dismissed L-1A Case: Agriculture

U.S. Department of Homeland Security 
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File: SRC 04 007 52019 Office: TEXAS SERVICE CENTER Date: PR 0 1 2m 
Petition: Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(l5)(L) of the Immigration 
and Nationality Act, 8 U.S.C. 5 1 10 1 (a)(] 5)(L) 
IN BEHALF OF PETITIONER: 
SELF-REPRESENTED 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to 
the office that originally decided your case. Any further inquiry must be made to that office. 
,.JuL~l 
bert P. Wiemann, Director 
7 
dministrative Appeals Office 
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Page 2 
DISCUSSION: The Director, Texas Service Center, denied the petition for a nonimmigrant visa. 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 employment of its DirectorIGeneral 
Manager as an L-1 A nonimmigrant intracompany transferee pursuant to section 10 1 (a)(15)(L) of the 
Immigration and Nationality Act (the Act), 8 U.S.C. 5 1101(a)(15)(L). The petitioner is a corporation 
organized under the laws of the State of Florida and provides consulting services in the field of agriculture. 
The petitioner claims that it is the subsidiary of Agroconsultores, C.A., located in Merida, Venezuela. The 
beneficiary was initially granted a one-year period of stay to open a new office in the United States, and the 
petitioner now seeks to extend the beneficiary's stay. 
The director denied the petition concluding that the petitioner did not establish that the beneficiary will be 
employed in the United States in a primarily managerial or executive capacity. 
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, the petitioner asserts that the beneficiary manages 
the essential functions of the U.S. company and is qualified to do so due to his professional education and 
experience. In support of this assertion, the petitioner submits additional evidence. 
To establish eligibility for the L-1 nonimmigrant visa classification, the petitioner must meet the criteria 
outlined in section lOl(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. 9 214.2(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. 
(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. 
The regulation at 8 C.F.R. § 214.2(1)(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 qualifying organizations 
as defined in paragraph (I)(l)(ii)(G) of this section; 
(B) Evidence that the United States entity has been doing business as defined in 
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. 
The issue in the present matter is whether the beneficiary will be employed by the United States entity in a 
primarily managerial or executive capacity. 
Section 101(a)(44)(A) of the Act, 8 U.S.C. 9 1 101(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 
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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. 5 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. 
In the initial petition, the petitioner described the beneficiary's job duties as follows: 
[He] is in charge of. . . [opening] and maintain[ing] our new office in the city of Miami. He 
will be responsible for managing and directing the entire operations, analyzing market 
trend[s] [and] economic conditions to forecast potential purchases and sales. He will engage 
in negotiations, sign and overse[e] substantial international purchase contracts [tolacquire 
[sic] the above mentioned commodities on behalf of the company. He will also hire and 
supervise the professional personnel to guarantee the success of the operation. 
On November 25, 2003, the director requested additional evidence. Specifically, the director requested 
additional information regarding (1) other persons employed by the petitioner, including their job duties and 
educational background, (2) additional detail on the managerial or executive duties of the beneficiary, and (3) 
state and federal tax documentation, including state quarterly tax returns for the past two quarters, proof of 
payment of federal taxes, and federal unemployment tax return documentation. 
In response, the petitioner submitted the requested state and federal tax documents along with a letter, dated 
December 10, 2003. In its December 10, 2003 letter, the petitioner states that it only hires companies 
(subcontractors), as opposed to employees, on an as needed basis to provide for any additional services 
required by the petitioner. In addition, the petitioner provided the following additional details on the job 
duties of the beneficiary: 
The work of Mr. ha[s] been (i) [sic] to direct[] the management of the 
organization; (ii) the goals and policies of the organization in [the United 
States] and abroad; (iii) [to] exercise[] wide latitude in discretionary decision-making and (iv) 
[to] receive[] only general supervision or direction from higher level; [sic] executives, the 
board of directors, or stockholders of the organization. 
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On January 7, 2004, the director denied the petition. The director determined that, due to the structure of the 
company, the beneficiary would have to perform the day-to-day. non-managerial and non-executive duties 
required to run the company. Therefore, absent clear evidence by the petitioner on the specific job duties of 
the beneficiary, the director concluded that the beneficiary was not and will not be employed primarily in a 
managerial or executive capacity for the U.S. company. 
On appeal, the petitioner indicates that the sponsored position of DirectorIGeneral Manager is managerial and 
asserts that "only a professional with a degree and a background comparable to [the beneficiary's]" could 
manage the essential functions of the U.S. company. The petitioner also claims that the beneficiary is 
responsible for (1) "the [full] direction and coordination of activities and operation[s] of the corporation" in 
the United States, and (2) "planning, formulating and implementing administrative and operational policies 
and procedures." 
Upon review, the petitioner's assertions are not persuasive. 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. 3 214.2(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 either in an executive or managerial 
capacity. Id. The petitioner must specifically state whether the beneficiary is primarily employed in a 
managerial or executive capacity. A petitioner cannot claim that some of the duties of the position entail 
executive responsibilities, while other duties are managerial. A beneficiary may not claim to be employed as 
a hybrid "executive/manager" and rely on partial sections of the two statutory definitions. 
In its attempt to meet the statutory definitions for an executive or managerial position, the petitioner initially 
described the position as executive. Once the petition was denied, however, the petitioner claims on appeal 
that the position is more managerial. Specifically, in its cover letter dated September 12, 2003, the petitioner 
states that the beneficiary "has since been promoted to the position of President, a position involving 
executive functions." Then on appeal, the petitioner in its letter dated January 10, 2004 cites the regulations 
pertaining to managerial capacity and claims the sponsored position requires someone with the professional 
background of the beneficiary to perform its managerial duties. 
Despite the fact that the petitioner initially claims the position is executive and later changes its position and 
claims it is managerial, the main issue is that in both instances the petitioner has provided only vague and 
nonspecific descriptions of the beneficiary's duties that fail to demonstrate what the beneficiary does on a day- 
to-day basis. For instance, the petitioner states in its attachment to Form 1-1 29 that the beneficiary's job duties 
include "managing and directing the entire operations" and "hir[ing] and supervis[ing] professional 
personnel." On appeal, the petitioner describes the beneficiary's job duties as including "the [full] direction 
and coordination of activities and operation[s] of the corporation" and "planning, formulating and 
implementing administrative and operational policies and procedures." The petitioner did not, however, 
define (1) what specifically the beneficiary will manage and direct, (2) evidence, including job titles and 
duties, of the professional personnel he has hired and supervised, and (3) what specific administrative and 
operational policies and procedures he will plan, develop and implement. Going on record without 
supporting documentary evidence is not sufficient for purposes of meeting the burden of proof in these 
proceedings. See Mutter of Treasure Craft of Calfornia, 14 I&N Dec. 190 (Reg. Comm. 1972). 
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Moreover, in other descriptions of the beneficiary's job duties, rather than providing specific details of the 
beneficiary's duties, the petitioner generally paraphrased the statutory definitions of both the managerial and 
executive capacities. For instance, in its letter dated December 10, 2003 the petitioner attempted to depict the 
beneficiary's job duties as meeting the definition of executive capacity by stating that they include 
"management of the organization," "establish[ing] the goals and policies of the organization," "exercis[ing] 
wide latitude in discretionary decision-making," and "receives only general supervision or direction." See 4 
lOl(a)(44)(B) of the Act, 8 U.S.C. fj 110l(a)(44)(B). On appeal, the petitioner tried to classify the position as 
being more managerial by adding the following additional job duty: "[he is responsible for] the [full] direction 
and coordination of activities and operation[s] of the corporation" in the United States. See 5 
10 1 (a)(44)(A)(iv) of the Act, 8 U.S.C. fj 1 10 1 (a)(44)(A)(iv). At the same time, contradictory to its 
managerial capacity claim, the petitioner apparently attempted to reinforce its original position by stating the 
beneficiary is also "[responsible for] planning, formulating and implementing administrative and operational 
policies and procedures." See 5 101(a)(44)(B)(ii) of the Act, 8 U.S.C. 5 1 101 (a)(44)(B)(ii). However, 
conclusory assertions regarding the beneficiary's employment capacity are not sufficient. Merely repeating 
the language of the statute or regulations does not satisfy the petitioner's burden of proof; 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), afd, 905 F. 2d 41 (2d. Cir. 1990); Avyr Associates, Inc. v. Meissner, 
1997 WL 188942 at *5 (S.D.N.Y.). Again, the main issue is that the petitioner failed to provide any specific 
descriptions of the beneficiary's job duties, including details of what he does on a day-to-day basis. 
In addition. certain job duties of the beneficiary appear to be neither executive nor managerial. Specifically, 
the petitioner states on its attachment to Form 1-129 that the beneficiary will be responsible for "analyzing 
market trend[s]" and negotiating "international purchase contracts." As the beneficiary actually performs 
market analysis and negotiates the contracts, he is performing a task necessary to provide a service or product, 
and these duties will not be considered managerial or executive in nature. An employee who primarily 
performs the tasks necessary to produce a product or to provide services is not considered to be employed in a 
managerial or executive capacity. Matter of Church Scientology International, 19 I&N Dec. 593, 604 (Comm. 
1988). 
Further, the petitioner not only fails to provide detailed job duties for the sponsored position but also fails to 
specifically document what proportion of the beneficiary's duties would be managerial or executive functions 
and what proportion would be non-managerialhon-executive. As indicated above, the petitioner lists many of 
beneficiary's duties as being executive and managerial (primarily reiterations of the regulations) but fails to 
quantify the time the beneficiary spends on them. This failure is important because several of the 
beneficiary's daily tasks, such as market analysis and contract negotiations, do not fall directly under 
traditional managerial duties as defined in the statute. For this reason, the AAO cannot further determine 
whether the beneficiary is primarily performing the duties of a function manager. See IKEA US, Inc. v. US. 
Dept. of Justice, 48 F. Supp. 2d 22,24 (D.D.C. 1999). 
Furthermore, it should be noted for the record that, although the petitioner initially asserts that the beneficiary 
will hire and supervise a subordinate staff, no detailed information on the beneficiary's staff was ever 
submitted. In fact, although the director requested the specific job duties and educational background of the 
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petitioner's employees, the petitioner only responded with a vague statement indicating that it uses contracting 
services to meet the employment needs of the company. While the petitioner on appeal did present evidence 
that it made payments to two employees/contractors, the record does not establish that the subordinate staff is 
composed of supervisory, professional, or managerial employees. See section 101(a)(44)(A)(ii) of the Act. 
The petitioner was put on notice of required evidence and given a reasonable opportunity to provide it for the 
record before the petition was adjudicated. The petitioner failed to submit the requested evidence and now 
submits on appeal evidence of payments to two employees/contractors. However, the AAO will not consider 
this additional evidence for any purpose. See Matter of Soriano, 19 I&N Dec. 764 (BIA 1988); Matter of 
Ohuigbena, 19 I&N Dec. 533 (BIA 1988). The appeal will be adjudicated based on the record of proceeding 
before the director. 
Based on the record of proceeding before the director, the petitioner in its letter dated January 10, 2004 
actually refers to both of the subordinate personnel as being "clerical employees." A first-line supervisor will 
not be considered to be acting in a managerial capacity merely by virtue of his or her supervisory duties 
unless the employees supervised are professional. Section 101(a)(44)(A)(iv) of the Act. Because the 
beneficiary is apparently supervising a staff of non-professional employees ("clerical staff'), the beneficiary 
cannot be deemed to be primarily acting in a managerial capacity. Moreover, even if the supervised staff had 
been considered to be professional, the petitioner must establish eligibility at the time of filing the 
nonimmigrant visa petition. A visa petition may not be approved at a future date after the petitioner or 
beneficiary becomes eligible under a new set of facts. Matter of Michelin Tire Corp., 17 I&N Dec. 248 (Reg. 
Comm. 1978). Therefore, the record is not persuasive in demonstrating that the beneficiary has been or will 
be employed in a primarily managerial or executive capacity. 
Finally, it should also be noted that 8 C.F.R. 5 21 4.2(1)(3)(v)(C) allows the intended United States operation 
one year within the date of approval of the petition to support an executive or managerial position. In this 
case, the petitioner claims in the initial petition documents (on its attachment to Form 1-129) that the 
beneficiary will "hire and supervise . . . professional personnel." According to the evidence presented, the 
petitioner has failed to hire any professional personnel since the beneficiary began his duties in the United 
States. In addition, upon review of the financial documents submitted, it appears that the petitioner was only 
able to pay the beneficiary approximately $23,500.00 during the period at issue (October 15, 2002 to October 
15, 2003), far short of the designated salary of $36,000.00 per year. See 8 C.F.R. 5 214.2(1)(14)(ii)(E). There 
is no provision in Citizenship and Immigration Services 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 predominantly managerial or executive position. 
Accordingly, the petitioner has not established that the beneficiary will be employed in a primarily managerial 
or executive capacity, as required by 8 C.F.R. 5 214.2(1)(3). 
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. 3 1361. Here, that burden has not been met. Accordingly, the 
director's decision will be affirmed and the petition will be denied. 
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ORDER: The appeal is dismissed.