroad but such periods 
shall not be counted toward fulfillment of that requirement. 
The evidence submitted with respect to the Beneficiary's asserted foreign employment includes a 
number of discrepancies and insufficiencies leaving significant question as to whether the Beneficiary 
was employed for one year with its asserted foreign affiliated. 
In the Form 1-129, the Petitioner states that the Beneficiary's foreign employer is 
As stated previously herein, the Petitioner submitted the foreign entity's 
formation document dated in 2013. The Petitioner did not state the Beneficiary's exact dates of 
employment with this entity, but provided 2015 biweekly paystubs for the Beneficiary which were 
intended to document his one year of foreign employment. However , the paystubs were issued by 
not and the payment date of 
each is listed as February 29, 2016, which post-dates the filing of the petition. In addition, the paystubs 
reflect that the Beneficiary started his employment with this foreign company in January 2007.
2 
The 
Petitioner has not resolved these inconsistencies with independent, objective evidence pointing to where 
the truth lies. Matter of Ho, 19 I&N Dec. 582, 591-92 (BIA 1988). 
Therefore, based on the deficiencies and inconsistencies discussed above, the Petitioner has not 
established that the Beneficiary had at least one continuous year of full-time employment abroad with a 
qualifying organization within the three years preceding the filing of the petition. 
VII. CONCLUSION 
The petition will be denied and 
the appeal dismissed for the above stated reasons, with each 
considered as an independent and alternative basis for the decision. In visa petition proceedings, the 
burden of proving eligibility for the benefit sought remains with the petitioner. Section 291 of the 
Act, 8 U.S.C. § 1361-? Matter of Otiende, 26 I&N 127, 128 (BIA 2013). Here, that burden has not 
been met. 
ORDER: The appeal is dismissed. 
Cite as Matter of M-P-, LLC, ID# 10307 (AAO Sept. 21, 2016) 
2 USCIS records also reflect that the Beneficiary made frequent trips to the United States throughout 2015 . The 
Beneficiary's foreign employment must occur entirely outside the United States; therefore , the time he spent in the 
United States during 2015 would not count towards his one year of continuous foreign employment For this reason, 
even if the claimed foreign employer had issued them, the submitted pays tubs from 2015 would be insufficient to 
establish that the Beneficiary had met the one year of foreign employment requirement 
17