dismissed L-1A Case: Real Estate Investment

MATTER OF G-D- CORP. 
APPEAL OF VERMONT SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: AUG. 14, 2018 
PETITION: FORM 1-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a real estate investment and construction management company, seeks to temporarily 
employ the Beneficiary as its president under the L-1 A nonimmigrru:it classification for 
intracompany transferees. Immigration and Nationality Act (the Act) section 101(a)(l5)(L), 
8 U.S.C. § 110l(a)(l5)(L). The L-IA classification allows a corporation or other legal entity 
(including its affiliate or subsidiary) to transfer a qualifying foreign employee to the United States to 
work temporarily in a managerial or executive capacity. 
The Director of the Vermont Service Center revoked the approval of the instant petition concluding 
that the Petitioner did not establish that the Beneficiary was employed in an executive capacity. 
On appeal, the Petitioner asserts, contrary to the Director's conclusion, that it submitted a detailed 
description of the Beneficiary's duties and demonstrated that he oversaw professional subordinates 
who relieved him from primarily performing non-qualifying duties. 
Upon de novo review, we will dismiss the appeal. 
I. LEGAL FRAMEWORK 
To establish eligibility for the L-1 A nonimmigrant visa classification, a qualifying organization must 
have employed the beneficiary "in a capacity that is managerial, executive, or involves specialized 
knowledge," for one continuous year within three years preceding the beneficiary's application for 
admission into the United States. Section 101(a)(l5)(L) of the Act. In addition, the beneficiary 
must seek to enter the United States temporarily to continue rendering his or her services to the same 
employer or a subsidiary or affiliate thereof in a managerial or executive capacity. Id. The 
petitioner must also establish that the beneficiary's prior education, training, and employment 
qualify him or her to perform the intended services in the United States. 8 C.F.R. § 214.2(1)(3). 
Under U.S. Citizenship and Immigration Services regulations, the approval of an L-IA petition may 
be revoked on notice under six specific circumstances. 8 C.F.R. § 214.2(1)(9)(iii)(A). To properly 
revoke the approval of a petition, a director must issue a notice of intent to revoke that contains a 
Maller (!/G-p-Corp. 
detailed statement of the grounds for the revocation and the time period allowed for 
rebuttal. 8 C.F .R. § 214.2(])(9)(iii)(B). 1 
II. U.S. EMPLOYMENT IN AN EXECUTIVE CAPACITY 
The sole issue to be addressed is whether the Petitioner has established that the Beneficiary was 
employed in an executive capacity as of the date of the Director's Notice of Intent to Revoke 
(NOIR). The Petitioner does not claim that the Beneficiary was employed in a managerial 
capacity. Therefore, we restrict our analysis to whether the Beneficiary was employed in an 
executive capacity. 
The statute defines an "executive capacity" as an assignment within an organization in which the 
employee primarily directs the management of the organization or a major component or function of 
the organization; establishes the goals and policies of the organization, component, or function; 
exercises wide latitude in discretionary decision-making; and receives only general supervision or 
direction from higher-level executives, the board of directors, or stockholders of the organization. 
Section 101 (a)(44)(B) of the Act. 
When examining the executive capacity of a given beneficiary, we will review the petitioner's 
description of the job duties. The petitioner's description of the job duties must clearly describe the 
duties performed by the beneficiary and indicate whether such duties were in an executive capacity. 
See 8 C.F.R. § 214.2(1)(3)(ii). Beyond the required description of the job duties, we examine the 
company's organizational structure, the duties of a beneficiary's subordinate employees, the 
presence of other employees to relieve a beneficiary from performing operational duties, the nature 
of the business, and any other factors that will contribute to understanding a beneficiary's actual 
duties and role in the business. Accordingly, we will discuss evidence regarding the Beneficiary's 
job duties along with evidence of the nature of the Petitioner's business, its staffing levels, and its 
organizational structure. 
A. Duties 
Based on the definition of executive capacity, the Petitioner must first show that the Beneficiary was 
performing certain high-level responsibilities. Champion World, Inc. v. INS, 940 F.2d 1533 (9th Cir. 
I 991) (unpublished table decision). Second, the Petitioner must prove that the Beneficiary was 
primarily engaged in executive duties, as opposed to ordinary operational activities alongside the 
Petitioner's other employees. See Family Inc. v. USCJS, 469 F .3d 1313, 1316 (9th Cir. 2006); 
Champion World, 940 F.2d 1533. 
1 An L-1 A nonimmigrant intracompany transferee petition filed on behalf of the Beneficiary was approved on April 7, 
2015, for the period March 17, 20 I 5, to March 16, 2017. The Director later revoked this approved petition on November 
29, 2017, following the issuance of a notice of intent to revoke (NOIR) on September 14, 2015. The Director concluded 
that the Beneficiary was no longer eligible for the nonimmigrant classification. See 8 C.F.R § 214.2{1)(9)(iii)(2). 
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Matter ofG-D- Corp. 
The Petitioner stated that its "primary business" was to "conduct real estate investment, 
development, and management." In support of the petition, the Petitioner indicated that the 
Beneficiary would be tasked with "monitoring and ensuring the financial and logistical viability" of 
the company, establishing its "financial objectives, policies and marketing strategy," securing 
'"funding for investment projects," exercising control over capital funds, and reviewing and 
approving all investment proposals. The Petitioner explained that the Beneficiary would direct 
"'ambitious investment expansion plans ... representing a capital investment in [the United States] of 
over $5,000,000" by the foreign employer. It further stated that it had acquired a 50% interest in G­
D-D- LLC "a company engaged in the investment and construction of residential real estate." The 
Petitioner indicated that G-D-D- LLC had been involved in the construction of two homes. It also 
explained that the Beneficiary had been "especially effective in identifying lucrative investment 
opportunities." 
The Director later conducted a site visit at the Petitioner's office location following the approval of 
the petition. Following the site visit, the Director issued a NOIR stating that an asserted employee of 
the Petitioner provided details of the Beneficiary's duties during the site visit. The Director stated 
that the employee of the Petitioner explained that the Beneficiary's responsibilities included "having 
final approval or' the selection of real estate investment projects, bids for construction projects, and 
hiring and firing of employees." The Director stated in the NOIR that based on the information 
collected at the site visit it did not appear that the Beneficiary was acting primarily in a managerial 
or executive capacity. As such, the Director requested that the Petitioner provide a description of the 
Beneficiary's typical managerial or executive duties and responsibilities along with percentages of 
time he devoted to them. 
In response, the Petitioner provided additional details regarding its operations since the approval of 
the petition. The Petitioner stated that G-D-D- LLC, its affiliated company, had purchased three 
residential properties and further sold one of these properties, listed one for sale, an~ planned 
renovations and improvements to another. The Petitioner also indicated that it had submitted an 
offer to purchase another residential property and entered into contracts with contractors to perform 
"project development and supervision" related to three other residential properties. 
In addition, the Petitioner stated that the Beneficiary was responsible for "leading and directing the 
business development and operations" of the company. The Petitioner indicated that the Beneficiary 
spent his time on some of the following tasks: 
• 25-30% of the time the Beneficiary was tasked with: 
o Directing business activities and management at the highest level and setting 
overall goals, 
o Taking control of the Petitioner's business planning and operations, 
o Establishing policies including investment and financial policies, making 
strategic decisions, and directing business planning and financial planning, 
o Establishing and implementing short-term and long-term goals, objectives, 
and operating procedures, 
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- Matter ofG-D- Corp. 
o Providing leadership on capital resource requirements and implementations. 
• 20-25% the Beneficiary spent his time on: 
o Reviewing and analyzing current management system, human resource 
system, and organizational framework, and making -recommendations to the 
foreign employer for improving efficiency and increasing revenue, and 
o Providing leadership in achieving the Petitioner's business objectives and 
goals to be financially independent and generate revenues for the foreign 
employer. 
• 30-35% the Beneficiary was responsible for: 
o Directing and overseeing the Petitioner's core business in real estate 
investment, development and management, 
o Directing market research and sales, 
o Meeting with staff members on regular basis to discuss issues and solutions, 
o Meeting with brokers/agents, architects, and contractors to resolve ongoing 
issues, 
o Formulating new ideas to acquire and develop real properties. 
• 12-15% of the time the Beneficiary was tasked with: 
o Reviewing quarterly and yearly financial statements, and 
o Conferring with the foreign employer for continued financial support until the 
Petitioner becomes financially independent. 
• I 0-15% of the Beneficiary spent his time on: 
o Approving or rejecting potential real estate investment and development 
projects, 
o Conducting negotiations at the executive level with builders, contractors, 
architects, suppliers, etc. 
o Negotiating and executing real estate property contracts, and make final 
determination of pricing, terms, and payment methods. 
The Petitioner did not submit a sufficiently detailed duty description describing the Beneficiary's 
day-to-day executive-level duties to credibly establish that he devoted his time primarily to 
qualifying tasks. The Beneficiary's duty description includes several generic duties that could apply 
to any executive acting in any business or industry and they do not provide insight into the actual 
nature of his role. The Petitioner provided insufficient examples and supporting documentation to 
demonstrate the Beneficiary's performance of qualifying duties, such as investment or financial 
policies he established, strategic decisions he made, or objectives or operating procedures he 
implemented. The Petitioner also did not articulate or document recommendations he made to the 
foreign employer to improve efficiency or increase revenue, market research and sales he directed, 
issues or solutions he proposed to his staff, real estate proposals and development projects he 
approved or rejected, or negotiations he conducted with builders, contractors, or architects. This 
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Maller of G-D- Corp. 
lack of detail and documentation is particularly noteworthy since the Petitioner states that the 
Beneficiary acted in his role as president since March 2014, approximately nineteen months prior to 
the date of the NOIR. Specifics are clearly an important indication of whether a beneficiary's duties 
are primarily executive or managerial in nature, otherwise meeting the definitions would simply be a 
matter of reiterating the regulations. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1103, 1108 
(E.D.N.Y. 1989), aff'd, 905 F.2d 41 (2d._ Cir. 1990). 
To the extent that the Beneficiary submits details and documentation regarding the Beneficiary's 
daily duties, this evidence indicates his involvement in non-qualifying operational tasks. For 
instance, the Beneficiary's duties and the submitted evidence reflect that the Beneficiary met with 
brokers, agents, architects, and contractors to resolve issues and that he was engaged in investigating 
the purchase of residential properties. The Petitioner noted the Beneficiary's involvement with "all 
investment projects" and his effectiveness in identifying "investment opportunities," which based on 
the submitted evidence, was the acquisition of a handful of residential properties. Submitted bank 
records from August 2015, just prior to the NOIR, reflect the Beneficiary's involvement in day-to­
day operational matters, including signing checks to pay contractors, reimburse employees, and pay 
insurance. Likewise, invoices and emails from October 2015 indicate the Beneficiary's involvement 
in paying an architect. In contrast, the record includes few examples and little documentation 
reflecting the Beneficiary's delegation of these non-qualifying operational tasks to his subordinates 
as of the date of the NOIR. 
Whether a beneficiary is an executive employee turns on whether the petitioner has sustained its 
burden of proving that their duties are "primarily" executive. See section 10l(a)(44)(8) of the Act. 
Here, the Petitioner does not document what proportion of the Beneficiary's duties were executive 
functions and what proportion would be non-qualifying. The Petitioner submits evidence indicating 
the Beneficiary's involvement in operational-level tasks that do not fall directly under executive 
duties as defined in the statute, but does not quantify the time he spent on these duties. For this 
reason, we cannot determine whether the Beneficiary was primarily performing the duties of an 
executive. See JKEA US, Inc. v. US. Dept. of Justice, 48 F. Supp. 2d 22, 24 (D.D.C. 1999). 
Even though the Beneficiary held a senior position within the organization, the fact that he managed 
or directed a business does not necessarily establish eligibility for classification as an intracompany 
transferee in an executive capacity within the meaning of section 101(a)(44)(B) of the Act. By 
statute, eligibility for this classification requires that the duties of a position be "primarily" executive 
in nature. Id. The Beneficiary may have exercised discretion over the Petitioner's day-to-day 
operations and possessed the requisite level of authority with respect to discretionary decision­
making; however, the position descriptions alone are insufficient to establish that his actual duties 
were primarily executive in nature. 
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Matter of G-D- Corp. 
B. Staffing 
If staffing levels are used as a factor in determining whether an individual was acting in an executive 
capacity, we take into account the reasonable needs of the organization, in light of the overall 
purpose and stage of development of the organization. See section 10l(a)(44)(C) of the Act. 
As noted above, the Petitioner asserts that the Beneficiary qualified as an executive. The. statutory 
definition of the term "executive capacity" focuses on a person's elevated position within a complex 
organizational hierarchy, including major components or functions of the organization, and that 
person's authority to direct the organization. Section 101(a)(44)(B) of the Act. Under the statute, a 
beneficiary must have the ability to "direct the management" and "establish the goals and policies" 
of that organization. Inherent to the definition, the organization must have a su~ordinate level of 
. managerial employees for a beneficiary to direct and they must primarily focus on the broad goals 
and policies of the organization rather than the day-to-day operations of the enterprise. An 
individual will not be deemed an executive under the statute simply because they have an executive 
title or because they "direct" the enterprise as the owner or sole managerial employee. A beneficiary 
must also exercise "wide latitude in discretionary decision making" and receive only '"general 
supervision or direction from higher-level executives, the board of directors, or stockholders of the 
organization." Id. 
In response to the NOIR, the Petitioner provided an organizational chart reflecting that the 
Beneficiary supervised a vice president overseeing an administrative assistant, two real estate project 
managers, and a real estate associate/legal consultant. On appeal, the Petitioner emphasizes that the 
Beneficiary supervised professional subordinates who relieved him from primarily performing non­
qualifying operational duties. 
The regulatory definition of an executive does not provide that a beneficiary can qualify as an 
executive merely based on the supervision of professional subordinates, but based on his or her 
elevated position within a complex organizational hierarchy and a primary focus on directing the 
management and establishing the goals and policies of the organization. Therefore, the Petitioner's 
contention that the Beneficiary qualified as an executive merely based on his supervision of 
professional subordinates is not convincing. 
The organizational chart submitted in response to the NOIR reflected that the Beneficiary only had 
one asserted subordinate manager, the vice president. However, the submitted evidence does not 
indicate that the claimed vice president acted in a managerial capacity overseeing real estate brokers 
and a real estate associate/legal consultant as asserted. For instance, on appeal, the Petitioner 
provides an affidavit from the vice president stating that she worked part-time for the company from 
December 2014 to December 2015, or at the time the NOIR was issued. The vice president also 
indicated that when she resumed fulltime status at the beginning of 2016, her title had been changed 
to office administrator. She also indicated that she was sent to the United States to "prepare for the 
[the Beneficiary's] arrival" and "to assist [the Beneficiary] in managing the real estate projects until 
he is fully adjusted to the American business system and environment." In addition, the record 
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Matter of G-D- Corp. 
includes evidence that the claimed vice president was responsible for performing a number of 
clerical tasks not consistent with a subordinate manager, such as paying invoices and buying a 
printer and furniture for the Petitioner's office. Further, the vice president's duties state that she was 
tasked with managing "office and general administrative duties," but the Petitioner's administrative 
assistant was no longer employed as of the date of the NOIR. In sum, the evidence suggests that the 
vice president was acting primarily in a clerical role and does not demonstrate that she was acting as 
a manager subordinate to the Beneficiary overseeing protessionals as asserted. 
In fact, the vice president's non-clerical duties largely overlap with those of the Beneficiary, 
including managing· real estate projects, assisting the Beneficiary in "direction and policies," hiring 
and firing, analyzing financial documents and policies, and recommending solutions in order to 
establish new directions or strategic plans. First, it does not appear credible that at the time of the 
NOIR the Petitioner required two managerial-level employees, the Beneficiary and vice president, to 
oversee three subordinates and the sales and renovation of three residential properties. As of the 
date of the NOIR, the Petitioner stated that it had only sold one of these properties for revenue and 
indicated in the Beneficiary's duties that it was still seeking financial self-sufficiency, leaving 
question that both he and the vice president were overseeing financial matters and policies. We 
acknowledge that the record includes evidence that the asserted vice president signed real estate 
documents on behalf of the Petitioner; however, the fact that she signed these documents does not 
demonstrate that she acted as a manager subordinate to the Beneficiary. In fact, this evidence 
suggests that the vice president was acting much like a real estate agent, similar to the company's 
other asserted employees, searching out real estate opportunities and buying and selling properties. 
There is no evidence on the record to substantiate that the vice president had supervisory authority 
over other employees. Indeed, the record includes evidence that the vice president signed one of the 
Petitioner's real estate purchase contracts as an agent on behalf of a separate legal entity. 
Therefore, the Petitioner has not demonstrated that the Beneficiary was overseeing a subordinate 
level of managers as necessary for him to primarily focus on the broad goals and policies of the 
organization rather than its day-to-day operations. 
Furthermore, discrepancies in the record leave question as to whether the Petitioner had sufficient 
subordinates to relieve the Beneficiary from performing non-qualifying operational duties. We 
acknowledge that the Petitioner submitted an IRS Form 941 from the third quarter of 2015 reflecting 
that it had six employees. However, the Petitioner also stated that the administrative assistant had 
been terminated prior to the issuance of the NOIR. In addition, submitted evidence indicates that 
one of the claimed real estate project managers is an equal partner in G-0-0- LLC (through his 
ownership in another company), the Petitioner's affiliated company that purchased the discussed 
three residential properties that form the basis of its operations. Further, this real estate project 
manager signed real estate purchase documentation on behalf of G-D-D- LLC as its member and 
president. This evidence leaves substantial question as whether this asserted real estate project 
manager works directly ·for the Petitioner and as a subordinate to the vice president and Beneficiary 
as daimed. 
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Matter of G-D- Corp. 
Likewise, the provided evidence indicates that the other claimed real estate manager also signed real 
estate documentation on behalf of other legal entities opposite the Petitioner. Further, the claimed 
real estate associate/legal consultant is the Beneficiary's former counsel who filed the petition at 
issue here and there is no documentary evidence that she performs real estate duties for the 
Petitioner. In fact, there is little documentation on the record reflecting the Beneficiary's delegation 
of responsibilities and tasks to his claimed subordinates. In total, these discrepancies and 
deficiencies leave uncertainty as to whether the Petitioner had sufficient employees as of the date of 
the NOIR to relieve the Beneficiary from primarily performing non-qualifying operational duties, 
such as its real estate investment identification and renovation plans. Given the evidence submitted, 
it appears more likely that the Beneficiary is devoting a majority of his time to these non-qualifying 
operational matters rather than dictating general goals and policies to subordinate managers. 
The Petitioner has also not demonstrated that it had developed sufficiently to support the Bineficiary 
in an executive capacity as of the date of the NOIR. The Petitioner stated in the Beneficiary's duties 
that he was tasked with conferring with the foreign employer "for continued financial support until 
the Company becomes financially independent." The Petitioner also submitted a 2014 IRS Form 
1120 U.S. Corporation Income Tax Return reflecting that it earned $107,350 during that year. The 
Petitioner further provided evidence indicating that it had sold only one purchased and renovated 
residential property as of the date of the NOIR. It is not clear how these operations are sufficient to 
sustain the Beneficiary in his executive role and the· asserted quarterly wages of $51,983.89 set forth 
in its IRS Form 941 from the third quarter of 2015. In addition, the Petitioner provides little 
indication as to the Petitioner's financial status or revenues as of the date of the NOIR. The 
Beneficiary was originally approved for an L-lA visa as a new office beginning in March 2014; 
however, it is not clear that it developed sufficiently as of the date of the NOIR in September 2015 
(approximately I 9 months later) to support its claimed organizational structure and the Beneficiary 
in an executive capacity. Indeed, the Petitioner appears to acknowledge this on the record by stating 
that it will continue to require the foreign employer's support to operate.2 
The Petitioner has not substantiated that. it had sufficient managers subordinate to the Beneficiary as 
of the date of the NOIR to allow the·Beneficiary to primarily focus on the broad goals and policies 
of the organization rather than its day-to-day operations. S~bmitted documentation indicates that the 
Beneficiary was likely engaged in non-qualifying operational duties and the Petitioner has not 
documented that he was primarily relieved of these tasks at the time of the NOIR. For these reasons, 
the Petitioner has not established that the Beneficiary acted in an executive capacity. 
2 The regulation at 8 C.F.R. § 214.2(1)(3)(v)(C) only allows the "new office" operation one year within the date of 
approval of the petition to support an executive position. There is no provision in the regulations that allows for an 
extension of this one-year period. If a business does not have the necessary staffing to sufficiently relieve the beneficiary 
from performing operational and administrative tasks, the petitioner is ineligible for an extension. 
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Matier of G-D- Corp. 
III. CONCLUSION 
The Petitioner has not established that the Beneficiary was employed in an executive capacity; 
therefore, the revocation of the approved petition will not be disturbed. 
ORDER: The appeal is dismissed. 
Cite as Matter ofG-D- Corp., ID# 1548291 (AAO Aug. 14, 2018) 
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