sustained L-1A Case: Structural Moving

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PUBLIC COP)! 
DATE: DEC 1 5 2011 Office: CALIFORNIA SERVICE CENTER 
INRE: Petitioner: 
Beneficiary: 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration 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)(l5)(L) of the Immigration 
and Nationality Act, 8 U.S.C. § 1101(a)(15)(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. 
Thank you, 
erry 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 sustain the appeal and approve 
the petition. 
The petitioner filed this nonimmigrant petition seeking to employ the beneficiary as an L-I A nonimmigrant 
intracompany transferee pursuant to section~L) of the Immigration and Nationality Act (the Act), 8 
U.S.C. § 1101(a)(15)(L). The petitioner, a _corporation established in October 2001, states that it 
operates a business in the structural moving/transposition of buildings. The petitioner claims to be 
an affiliate located in Canada. The petitioner seeks to employ the 
beneficiary from November 2009 to November 2012 to serve in the position of Regional Assistant General 
Manager. 
The director denied the petition on two independent and alternative grounds, concluding that the petitioner 
failed to establish: (1) that the beneficiary has been primarily performing the duties of a manager or executive 
with the foreign company; and (2) that the beneficiary will be performing duties in the proposed position that 
are primarily managerial or executive. 
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 for the petitioner asserts that the director's 
decision "ignores and misevaluates substantial evidence presented." Counsel submits a brief and additional 
evidence in support of the appeal. 
I. The Law 
To establish eligibility for the L-l nonimmigrant visa classification, the petitioner must meet the criteria 
outlined in section 101(a)(15)(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 (1)(1)(ii)(G) of this section. 
(ii) Evidence that the alien will be employed in an executive, managerial, or specialized 
knowledge capacity, including a detailed description of the services to be performed. 
(iii) Evidence that the alien has at least one continuous year of full-time employment 
abroad with a qualifying organization within the three years preceding the filing of 
the petition. 
(iv) Evidence that the alien's prior year of employment abroad was in a position that was 
managerial, executive or involved specialized knowledge and that the alien's prior 
education, training, and employment qualifies himlher to perform the intended 
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services in the United States; however, the work in the United States need not be the 
same work which the alien performed abroad. 
Section 101(a)(44)(A) of the Act, 8 U.S.C. § 1101(a)(44)(A), defines the term "managerial capacity" as an 
assignment within an organization in which the employee primarily: 
(i) manages the organization, or a department, subdivision, function, or component of 
the organization; 
(ii) supervises and controls the work of other supervisory, professional, or managerial 
employees, or manages an essential function within the organization, or a department 
or subdivision of the organization; 
(iii) if another employee or other employees are directly supervised, has the authority to 
hire and fire or recommend those as well as other personnel actions (such as 
promotion and leave authorization), or if no other employee is directly supervised, 
functions at a senior level within the organizational hierarchy or with respect to the 
function managed; and 
(iv) exercises discretion over the day-to-day operations of the activity or function for 
which the employee has authority. 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. § 1 1 o 1 (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 Abroad in Managerial Capacity 
The first issue addressed by the director is whether the petitioner established that the beneficiary has been 
primarily performing the duties of a manager or executive with the foreign company. 
Facts and Procedural History 
The petitioner filed the Form 1-129, Petition for a Nonimmigrant Worker, on October 27, 2009. The 
petitioner indicated on the Form 1-129 that it operates a business engaged in the structural 
moving/transposition of buildings with 18 current employees and a gross annual income of$1.9M. In support 
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of the petition, the petitioner submitted a letter describing the foreign position held by the beneficiary as 
follows: 
[The beneficiary] is currently the Assistant General company] at the 
branch of operations in Canada. has employed [the 
on a continuous full time basis in Canada since July of 1991. [The beneficiary] 
manages four supervisors and other intermediate managers, who in tum manage two crew 
supervisors, subordinate drivers and laborers, sales staff, and office staff. 
As the Assistant General Manager of [the foreign company], [the beneficiary] maintains the 
authority and duties of a qualifying manager. Specifically, [the beneficiary] has the authority 
to establish company policies and direction with respect to day to day operations, answering 
directly to the owners of the organization. He negotiates significant contract for moving 
structures and makes major decisions necessary to keep the Canadian business in operation. 
Additionally, he is responsible for hiring and firing key personnel, subject only to the 
oversight of ownership. [The beneficiary] ensures that subordinate foremen and their crews 
will conduct their business safely and up to code. He receives only general supervision from 
the President and Board of Directors for the company. In sum, [the beneficiary] has the 
authority and latitude to exercise broad discretion in executing his managerial duties. 
The petitioner also provided an organizational chart for the entire enterprise, including the foreign and U.S. 
companies. The organizational chart illustrates that the foreign company employs 17 individuals, including 
the beneficiary, in four divisions. The beneficiary is listed as the assistant general manager supervising an 
office manager with three subordinates, a sales manager with one subordinate, an estimator/operations 
manager with one supervisor and three subordinates, and an industrial operations manager with one 
supervisor and two subordinates. The beneficiary reports directly to the general manager who is also the 
president of the enterprise. 
The director issued a request for additional evidence ("RFE") on October 30, 2009, instructing the petitioner 
to submit, inter alia, additional documentation on the beneficiary'S duties abroad and subordinate employees. 
In response to the RFE, the petitioner provided a percentage breakdown of the beneficiary'S duties abroad, 
noting, in part, that he "establishes company policy and direction," "negotiates significant contracts ... and 
makes major decisions necessary to keep the Canadian business in operation," and has the "authority and 
latitude to exercise broad discretion in executing his managerial duties." 
The petitioner further provided examples of goals and policies established by the beneficiary, examples of 
discretionary decisions made by the beneficiary in the previous six months, and additional day-to-day 
activities performed by the beneficiary in the previous six months. The petitioner also provided the same 
organizational chart submitted with the initial petition. 
The director denied the petition on December 3, 2009, concluding that the petitioner failed to establish that 
the beneficiary has been primarily performing the duties of a manager or executive with the foreign company. 
In denying the petition, the director found that the petitioner provided a vague and nonspecific description of 
the beneficiary's duties at the foreign company that failed to demonstrate what the beneficiary does on a day­
to-day basis. The director further found that the petitioner did not define the goals, policies, or strategies 
established by the beneficiary. The director concluded that it is unclear whether the beneficiary'S position 
abroad is primarily managerial or executive. 
Page 5 
On appeal, counsel submits a brief that refers to the same duties previously provided by the petitioner. 
Counsel contends that the director overlooked pages of evidence submitted as to the specifics of the 
beneficiary's current duties. 
The decision does not address such particulars as ... (4) twenty-four bullet points of specific 
managerial responsibilities performed by the beneficiary for the past six months; (5) the 
Beneficiary's 18 years of experience with the Canadian affiliate; (6) the detailed hierarchy 
charts for the organization and the Beneficiary's place on these charts; .... 
Discussion 
Upon review, counsel's assertions are persuasive. The AAO finds sufficient evidence to establish that the 
beneficiary has been primarily performing the duties of a manager or executive with the foreign company. 
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(I)(3)(ii). Contrary to the director's 
observations, the petitioner has provided a comprehensive description of the beneficiary's duties with the 
foreign company sufficient to establish that his duties are primarily related to the management of the 
petitioner's business, and not to producing a product, providing a service, or performing other non-managerial 
functions. The evidence submitted also establishes that the beneficiary supervises and controls the work of 
subordinate managerial or professional employees and exercises authority to hire and fire employees under 
his supervision. See sections 101(a)(44)(A)(ii) and (iii) of the Act. 
While the beneficiary will undoubtedly be required to apply his expertise to perform some higher-level 
contract negotiations, the AAO is persuaded that the beneficiary's subordinates at the foreign company carry 
out the majority of the day-to-day non-managerial tasks required to operate the business. The petitioner need 
only establish that the beneficiary devotes more than half of his time to managerial or executive duties for the 
foreign company. The petitioner has met that burden. 
B. Managerial or Executive Duties 
The second issue addressed by the director is whether the petitioner established that the beneficiary will be 
performing duties in the proposed position that are primarily managerial or executive. 
Facts and Procedural History 
The petitioner filed the Form 1-129, Petition for a Nonimmigrant Worker, on October 27,2009. In support of 
the petition, the petitioner submitted a letter describing the beneficiary's proposed duties as follows: 
We would like [the beneficiary] to serve as the Regional Assistant General Manager for our 
_ operations as well as our Canadian operations, so that he may be able to fully 
manage our day-to-day operations on both sides of the border. With L-IA approval, [the 
beneficiary] would continue to work primarily in and out of Canada, but would enter the 
United States and exercise managerial authority in the United States as operations dictate. 
Our continuing expansion into the United States has created this need for [the beneficiary's] 
presence. 
If granted L-IA status, [the beneficiary] will exercise wide discretion in setting the long and 
short-term direction of the U.S. Company, subject strictly to the ownership's review. [The 
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beneficiary] will hire and fire personnel, supervise managerial staff, consult with 
professionals, negotiate contracts, and generally oversee day-to-day operations. His tasks 
will include hiring and overseeing the work of subordinates and staff, bidding for contracts, 
and implementing the company's business plan. 
[The petitioner] currently has a workforce of approximately eighteen employees, which 
includes a Regional General Manager, an Office Manager, a Sales Manager, an Operations 
Manager, two Estimators, a sales staff, two crew foremen, a crew of four operators and 
laborers, eight prep crew, and three office staff. Additional laborers will be hired as projects 
dictate. All staff, excluding the Regional General Manager, but subordinate supervisors, will 
answer to [the beneficiary]. 
The petitioner also provided an organizational chart for the entire enterprise, including the foreign and U.S. 
companies. The organizational chart illustrates that the U.S. company employs 25 individuals, including the 
beneficiary, in four divisions. The beneficiary is listed as the assistant general manager supervising an office 
manager with three subordinates, a sales manager with one subordinate, an operations manager with two crew 
foremen and twelve subordinates, and an estimator with one subordinate. The beneficiary will report directly 
to the general manager who is also the president of the enterprise. 
The director issued a request for additional evidence ("RFE") on October 30, 2009, instructing the petitioner 
to submit, inter alia, additional documentation on the beneficiary'S duties for the U.S. company and 
subordinate employees. 
In response to the RFE, the petitioner indicated that the beneficiary will spend 65% of his time in Canada with 
the Canadian company (in his current position abroad) and 35% of his time at the U.S. company. The 
petitioner further provided a percentage breakdown of the beneficiary'S duties for his time in Canada and in 
the United States, noting, in part, that his duties for the U.S. company will include "establish[ing] company 
policy and implement[ing a] business plan," "hir[ing] and fir[ing] personnel and general staffing issues," 
"general management of supervisors, crews, office staff, and contracted personnel," and "set[ting] long and 
short term direction of [the] company, in conjunction with [the] owners." 
The petitioner submitted a list of its U.S. employees along with payroll records, a quarterly wage detail report 
for the third quarter of2009, and 2008 IRS Forms W-2. 
The director denied the petition on December 3, 2009, concluding that the petitioner failed to establish that 
the beneficiary will be performing duties in the proposed position that are primarily managerial or executive. 
In denying the petition, the director found that the petitioner provided a vague and nonspecific description of 
the beneficiary'S proposed duties at the U.S. company that failed to demonstrate what the beneficiary will do 
on a day-to-day basis. The director further found that having the beneficiary come to the United States to 
render his services to the foreign entity is contrary to the regulation. The director concluded that the record 
demonstrates that the position in the United States is not primarily managerial or executive in capacity. 
On appeal, counsel submits a brief that refers to the same proposed duties previously provided by the 
petitioner. Counsel contends that the director overlooked pages of evidence submitted as to the specifics of 
the beneficiary'S current duties. 
The decision does not address such particulars as (1) submission of financial statements 
detailing the size of operations to be managed ($2.1 million dollars in annual revenues for the 
U.S. company, $1.4 million in assets for the U.S. company, and substantially more for the 
Page 7 
Group); (2) payroll records submitted in triplicate (18 U.S. employees and growing); (3) salary 
of the beneficiary ($78,000 plus benefits); ... (6) the detailed hierarchy charts for the 
organization and the Beneficiary's place on these charts; and (7) the fact that the Beneficiary 
was being asked to fill a former L-IA manager position, held by a retiring owner of the 
company. 
Discussion 
Upon review, counsel's assertions are persuasive. The AAO finds sufficient evidence to establish that the 
beneficiary will be performing duties in the proposed position that are primarily managerial or executive. 
Contrary to the director's observations, the petitioner has provided a description of the beneficiary's proposed 
duties at the U.S. company sufficient to establish that his duties will be primarily related to the management 
of the petitioner's business, and not to produce a product, provide a service, or perform other non-managerial 
functions. The evidence submitted establishes that the beneficiary will supervise and control the work of 
subordinate managerial or professional employees and exercises authority to hire and fire employees under 
his supervision. See sections 1 o 1 (a)(44)(A)(ii) and (iii) of the Act. 
Furthermore, the AAO notes that the beneficiary may spend the majority of his time working at the foreign 
company and coming to the United States intermittently to perform managerial or executive duties at the U.S. 
company. See 8 C.F.R. § 214.2(I)(12)(ii). The director improperly determined that the beneficiary is coming 
to the United States to render his services to the foreign company and as such does not comply with 8 C.F.R. 
§ 214.2(1)(1 )(ii)(A); however, the petitioner clearly demonstrated that the beneficiary will come to the United 
States to render his services to the U.S. company and only perform duties related to the foreign company 
while he is abroad. 
While the beneficiary will undoubtedly be required to apply his expertise to perform some higher-level 
contract negotiations and other tasks, the AAO is persuaded that the beneficiary's subordinates in the United 
States will carry out the majority of the day-to-day non-managerial tasks required to operate the business. 
The petitioner need only establish that the beneficiary will devote more than half of his time at the U.S. 
company to managerial or executive duties. The petitioner has met that burden. 
III. Conclusion 
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, the petitioner has met that burden. Accordingly, the 
director's decision dated December 3, 2009 is withdrawn and the petition is approved. 
ORDER: The appeal is sustained.