dismissed L-1A Case: Residential Design Services

U.S. Citizenship 
and Immigration 
Services 
In Re : 25691242 
Appeal of California Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : APR. 28, 2023 
Form 1-129, Petition for a Nonirnmigrant Worker (L-lA Manager or Executive) 
The Petitioner describes itself as a residential design services company. It seeks to continue the 
Beneficiary's temporary employment as its general director and CEO under the L-lA nonirnmigrant 
classification for intracompany transferees . 1 See Immigration and Nationality Act (the Act) 
section 101(a)(l 5)(L) , 8 U.S.C. § 1101(a)(15)(L). The L-lA classification allows a corporation or other 
legal entity (including its affiliate or subsidiary) to transfer a qualifying foreign employee to the United 
States to work temporarily in a managerial or executive capacity. 
The Director of the California Service Center denied the petition, concluding that the record did not 
establish that that the Beneficiary would be employed in the United States in a managerial or executive 
capacity. The matter is now before us on appeal. 8 C.F.R. § 103.3. 
The Petitioner bears the burden of proof to demonstrate eligibility by a preponderance of the evidence . 
Matter ofChawathe , 25 l&N Dec. 369, 375-76 (AAO 2010). We review the questions in this matter 
de novo. Matter of Christo 's, Inc., 26 l&N Dec. 537, 537 n.2 (AAO 2015). Upon de novo review , 
we will dismiss the appeal. 
I. LAW 
To establish eligibility for the L-lA nonirnmigrant visa classification, a qualifying organization must 
have employed the beneficiary in a managerial or executive capacity, or in a position requiring 
specialized knowledge for one continuous year within three years preceding the beneficiary's 
application for admission into the United States. 8 C.F.R. § 214.2(1)(1). The prospective U.S. 
employer must also be a qualifying organization that seeks to employ a beneficiary in a managerial or 
executive capacity. 8 C.F.R. § 214 .2(1)(3)(i). 
1 The record indicates that the Petitioner previously filed a "new office" petition on the Beneficiary 's behalf, and that 
petition was approved for the one-year period from September 27, 2021, until September 15, 2022. A "new office" is an 
organization that has been doing business in the United States through a parent, branch, affiliate, or subsidiary for less than 
one year. 8 C.F.R. § 214.2(l)(l)(ii)(F) . The regulation at 8 C.F.R. § 214.2(1)(3)(v)(C) allows a "new office" operation one 
year within the date of approval of the petition to support an executive or managerial position . 
A petitioner seeking to extend an L-lA petition that involved a new office must submit a statement of 
the beneficiary's duties during the previous year and under the extended petition; a statement 
describing the staffing of the new operation and evidence of the numbers and types of positions held; 
evidence of its financial status; evidence that it has been doing business for the previous year; and 
evidence that it maintains a qualifying relationship with the beneficiary's foreign employer. 8 C.F.R. 
§ 214.2(1)(14)(ii). 
II. EMPLOYMENT IN A MANAGERIAL OR EXECUTIVE CAPACITY 
The sole issue to be addressed is whether the Petitioner provided sufficient evidence to establish that 
the Beneficiary's position with the U.S. entity would be in a managerial or executive capacity. The 
Petitioner does not clearly and consistently state whether the proposed position qualifies as 
employment in a managerial capacity or in an executive capacity. The Director determined that the 
Petitioner did not establish that it would employ the Beneficiary in a primarily managerial or executive 
capacity. We agree, as explained below. 
"Managerial capacity" means an assignment within an organization in which the employee primarily 
manages the organization, or a department, subdivision, function, or component of the organization; 
supervises and controls the work of other supervisory, professional, or managerial employees, or 
manages an essential function within the organization, or a department or subdivision of the 
organization; has authority over personnel actions or functions at a senior level within the 
organizational hierarchy or with respect to the function managed; and exercises discretion over the 
day-to-day operations of the activity or function for which the employee has authority. Section 
10l(a)(44)(A) of the Act. 
"Executive capacity" means an assignment within an organization in which the employee primarily 
directs the management of the organization or a major component or function of the organization; 
establishes the goals and policies of the organization, component, or function; exercises wide latitude 
in discretionary decision-making; and receives only general supervision or direction from higher-level 
executives, the board of directors, or stockholders of the organization. Section 101 (a)( 44 )(B) of the 
Act. 
Based on the statutory definitions of managerial and executive capacity, the Petitioner must first show 
that the Beneficiary will perform certain high-level responsibilities. See sections 101(a)(44)(A) and 
(B) of the Act. The Petitioner must also demonstrate that the Beneficiary will be primarily engaged 
in managerial or executive duties, as opposed to ordinary operational activities alongside other 
employees. See Family Inc. v. USCIS, 469 F.3d 1313, 1316 (9th Cir. 2006). Further, the Petitioner 
must clearly describe the duties to be performed by the Beneficiary and indicate whether such duties 
are either in an executive or managerial capacity. Beyond the required description of the job duties, 
we examine the company's organizational structure, the duties of a beneficiary's subordinate 
employees, the presence of other employees to relieve a beneficiary from performing operational 
duties, the nature of the business, and any other factors that will contribute to understanding a 
beneficiary's actual duties and role in a business. Accordingly, we will discuss evidence regarding the 
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Beneficiary's job duties along with evidence of the nature of the Petitioner's business, its staffing 
levels, and its organizational structure. 
A. Duties 
As a threshold matter, a pet1t10ner claiming that a beneficiary will perform as a "hybrid" 
manager/executive will not meet its burden of proof unless it has demonstrated that the beneficiary 
will primarily engage in either managerial or executive capacity duties. See section 10l(a)(44)(A)-(B) 
of the Act. While in some instances there may be duties that could qualify as both managerial and 
executive in nature, it is the petitioner's burden to establish that the beneficiary's duties meet each set 
of criteria as put forth in the statutory definition for either managerial or executive capacity. A petition 
may not be approved if the evidence of record does not establish that the beneficiary will be primarily 
employed in either a managerial or executive capacity. 
At the time of filing, the Petitioner indicated that in addition to the Beneficiary, it had hired an 
executive assistant, a project architect, and an office manager. Regarding the Beneficiary's duties, the 
Director noted that the statement of duties submitted was a restatement of the Beneficiary's duties 
under the original office petition that included vague duties and listed broad tasks. Accordingly, the 
Director issued a request for evidence (RFE), asking for further evidence and information about the 
Beneficiary's duties and the staffing of the U.S. entity. 
In response, the Petitioner stated that in the next two years, the Beneficiary will divide his time 
between the direction of management within the company and establishing goals and policies for the 
business development. The Petitioner also submitted the following overview of the Beneficiary's 
duties: 
Direction of Management within the Company ( 40%) 
• Exercising complete executive control over all personnel matters, including 
hiring all personnel, setting performance standards, deciding on employee 
compensation, and terminating staff when necessary. 
• Assuring that proper training procedures are established for the positions hired, 
including the Office Manager, Project Architect, and Executive Assistant for 
the first year. 
• Setting the strategic direction and setting key performance management 
indicators. 
• Provision of a quarterly dashboard analysis of financial and performance 
outcomes. 
• Mapping the trajectory for the team and monitor progress against planned 
trajectory in areas of service delivery quality assurance and financial growth. 
• Assessing the roles of the company to determine whether adjustments to the 
business plan are needed, specifically with the hiring and firing of personnel. 
• Providing strategic leadership and identify actions to be put in place to remedy 
poor performance, replicate good performance and reward achievements, 
including time scales and cost. 
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• Ensuring annual objectives are agreed with all staff with the teams and ensure 
that all staff are trained and developed. 
Establish goals and policies for the business development ( 60%) 
• Developing business relationships, generating and negotiating new income for 
[the Petitioner] to agreed monthly and yearly set target invoiced revenue. 
• Acting as the face of the organization, the Beneficiary will represent [the 
Petitioner] to potential clients through direct communication in face to face 
meetings, telephone calls, marketing materials and emails. 
• Managing important external relationships with all clients. 
• Fulfilling contracts and successful handover to personnel within the company, 
including the Project Architect and Office Manager. 
• Leading the staff in possessing drive, motivation, and acute attention to detail 
in ensuring all opportunities for [the Petitioner] are captured and explored. 
• Representing [the Petitioner] at industry events and trade shows, in a 
professional manner will leverage [the Petitioner] intention of gaining business 
leads and contacts. 
• Developing, managing, and maintaining a pipeline of potential business at all 
times utilizing staff members as the Beneficiary deems best to complete this 
goal. 
• Creating and being accountable for all client proposals, contracts, and any 
further documentation, in line with the Petitioner's procedures. 
• Having a thorough understanding of the clients' objectives, budgets, and overall 
goals for their projects. 
• Participating in response to tenders and handle requests for information in a 
timely and accurate manner. 
• Keeping up to date with issues affecting the design and construction industry. 
In the denial notice, the Director concluded that the Petitioner had not established the Beneficiary's 
duties have been, and would be, primarily managerial or executive. The Director again noted that the 
statement of duties did not provide a clear overview of the actual duties performed by the Beneficiary, 
or how the Beneficiary would be relieved from performing non-qualifying tasks. The Director also 
concluded that the Petitioner had not established that the Beneficiary's subordinate staff would relieve 
him from performing non-qualifying duties, and specifically noted that the modifications in the 
Petitioner's organizational structure in response to the RFE constituted a material change. 
On appeal, the Petitioner asserts that the Director's finding was erroneous, and asserts that although 
the Beneficiary's stated duties are more akin to those of an executive, they nevertheless meet the 
definitions of both managerial and executive capacity. The Petitioner resubmits the previously 
submitted overview of the Beneficiary's duties, referring to this document as a summary of the 
Beneficiary's "executive" duties, while simultaneously claiming that he is managing the U.S. entity 
and supervising its newly-hired personnel. 
Here, the Petitioner has offered competing claims about the Beneficiary's employment. On the one 
hand, it states that the Beneficiary will perform "executive duties," where he will focus on policy, 
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goals and strategy, while on the other hand, it claims that the Beneficiary would manage personnel, 
including hiring, training, and supervising new employees. Further, despite providing a job duty 
breakdown with time allocations, the Petitioner did not clearly describe the Beneficiary's proposed 
position or convey a meaningful understanding of his actual daily tasks. For instance, the Petitioner 
stated that the Beneficiary would set the strategic direction and set key performance management 
indicators for the Petitioner, but it did not identify these key indicators nor did it provide specific 
information describing the manner of the company's direction. Likewise, the job description broadly 
states that the Beneficiary would provide strategic leadership without elaborating on the tasks this 
responsibility would entail. Reciting a 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 actual duties themselves will reveal the true nature of the employment. F edin 
Bros. Co., Ltd. v. Sava, 724 F. Supp. 1103, 1108 (E.D.N.Y. 1989), aff'd, 905 F.2d 41 (2d. Cir. 1990). 
The Petitioner also stated that the Beneficiary would serve as the face of the organization, noting that 
he would represent the Petitioner in face to face meetings, telephone calls, marketing materials and 
emails, as well as represent the Petitioner at industry events and trade shows in an effort to gain 
business leads and contacts. The Petitioner also claimed that the Beneficiary would handle all external 
client accounts. An employee who "primarily" performs the tasks necessary to produce a product or 
to provide services is not considered to be "primarily" employed in a managerial or executive capacity. 
See, e.g., sections 10l(a)(44)(A) and (B) of the Act (requiring that one "primarily" perform the 
enumerated managerial or executive duties); Matter of Church Scientology Int'!, 19 I&N Dec. 593, 
604 (Comm'r 1988). 
The Petitioner has not consistently stated whether the Beneficiary's job duties should be classified as 
executive or managerial, and it has also provided deficient job descriptions that preclude a meaningful 
understanding of precisely how the Beneficiary would either direct the management of the 
organization and set the organization's policies or how he would manage the organization and act as 
a personnel manager. Furthermore, the fact that the Beneficiary will manage or direct the business 
does not necessarily establish eligibility for classification as an intracompany transferee in a 
managerial or executive capacity within the meaning of section 10l(a)(44) of the Act. By statute, 
eligibility for this classification requires that the duties of a position be "primarily" managerial or 
executive in 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 level of authority with 
respect to discretionary decision-making, these elements alone are insufficient to establish that the 
Beneficiary's actual duties would be primarily managerial or executive in nature. The Petitioner must 
support its assertions with relevant, probative, and credible evidence. See Matter of Chawathe, 25 
I&N Dec. at 376. The Petitioner's failure to meet fundamental requirements, as described above, 
impedes our ability to assess the Beneficiary's role within the scope of the U.S. organization. 
B. Staffing 
Beyond the required description of the job duties, we also examine the company's organizational 
structure, the duties of a beneficiary's subordinate employees, the presence of other employees to 
relieve a beneficiary from performing operational duties, the nature of the business, and any other 
factors that will contribute to understanding a beneficiary's actual duties and role in a business. 
Moreover, if staffing levels are used as a factor in determining whether an individual is acting in a 
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managerial or executive capacity, we 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) 
of the Act. Because the Petitioner must meet all eligibility requirements at the time of filing, we must 
consider the state of the company at the time it filed the extension petition in September 2022. See 8 
C.F.R. § 103.2(b)(l). 
At the time of filing the extension petition, the Petitioner had four employees: the Beneficiary, an 
executive director, a project architect, and an office manager. According to the Petitioner's 
organizational chart, all three employees reported directly to the Beneficiary. 
In the RFE, the Director noted that the position descriptions for these individuals were deficient, and 
requested additional information regarding their roles within the company and the manner in which 
they relieved the Beneficiary from performing non-qualifying duties. The Director also noted that no 
information regarding their job requirements or educational backgrounds was provided. Moreover, 
the Director specifically noted a discrepancy regarding the office manager's stated duties, which 
included "supervising monitoring the work of staff" Noting that the organizational chart depicted no 
subordinate staff under the office's manager's supervision, the Director requested clarification on this 
issue. 
In response, the Petitioner submitted an updated organizational chart, demonstrating that the Petitioner 
directly supervised the office manager and executive assistant, and that the office manager now 
directly supervised the project architect. As noted by the Director, this organizational chart differed 
from the chart submitted in support of the extension petition, where the Beneficiary directly supervised 
all three of the aforementioned positions. 
On appeal, the Petitioner acknowledges the Director's concerns regarding the modified organizational 
chart, but focuses on the Beneficiary's decision to hire an office manager during its first year of 
operations instead of a design architect as originally indicated in its business plan. The Petitioner 
claimed that the hiring of an office manager was essential to allow the Beneficiary to primarily perform 
the managerial and executive duties required by his position. The Petitioner, however, did not clarify 
the reasons for the modification of its organizational hierarchy as depicted on the second 
organizational chart. 
Upon review, we concur with the Director's determination that the modified organizational chart 
constitutes a material change. In its response to the RFE, the Petitioner modified the organizational 
structure of the Petitioner. In sum, the initial chart had the project architect reporting directly to the 
Beneficiary, while the second chart delegated supervisory responsibility over the project architect to 
the office manager. 
The purpose of the RFE is to elicit further information that clarifies whether eligibility for the benefit 
sought has been established. 8 C.F.R. § 103.2(b)(8). When responding to an RFE, a petitioner cannot 
offer a new position to a beneficiary, or materially change a position's title, its level of authority within 
the organizational hierarchy, or its associated job responsibilities. A petitioner must establish that the 
position offered to a beneficiary, when the petition was filed, merits classification as a managerial or 
executive position. See 8 C.F.R. § 103.2(b)(l). If significant changes are made to the initial request 
for approval, a petitioner must file a new petition rather than seek approval of a petition that is not 
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supported by the facts in the record. The information provided by the Petitioner in its response to the 
Director's RFE did not clarify or provide more specificity to the original duties of the office manager's 
position, but rather modified the Petitioner's organizational structure to correspond with the office 
manager's claimed supervisory duties. 
The statutory definition of"managerial capacity" allows for both "personnel managers" and "function 
managers." 2 See section 10l(a)(44)(A) of the Act. 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." Id. 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)(1 )(ii)(B)(3). 
Although a beneficiary is not required to supervise personnel, if a petitioner claims that a beneficiary's 
duties involve supervising employees, then a petitioner must establish that the subordinate employees 
are supervisory, professional, or managerial. See section 10l(a)(44)(A)(ii) of the Act. 
Although requested in the RFE, the Petitioner did not provide the level of education required to 
perform the duties of its executive assistant, project architect, and office manager. Any failure to 
submit requested evidence that precludes a material line of inquiry shall be grounds for denying the 
petition. 8 C.F.R. § 103.2(b)(l4). Thus, the Petitioner has not established that the Beneficiary's 
subordinates possess baccalaureate degrees and that their positions require such degrees, such that we 
can consider these employees to be professionals. The Petitioner has also not shown that the 
Beneficiary's subordinates supervise other employees or that they manage a department or function, 
such that they can be classified as managers or supervisors. Although the Petitioner modified its 
organizational chart in response to the RFE to make the office manager's position supervisory in 
nature, the new chart did not clarify or provide more specificity to the office manager's position, but 
rather modified the Petitioner's organizational structure to assign the office manager a supervisory 
title. A petitioner may not make material changes to a petition in an effort to make a deficient petition 
conform to U.S. Citizenship and Immigration Services (USCIS) requirements. See Matter of Izummi, 
22 I&N Dec. 169, 176 (Assoc. Comm'r 1998). We will not consider the office manager's new position 
in the organizational chart for purposes of determining whether the Beneficiary oversees supervisory 
employees. 
For the reasons outlined above, the Petitioner has not shown that the Beneficiary's subordinate 
employees are supervisory, professional, or managerial, as required by section 10l(a)(44)(A)(ii) of the 
Act. 
As noted by the Petitioner on appeal, USCIS must take into account the reasonable needs of the 
organization in light of the overall purpose and stage of development of the organization if staffing 
levels are used as a factor in determining whether an individual is acting in a managerial or executive 
capacity. See section 10l(a)(44)(C) of the Act. However, the regulations provide strict evidentiary 
requirements for the extension of a "new office" petition and require USCIS to examine the 
2 Here, the Petitioner did not claim that the Beneficiary would be employed as a function manager. 
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organizational structure and staffing levels of the Petitioner. See 8 C.F.R. § 214.2(1)(14)(ii)(D). 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 or managerial position. If the business does 
not have sufficient staffing after one year to relieve the Beneficiary from primarily performing 
operational and administrative tasks, 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 
predominantly managerial or executive position. As noted above, in addition to the Beneficiary's 
vaguely stated job description, the description also indicates that the Beneficiary will be the primary 
face of the Petitioner. The Petitioner claims that the Beneficiary will handle all external relationships 
with its clients, will represent the Petitioner at industry trade shows to solicit potential business, and 
will meet with clients face to face as well as distribute marketing materials. Such duties appear more 
akin to those of a marketing or sales associate than to a manager or executive. Therefore, while the 
Petitioner claims that the Beneficiary has been and will continue to be employed in a primarily 
managerial or executive capacity, it does not explain how the Beneficiary was relieved from 
performing non-qualifying duties at the time of filing. 
In sum, 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 or managerial position. If a business 
does not have the necessary staffing after one year to sufficiently relieve the Beneficiary from 
performing operational and administrative tasks, the Petitioner is ineligible for an extension. Here, 
the Petitioner did not adequately describe the Beneficiary's job duties within the context of its 
operations nor did it demonstrate that sufficient subordinate staff was available at the time of filing to 
perform the non-qualifying operational and administrative duties of the business. 
III. DEFERENCE 
Lastly, in matters involving an extension request to a previously approved petition, USCIS, where 
appropriate, defers to its prior decision when the extension request is filed by the same parties and for 
the same position in the same nonimmigrant classification. See generally 2 USCIS Policy Manual 
A.4(B)(l), https://www.uscis.gov/policymanual; see also USCIS Policy Alert, PA-2021-05, 
Deference to Prior Determinations of Eligibility in Requests for Extensions of Petition Validity (Apr. 
27, 2021 ), https://www.uscis.gov/sites/default/files/document/policy-manual-updates/202 l 0427-
Deference. pdf 
However, we do not defer to prior approvals where there has been a material change in circumstances 
or eligibility requirements. See 2 USCIS Policy Manual, supra, at A.4(B)(l). This includes situations 
in which the regulations require criteria to be met after approval, such as L-lA extension petitions for 
new offices detailed at 8 C.F.R. § 214.2(1)(3)(v)(C) (a new office has one year from the date of the 
initial approval to support an executive or managerial position). See 8 C.F.R. § 214.2(1)(14)(ii) (a 
petitioner seeking to extend an L-1 petition that involved a new office must submit a statement of the 
beneficiary's duties during the previous year and under the extended petition; a statement describing 
the staffing of the new operation and evidence of the numbers and types of positions held; evidence 
8 
of its financial status; evidence that it has been doing business for the previous year; and evidence that 
it maintains a qualifying relationship with the beneficiary's foreign employer). 
As acknowledged by the Director, the Beneficiary was previously granted L- lA status that authorized 
him to work for the Petitioner in the offered position. Although there is a previous finding of 
eligibility, the burden of proof in the request for an extension of petition validity remains on the 
petitioner. See section 291 of the Act. Here, we will not defer to the prior approval because, as noted 
above, the record does not consistently state whether the Beneficiary's job duties should be classified 
as executive or managerial, and also contains deficient job descriptions that preclude a meaningful 
understanding of precisely how the Beneficiary would either direct the management of the 
organization and set the organization's policies or how he would manage the organization and act as 
a personnel manager. Moreover, the record as constituted does not credibly demonstrate that the 
Petitioner has the necessary staffing after one year to sufficiently relieve the Beneficiary from 
performing operational and administrative tasks. 
IV. CONCLUSION 
For the reasons discussed above, the Petitioner has not established by a preponderance of the evidence 
that it would employ the Beneficiary in a primarily managerial or executive capacity, or that its new 
office had developed to an extent that it could support a primarily managerial or executive position at 
the time it filed the extension petition in September 2022. 
ORDER: The appeal is dismissed. 
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