dismissed L-1A Case: Real Estate Investment

identifying data deleted to 
prevent clearly unwarranted 
invasion of personal privacy 
PUBLlCCOPY 
DATE: JUN 2 2 2011 Office: CALIFORNIA SERVICE CENTER 
IN RE: Petitioner: 
Beneficiary: 
U.S. Department of Homeland Security 
U.S. Citizenship and Innnigration Services 
Administrative Appeals Office (AAO) 
20 Massachusetts Ave .. N.W., MS 2090 
Washington. DC 20529-2090 
u.s. Citizenship 
and Immigration 
Services 
FILE: 
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(1S)(L) of the Immigration 
and Nationality Act, 8 U.S.C. § 1101(a)(IS)(L) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
Enclosed please find the decision of the Administrative Appeals Office in your case. All of the documents 
related to this matter have been returned to the office that originally decided your case. Please be advised that 
any further inquiry that you might have concerning your case must be made to that office. 
If you believe the law was inappropriately applied by us in reaching our decision, or you have additional 
information that you wish to have considered, you may file a motion to reconsider or a motion to reopen. The 
specific requirements for filing such a request can be found at 8 C.F.R. § 103.5. All motions must be 
submitted to the office that originally decided your case by filing a Form 1-290B, Notice of Appeal or Motion, 
with a fee of $630. Please be aware that 8 C.F.R. § 103.S(a)(I)(i) requires that any motion must be filed 
within 30 days of the decision that the motion seeks to reconsider or reopen. 
Perry Rhew 
Chief, Administrative Appeals Office 
www.uscis.gov 
Page 2 
DISCUSSION: The Director, California Service Center, denied the nonimmigrant visa petition. The matter is 
now before the Administrative Appeals Office (AAO) on appeal. The AAO will dismiss the appeal. 
The petitioner filed this nonimmigrant petition seeking to extend the beneficiary's employment as a 
nonimmigrant intracompany transferee pursuant to section IOI(a)(IS)(L) of the Immigration and Nationality 
Act (the Act), 8 U.S.C. § I 10 I (a)(lS)(L). The petitioner, a California corporation, states that it operates a real 
estate investment company. It claims to be a subsidiary of Shindongah Construction Co., Ltd., located in 
South Korea, and claims to have one employee and gross annual income of $64,710. The beneficiary was 
previously granted L-IA classification for a period of one year, from December 30,2007 until December 29, 
2008, to open a new office in the United States, and the petitioner now seeks to extend his status so that he 
may continue to serve as the U.S. company's president for three additional years. 
The director denied the petition based on two independent and alternative grounds, concluding that the 
petitioner failed to establish: (I) that the beneficiary will be employed in the United States in a primarily 
managerial or executive capacity; and (2) that the U.S. company has been doing business for the previous year 
pursuant to 8 C.F.R. § 214.2(1)(l4)(ii)(B). 
The petitioner subsequently filed an appeal. The director declined to treat the appeal as a motion and 
forwarded the appeal to the AAO for review. On appeal, counsel asserts that the beneficiary clearly serves in 
a "managerial/executive capacity," and notes that the size of the company is irrelevant given the nature of the 
real estate investment business. Counsel emphasizes that, while the petitioner's initial residential investment 
project failed to materialize, the beneficiary has been pursuing a commercial investment project, with 
decision-making authority to enter the contract and determine all necessary personnel, resources and timeline 
for the project once it is approved. Counsel submits a brief and additional evidence in support of the appeal. 
I. The Law 
To establish eligibility for the L-I nonimmigrant visa classification, the petitioner must meet the criteria 
outlined in section 10 l(a)(lS)(L) of the Act. Specifically, a qualifying organization must have employed the 
beneficiary in a qualifying 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. 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. 
The regulation at 8 C.F.R. § 214.2(1)(3) states that an individual petition filed on Form 1-129 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 (I)(l)(ii)(G) of this section. 
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(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 qualitying 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 himlher 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. 
The regulation at 8 C.F.R. § 214.2(l)(14)(ii) also provides that a visa petition, which involved the opening of a 
new office, may be extended by filing a new Form 1-129, accompanied by the following: 
(A) Evidence that the United States and foreign entities are still qualitying organizations 
as defined in paragraph (l)(l)(ii)(G) of this section; 
(8) Evidence that the United States entity has been doing business as defined 10 
paragraph (l)(l)(ii)(H) of this section for the previous year; 
(C) A statement of the duties performed by the beneficiary for the previous year and the 
duties the beneficiary will perform under the extended petition; 
(D) A statement describing the staffing of the new operation, including the number of 
employees and types of positions held accompanied by evidence of wages paid to 
employees when the beneficiary will be employed in a managerial or executive 
capacity; and 
(E) Evidence of the financial status of the United States operation. 
Section 101(a)(44)(A) of the Act, 8 U.S.c. § IIOl(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 
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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. 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)(B) of the Act, 8 U.s.C. § 1101(a)(44)(B), defines the term "executive capacity" as an 
assignment within an organization in which the employee primarily: 
(i) directs the management of the organization or a major component or function of the 
organization; 
(ii) establishes the goals and policies of the organization, component, or function; 
(iii) exercises wide latitude in discretionary decision-making; and 
(iv) receives only general supervision or direction from higher-level executives, the board 
of directors, or stockholders of the organization. 
II. The Issues on Appeal 
A. Employment in a Managerial or Executive Capacity in the United States 
The first issue addressed by the director is whether the petitioner established that the beneficiary will be 
employed in the United States in a primarily managerial or executive capacity. 
The petitioner filed the Form 1-129, Petition for a Nonimmigrant Worker, on December 16, 2008. The 
petitioner indicated on the Form 1-129 that it is operating a real estate investment business with one employee 
and gross annual revenues of $64,71 O. 
In a letter dated December 8, 2008, the petitioner indicated that the beneficiary'S role as president of the U.S. 
company has been to establish and develop the enterprise. The petitioner noted that the beneficiary'S L-l A 
visa was issued in April 2008 and that he had been in the United States for "about six months" during which 
time he has "made review and put effort into investment project." 
The petitioner further described the status of the U.S. company and the beneficiary'S current role as follows: 
[The beneficiary 1 is in charge of [the petitioner's 1 projected business plan to build new 
residential condominiums and commercial shopping center in Southern California area. The 
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first project was focused on building 70 units of condominiums with commercial shopping 
center on the level I. However due to econom ic downturn and downturn in real estate 
market, the project did not pass feasibility and attached hereto is the escrow documentation 
which sought consideration of the documented project. 
However, under the direction of [the beneficiary], [the petitioner] is currently reviewing for 
investment the Currently, [the 
beneficiary] has requested copperation [sic] from parent company for legal requirements for 
construction and construction management as well as detailing the contract specifications as 
well as revenue and tax considerations. [The beneficiary] has forwarded the Garden Grove 
City information as well as Brookhurst Traingle [sic] Project information and is in constant 
correspondence with parent company to cooperatively review the project underhand and 
generating master business plan to approach the real estate investment project. Upon 
approval from the board for ratification into participating into the Brookhurst Project, [the 
beneficiary] will direct his management effort to recruit necessary personnel and enter into 
major contracts to carry out the detailed investment and construction projects and follow 
through to completion of construction as well as sales of construction units. 
The petitioner indicated that the investment project "has been and will be a challenging task and many tasks 
need to be sorted out." The petitioner stated that the beneficiary is "in charge ofthe daily operation as well as 
exercising executive control over the subsidiary corporation." The petitioner further indicated that the 
beneficiary will be responsible for negotiating and entering into contracts in the United States, directing and 
training new U.S. employees expected to be hired within the year, and will hold "wide discretion in the 
operation ofthe office being answerable to the Board of Directors of the Korean Parent Company." 
The petitioner provided a list of the beneficiary' proposed duties with the approximate percentage of time he 
is expected to devote to each area of responsibility. These included: 
Policy Setting (30%) - Provide strategic contract and target policies to managerial staff and 
employees for meeting scheduled construction projects; conduct routine 
daily/weekly/monthly/quarterly meetings with headquarter office to meet target goals. 
Administration (30%) - Oversee managerial staff and coordinate progress of contracts and 
allocation of project teams necessary for underlining projects. HirelFire/Train Managerial 
staffs for efficiency and quality. Provide guidance for projects and revenue generation. 
Administer all U.S. based investment and development activities. 
Development & Expansion (20%) - Develop plans for company expansion by allocating cost 
effective measure in implementing project allocation as making a decision of targeted 
development area as well as approving architecture layout and providing the parent company 
of cost and profit basis of underlining projects. Meet potential clients/vendors for major 
contract/license. Survey potential areas for expansion and development. 
Page 6 
Research (10%) - Research current trends in commercial and residential development as well 
as construction industry. Keep informed and update on current regulation/policy. 
Direct and Organize (10%) - Direct activities of staff/employeeslcontractors/supply chains. 
Organize system of project teams. Make critical decision for improvements and expanding 
company's planning in depth of future commodities and development projects for company. 
Receive statistical reports from various sectors of the company/headquarter office to 
determine project feasibility as well as allocating outside resources to develop investigative 
projection costs and returns. Allocate human resource/project resource for quality and 
efficiency ... 
The petitioner's supporting evidence included a copy of the company's original business plan, which discusses 
the company's intent to invest money to build 70 units of new residential condominiums with a shopping 
center in Southern California. Based on the business plan, the petitioner initially anticipated that it would 
receive a permit for construction in October 2008 and finish construction by October 2009. 
The petitioner submitted copies of its income statement and balance sheet as of September 30, 2008. The 
financial documents show that the petitioner has assets of nearly $2.5 million, had no sales, and reported total 
operating expenses of $11 0,000 including $17,230 in salaries and approximately $20,000 in professional fees. 
The petitioner also provided a copy of its IRS Form 1120, U.S. Corporation Income Tax Return, for the fiscal 
year ended on February 28, 2008. The 2007 tax return reflected interest income of $64,710 and minimal 
operating expenses, but no sales, receipts, salaries or rent. The petitioner's IRS Form 941, Employer's 
Quarterly Federal Tax Return, and California Form DE-6, Quarterly Wage Report, reflect that the beneficiary 
is the only employee on the petitioner's payroll. 
Finally, the petitioner submitted evidence related to the above-referenced 
property development project, including a Commercial Property Purchase Agreement 
a report sent by the beneficiary to the parent company in September 2008 requesting a business feasibility 
report in relation to the U.S. company's involvement in the Brookhurst Triangle project, and a Master Plan for 
development of the project created by 
The director issued a request for additional evidence ("RFE") on December 29, 2008. The director instructed 
the petitioner to submit, inter alia, the following: (I) a more detailed description of the beneficiary's duties, 
including the percentage of time spent on each specific task; (2) a copy of the U.S. company's organizational 
chart showing the names and job duties of all employees supervised by the beneficiary; (3) for all U.S. 
employees, a brief description of job duties, educational level, annual salaries wages, source of remuneration 
and immigration status; and (4) if the beneficiary is employed in an executive capacity, a list of the specific 
goals and policies he has established during the last six months, and a specific day-to-day description of his 
duties during the same period. 
In a response dated January 5, 2009, the petitioner explained that although the U.S. company's original 
residential condominium project was ultimately not feasible, the beneficiary "has found the Brookhurst 
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Triangle Project and is currently in the reVlew process m legal matters, participatory ratio, returns on 
investment and projected schedules and costs." The petitioner noted that it "will take considerable time until 
the final contract ensures and the project beginning will begin after such contract and escrow is put forth and 
actual construction may be further years down the line." 
The petitioner emphasized that the beneficiary is the "sole collaborator between parent company and 
subsidiary company to pursue this project and will be the top executive for running a hierarchical organization 
once project is ratified by the board." The petitioner also noted that due to a "circumstantial delay" 
surrounding the approval of the beneficiary's L-l visa, he was unable to enter the United States until June 
2008. The petitioner indicated that the U.S. company has two independent contractors who work as support 
staff to the beneficiary, who "directs and controls their daily operation and in the process of recruiting 
additional full time support personnel." The petitioner noted that, once a contract is ratified, a "hierarchical 
organization with tier level employee, supervisor, managers and necessary departments will be organized 
under the direction of[the beneficiary]." 
The petitioner's response to the RFE included a letter from __ president and chief executive officer 
of the petitioner's parent company. _ provided a description of the beneficiary's present duties, as 
follows: 
Collaboration - Communicate with parent company's necessary department including legal 
and finance department to provide information on projected details. (30% oftime) 
Research and Information Gathering - Keep the board informed of current economic 
condition in targeted construction project area as well as provide necessary vital information, 
data, demographics and feasibility report (20% oftime) 
Planning and Execntion - Plan and compose detailed guidelines for schedule, parent company 
support function, contracting vendors, gathering resources for successful venture. 
proposal, negotiations, contract on behalf of parent company and stakeholders. 
execute all future recruitments. (20% of the time). 
Execute 
Plan and 
Management - Keep US company viable for all regulatory requirement and manage funds into 
accountable financials distinguishing foreign and localized income/expense. Contract specialist 
required to carry on procedural projected requirements including accounting, contracts, provide 
necessary reports to appropriate agency, departments, parent company's board of directors. 
(30% of the time). 
_letter included a separate set of duties which he indicates will apply "once project is ratified and 
contract for major construction has begun and the plan is set in motion with organization and personnel 
defined." This description is the same as the job description included in the petitioner's letter dated December 
8, 2008. _confirmed that the beneficiary's duties still lie "in the development and set up phase as the 
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multi-million dollar project has not been completely ratified due to the redirection of the company's project 
from residential to commercial target centers." 
The petitioner submitted an organizational chart for the U.S. business which identifies the beneficiary as 
"president" and "strategy." The chart indicates . a marketing employee who reports to the 
beneficiary. Other evidence in the record indicates that is the president of Vision Investment Realty 
Co., the petitioner's landlord. The petitioner indicates that_ is also the company secretary for the U.S. 
company. 
The director denied the petition on February 9, 2009, concluding that the petitioner failed to establish that the 
beneficiary would be employed in a primarily managerial or executive capacity under the extended petition. 
In denying the petition, the director observed that the beneficiary appears to be the U.S. company's only 
employee, and noted that, as such, it appears that he has been performing many aspects of the day-to-day 
operations of the business. The director noted that the beneficiary's claimed duties are too broad and 
nonspecific to convey any understanding of what he actually does, and that he would not be deemed to be a 
manager or executive based on his job title alone. 
On appeal, counsel asserts that the beneficiary "does serve in the function of 'executive and managerial 
capacity', whereas he manages the organization in U.S. as well as the parent company's business function in 
U.S. namely contractring [sic] major land/commercial/residential projects." Counsel emphasizes that the 
beneficiary "has the full authority to enter into contracts on behalf of the organization, set new guideline, 
recruit and terminate personnel." In addition, counsel states that the beneficiary's "essential function at this 
time is administering the liaison relationship due to international timeline in pursuing the project with direct 
vendors and with stakeholders in S. Korea and U.S. and major recruitment effort and major investment from 
parent company through subsidiary company in U.S. once contract is ensued." 
Counsel further asserts that the beneficiary's current duties "relate to day to day management of the 
contracting processes which is deemed by oversight with support from professional staffs from parent 
company as well as collaborating with accounting and legal professionals in the U.S." Counsel stresses that 
the beneficiary's extension of status "does not solely rest upon staffing levels." Counsel notes that the 
beneficiary "is not involved in mere supervisor duties of encompassing normal transaction but rather serves 
an executive capacity in terms of operation and setting goals and reviewing policies of the company." 
In support of the appeal, the petitioner submits letters from U.S. Representative 
-of Garden Grove, California, and the Garden Grove Chamber of Commerce requesting 
The letters confirm that the petitioning organization has shown interest in the 
has been working with the city's Chamber of Commerce and 
Economic Development Department. 
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Upon review, and for the reasons stated herein, the petitioner has not established that the beneficiary will be 
employed in a primarily managerial or executive capacity under the extended petition. 
As a preliminary matter, we acknowledge the petitioner's claims that it was unable to proceed as planned in 
establishing the U.S. company based on poor economic conditions that prohibited pursuit of the company's 
intended residential construction project and "circumstantial" reasons that delayed the issuance of the 
beneficiary's visa petition. However, we emphasize that the L-IA nonimmigrant visa is not an entrepreneurial 
visa classification that would allow an alien a prolonged stay in the United States in a non-managerial or non­
executive capacity to start up a new business. The regulations allow for a one-year period for a U.S. 
petitioner to commence doing business and develop to the point that it will support a managerial or executive 
position. By allowing mUltiple petitions under the more lenient standard, USCIS would in effect allow 
foreign entities to create under-funded, under-staffed or even inactive companies in the United States, with the 
expectation that they could receive multiple extensions of their L-I status without primarily engaging in 
managerial or executive duties. The only provision that allows for the extension of a "new office" visa 
petition requires the petitioner to demonstrate that it is staffed and has been "doing business" in a regular, 
systematic, and continuous manner for the previous year. 8 C.F.R. § 214.2(1)(14)(ii). The petitioner concedes 
the beneficiary remains the company's own employee and indicates that his duties still lie "in the development 
and set up phase." 
The one-year "new office" provision is an accommodation for newly established enterprises, provided for by 
USCIS regulation, that allows for a more lenient treatment of managers or executives that are entering the 
United States to open a new office. When a new business is first established and commences operations, the 
regulations recognize that a designated manager or executive responsible for setting up operations will be 
engaged in a variety of low-level activities not normally performed by employees at the executive or 
managerial level and that often the full range of managerial responsibility cannot be performed in that first 
year. In an accommodation that is more lenient than the strict language of the statute, the "new office" 
regulations allow a newly established petitioner one year to develop to a point that it can support the 
employment of an alien in a primarily managerial or executive position. 
In creating the "new office" accommodation, the legacy Immigration and Naturalization Service (INS) 
recognized that the proposed definitions of manager and executive created an "anomaly" with respect to the 
opening of new offices in the United States since "foreign companies will be unable to transfer key personnel 
to start-up operations if the transferees cannot qualify under the managerial or executive definition." 52 Fed. 
Reg. 5738, 5740 (Feb. 26, 1987). The INS recognized that "small investors frequently find it necessary to 
become involved in operational activities" during a company's startup and that "business entities just starting 
up seldom have a large staff." Id. Despite the fact that an alien engaged in the start up of a new office may 
not be "primarily" employed in a managerial or executive capacity, as then required by regulation and later by 
statute, the INS amended the final regulations to allow for L classification of persons who are coming to the 
United States to open a new office as long as "it can be expected ... that the new office will, within one year, 
support a managerial or executive position." Id. 
Accordingly, if a petitioner indicates that a beneficiary is coming to the United States to open a "new office," 
it must show that it is prepared to commence doing business immediately upon approval so that it will support 
a manager or executive within the one-year timeframe. See generally, 8 C.F.R. § 2l4.2(1)(3)(v). At the time 
of filing the petition to open a "new office," a petitioner must affirmatively demonstrate that it has acquired 
Page 10 
sufficient physical premises to house the new office and that it will support the beneficiary in a managerial or 
executive position within one year of approval. Specifically, the petitioner must describe the nature of its 
business, its proposed organizational structure and financial goals, and submit evidence to show that it has the 
financial ability to remunerate the beneficiary and commence doing business in the United States. Id. After 
one year, USCIS will extend the validity of the new office petition only if the entity demonstrates that it has 
been doing business in a regular, systematic, and continuous manner "for the previous year." 8 C.F.R. § 
214.2(1)(14)(ii)(8). 
Upon review of the current petition, it is apparent that the petitioner was not prepared to commence doing 
business upon approval of its initial new office petition, and now claims that one year is simply not enough 
time to implement its start-up plans. This failure on the petitioner's part is not a result of some impossibility 
created by the law or regulations. The one-year period was not included in the regulations as a hindrance to 
new offices. On the contrary, the new office provisions were added to the regulations in 1987 specifically to 
recognize that it would be impossible for some new offices to immediately employ someone in an executive 
or managerial capacity as defined in the regulations. See 52 Fed. Reg. at 5739-5740. At the same time, the 
legacy INS stated that it "must concern itself with abuse or the potential for abuse of any visa category" and 
further noted that "one year is sufficient for any legitimate business to reach the 'doing business' standard." 
Id. There is no provision in USCIS regulations that allows a petitioning corporation additional petitions 
under the "new office" regulatory accommodation for managers and executives. If the business is not 
sufficiently operational after one year, the petitioner is ineligible by regulation for an extension of the prior 
approved L-l petition. 
When examining the executive or managerial capacity of the beneficiary, the AAO will look first to the 
petitioner's description 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 either an executive or a managerial capacity. Id. 
The definitions of executive and managerial capacity each have two parts. First, the petitioner must show that 
the beneficiary performs the high-level responsibilities that are specified in the definitions. Second, the 
petitioner must show that the beneficiary primarily performs these specified responsibilities and does not 
spend a majority of his or her time on day-to-day functions. Champion World, Inc. v. INS, 940 F.2d 1533 
(Table), 1991 WL 144470 (9th Cir. July 30,1991). 
The petitioner's description of the beneficiary's duties fails to establish that the beneficiary would be engaged 
in primarily managerial or executive duties under the extended petition. While several of the duties the 
beneficiary would perform may require the beneficiary to exercise an appropriate level of authority, the 
petitioner has not submitted a sufficient breakdown of how the beneficiary will actually allocate his time 
during the petitioner's on-going "initial set-up stage." The petitioner indicates that the beneficiary devotes 30 
percent of his time to "collaboration," which includes communicating with the parent company's legal and 
finance departments with respect to project feasibility. While these tasks are undoubtedly necessary in order 
to eventually establish the U.S. operations, the petitioner has not indicated how such duties qualifY as either 
managerial or executive in nature. 
Similarly, the petitioner indicates that the beneficiary, as of the date of filing, spends approximately 20 
percent of his time on research and information gathering needed to provide the foreign entity with "vital 
Page II 
information, data, demographics and feasibility reports." The petitioner has not established that anyone is 
assisting the beneficiary with these economic and market research tasks, which also do not fall under the 
statutory definitions of managerial or executive capacity. Although the petitioner's organizational chart lists a 
marketing employee who reports to the beneficiary, the petitioner has failed to provide evidence of any 
payments to this individual to establish that he was working for the company as a contractor or in any other 
capacity as of the date of filing the petition, nor did it provide the marketing employee's job description. 
Going on record without supporting documentary evidence is not sufficient for purposes of meeting the 
burden of proof in these proceedings. Matter of Sojfiei, 22 I&N Dec. 158, 165 (Comm. 1998) (citing Matter 
of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm. 1972)). 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 X 14). 
The petitioner indicated that the beneficiary allocates an additional 20 percent of his time to "planning and 
execution," and 30 percent of his time to "management" but failed to establish that a company that remains in 
the "set-up" phase requires the beneficiary to perform primarily managerial or executive duties related to 
either of these broad responsibilities. Reciting the beneficiary's vague job responsibilities or broadly-cast 
business objectives is not sufficient; the regulations require a detailed description of the beneficiary's daily job 
duties. The petitioner has failed to provide any detail or explanation of the beneficiary's activities in the 
course of his daily routine. The actual duties themselves will reveal the true nature of the employment. Fedin 
Bros. Co., Ltd. v. Sava, 724 F. Supp. 1103, 1108 (ED.N.Y. 1989), affd, 905 F.2d 41 (2d. Cir. 1990). 
All other duties described in the record pertain to the beneficiary's "proffered duties once [the 1 project is 
ratified and contract for major construction has begun." The AAO must emphasize that the critical facts to be 
examined are those that were in existence at the actual time of filing the petition. It is a long-established rule 
in visa petition proceedings that a petitioner must establish eligibility as of the time of filing. A visa petition 
may not be approved based on speculation of future eligibility or after the petitioner or beneficiary becomes 
eligible under a new set of facts. See Matter of Michelin Tire Corp., 17 I&N Dec. 248 (Reg. Comm. 1978); 
Matter of Katigbak, 14 I&N Dec. 45, 49 (Comm. 1971); Matter of Izummi, 22 I&N Dec. 169, 176 (Assoc. 
Comm. 1998). 
As stated in the statute, the beneficiary must be primarily perform ing duties that are managerial or executive. 
See sections 101(a)(44)(A) and (B) of the Act. Furthermore, the petitioner bears the burden of documenting 
what portion of the beneficiary's duties will be managerial or executive and what proportion will be non­
managerial or non-executive. Republic of Transkei v. INS, 923 F.2d 175, 177 (D.C. Cir. 1991). Given the 
lack of any meaningful percentages of time allocated to specific duties, the record does not demonstrate that 
the beneficiary will function primarily as a manager or executive. 
Furthermore, while making a final decision regarding which investment projects to pursue may require an 
exercise of managerial or executive discretion, the beneficiary, as the sole employee, would also be required 
to perform all non-qualifying administrative and operational duties associated with the start-up of the 
company. The fact that the beneficiary manages or directs a business as its "president" does not necessarily 
establish eligibility for classification as an intracompany transferee in a managerial or executive capacity 
within the meaning of sections 101(a)(15)(L) of the Act. See 52 Fed. Reg. 5738, 5739-40 (Feb. 26,1987) 
(noting that section 101(a)(15)(L) of the Act does not include any and every type of "manager" or 
"executive"). While the AAO does not doubt that the beneficiary exercises discretion over the petitioning 
company as the president and sole employee, the petitioner has failed to demonstrate that his actual day-to-
Page 12 
day duties as of the date of filing the petition would be primarily managerial or executive. Again, the actual 
duties themselves reveal the true nature of the employment. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. at 
1108 (E.D.N.Y. 1989), ajfd, 905 F.2d 41 (2d. Cir. 1990). 
Beyond the required description of the job duties, U.S. Citizenship and Immigration Services (USCIS) 
reviews the totality of the record when exam ining the claimed managerial or executive capacity of a 
beneficiary, including the petitioner's organizational structure, the duties of the beneficiary's subordinate 
employees, the presence of other employees to relieve the beneficiary from performing operational duties, the 
nature of the petitioner's business, and any other factors that will contribute to a complete understanding of a 
beneficiary's actual duties and role in a business. 
The petitioner's initial business plan indicates that the company intended to obtain all required licenses and at 
least begin construction of its proposed residential condominium building within one year of commencing 
operations in the United States. Although the petitioner's business plan does not include a personnel plan, it is 
reasonable to assume that the company intended to hire staff prior to undertaking the construction project and 
prior to the end of the beneficiary'S initial year in L-IA status. As of the date of filing the petition, the 
petitioner has abandoned its original project, is pursuing a new project, and concedes that, even if the project 
is ultimately approved, the commencement of construction activities may still be years away. The petitioner's 
confirmed staff at the end of the first year of operations includes the beneficiary only. 
The statutory definition of "managerial capacity" allows for both "personnel managers" and "function 
managers." See section 101 (a)(44)(A)(i) and (ii) of the Act, 8 U.S.C. § II01(a)(44)(A)(i) and (ii). Personnel 
managers are required to primarily supervise and control the work of other supervisory, professional, or 
managerial employees. Contrary to the common understanding of the word "manager," 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(1)(1)(ii)(B)(2). If a beneficiary directly supervises other 
employees, the beneficiary must also have the authority to hire and fire those employees, or recommend those 
actions, and take other personnel actions. 8 C.F.R. § 214.2(1)(I)(ii)(B)(3). As noted above, the petitioner has 
not established that the beneficiary directly supervises any employees in his role as president of the U.S. 
entity. 
The petitioner has not established, in the alternative, that the beneficiary is employed primarily as a "function 
manager." The term "function manager" applies 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) of the Act, 8 U.S.C. § llOl(a)(44)(A)(ii). The term 
"essential function" is not defined by statute or regulation. If a petitioner claims that the beneficiary is 
managing an essential function, the petitioner must furnish a detailed description of 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 the beneficiary'S daily duties attributed to managing the essential 
function. See 8 C.F.R. § 214.2(1)(3)(ii). In addition, the petitioner's description of the beneficiary'S daily 
duties must demonstrate that the beneficiary manages the function rather than performs the duties related to 
the function. Here, as discussed above, the petitioner has not established that the beneficiary'S duties are 
primarily managerial. The beneficiary, as of the date the petition was filed, appears to act primarily as a 
Page 13 
liaison between the foreign entity and potential U.S. business partners with responsibility for investigating 
and reporting real estate investment opportunities to the overseas entity. 
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 101(a)(44)(B) of the Act, 8 U.S.C. § 1101(a)(44)(B). 
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 level of 
employees for the beneficiary to direct and 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. The 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. The beneficiary in this matter, 
although he holds the executive job title of "president" has not been shown to be primarily engaged in 
establishing goals and policies for the U.S. company or overseeing its management given the company's 
preliminary stage of development. 
The AAO notes that a company's size alone, without taking into account the reasonable needs of the 
organization, may not be the determining factor in denying a visa to a multinational manager or executive. 
See § 101(a)(44)(C) of the Act, 8 U.S.C. § I 101 (a)(44)(C). In reviewing the relevance of the number of 
employees a petitioner has, however, federal courts have generally agreed that USCIS "may properly consider 
an organization's small size as one factor in assessing whether its operations are substantial enough to support 
a manager." Family Inc. v. U.S. Citizenship and Immigration Services 469 F. 3d 1313, 1316 (9th Cir. 2006) 
(citing with approval Republic of Transkei v. INS, 923 F 2d. 175, 178 (D.C. Cir. 1991); Fedin Bros. Co. v. 
Sava, 905 F.2d 41, 42 (2d Cir. 1990)(per curiam); Q Data Consulting. Inc. v. INS, 293 F. Supp. 2d 25, 29 
(D.D.C. 2003». It is appropriate for USCIS to consider the size of the petitioning company in conjunction 
with other relevant factors, such as a company's small personnel size, 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. See. e.g. Systronics Corp. v. INS, 153 F. Supp. 2d 7, IS 
(D.D.C. 2001). 
Furthermore, in the present matter, the regulations provide strict evidentiary requirements for the extension of 
a "new office" petition and require USCIS to examine the organizational structure and staffing levels of the 
petitioner. See 8 C.F.R. § 214.2(l)(l4)(ii)(D). The regulation at 8 C.F.R. § 214.2(I)(3)(v)(C) allows the "new 
office" operation one year within the date of approval of the petition to support an executive or managerial 
position. There is no provision in USCIS regulations that allows for an extension of this one-year period. If 
the business is not sufficiently operational after one year, the petitioner is ineligible by regulation for an 
extension. In the instant matter, the petitioner has not reached the point that it can employ the beneficiary in 
a primarily managerial or executive position. 
At the time of filing the petition, the petitioner was a nearly two-year-old company established for the purpose 
of real estate investment in the United States. The beneficiary, while charged with the ongoing research and 
negotiations related to the company's first investment project as the parent company's representative in the 
United States, is also the sole employee working for the U.S. company. The U.S. company appears to be no 
Page 14 
closer to commencing operations in the United States than it was when it filed the new office petition, and in 
fact no longer has a projected start date for its proposed construction project. The petitioner has not 
established that it had a reasonable need for the beneficiary to perform primarily managerial or executive 
tasks as of the date of filing the petition. 
The petitioner indicates that it plans to make a sizeable investment in a commercial real estate project in the 
future and will charge the beneficiary will recruiting, hiring and managing subordinate managers and 
employees at that time. However, as noted above, the petitioner must establish eligibility at the time of filing 
the nonimmigrant visa petition. A visa petition may not be approved based on speculation of future eligibility 
or after the petitioner or beneficiary becomes eligible under a new set of facts. See Matter af Michelin Tire 
Carp., 17 I&N Dec. 248 (Reg. Comm'r. 1978); Matter af Katigbak, 14 I&N Dec. 45, 49 (Comm'r. 1971). The 
AAO concurs with the director's determination that the petitioner has not grown to the point where it requires 
the beneficiary to engage primarily in managerial or executive duties. Accordingly, the appeal will be 
dismissed. 
B. Doing Business 
The second issue the director addressed is whether the petitioner established that the U.S. company is doing 
business as defined at 8 C.F.R. § 214.2(1)(2)(H). "Doing business" means the regular, systematic, and 
continuous provision of goods andlor 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. Id. 
As the instant petition is a request for an extension of a new office petition pursuant to 8 C.F.R. 
214.2(1)(14 )(ii), additional considerations must be made in determining whether the petitioner is "doing 
business." If a petition indicates that a beneficiary is coming to the United States to open a "new office," it 
must show that it is ready to commence doing business immediately upon approval. At the time of filing 
the petition to open a "new office," a petitioner must affirmatively demonstrate that it has acquired 
sufficient physical premises to commence business, that it has the financial ability to commence doing 
business in the United States, and that it will support the beneficiary in a managerial or executive position 
within one year of approval. See generally, 8 C.F.R. § 214.2(1)(3)(v). At the end of a one-year period, when 
the petitioner seeks an extension of the "new office" petition, the regulation at 8 C.F.R. § 214.2(1)(l4)(ii)(B) 
requires the petitioner to demonstrate that it has been doing business "for the previous year" through the 
regular, systematic, and continuous provision of goods or services. If the business is not sufficiently 
operational after one year, the petitioner is ineligible by regulation for an extension. 
As discussed above, it is apparent that the petitioner was not prepared to do business upon approval of its 
initial new office petition, and in fact has never commenced the proposed real estate investment project 
which formed the basis of the initial new office petition. Moreover, the record does not support a finding 
that the petitioner has been doing business for the previous year. The petitioner's only income to date is 
interest income based on its monetary assets, and the petitioner's only apparent activities at the end of the 
first year of operations consist of continued pursuit of a suitable real estate investment project, an action 
that should have been completed prior to filing the new office petition. For these reasons, the AAO concurs 
with the director's determination. 
Page 15 
Counsel contends on appeal that the petition was denied based solely on the petitioner's failure to establish 
that the beneficiary would be employed in a primarily managerial or executive capacity. Therefore, the 
petitioner has not contested the director's determination that the petitioner has not been doing business, and 
the appeal will be dismissed. 
III. 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 entirely with the petitioner. Section 291 of the Act, 8 U.S.c. § 1361. 
Here, that burden has not been met. 
ORDER: The appeal is dismissed.