dismissed L-1A Case: Architectural Services

U.S. Department of Homeland Security 
20 Massachusetts Ave., N.W., Rm. A3000 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
File: WAC 05 209 50532 Office: CALIFORNIA SERVICE CENTER Date: JUN 0 2007 
Petition: 
 Petition for a Nonimrnigrant Worker Pursuant to Section 10 1 (a)(15)(L) of the Immigration 
and Nationality Act, 8 U.S.C. 9 1 101(a)(15)(L) 
IN BEHALF OF PETITIONER: 
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. 
Robe 
Administrative Appeals Office 
WAC 05 209 50532 
Page 2 
DISCUSSION: The Director, California Service Center, denied the petition for a nonimrnigrant visa. The 
matter is now before the Administrative Appeals Office (AAO) on appeal. The AAO will dismiss the appeal. 
The petitioner filed this nonimrnigrant visa petition seeking to extend the employment of its president as an L- 
1A nonimmigrant intracompany transferee pursuant to section 101(a)(15)(L) of the Immigration and 
Nationality Act (the Act), 8 U.S.C. 3 1 101(a)(15)(L). The petitioner is a corporation organized under the laws 
of the State of California and is allegedly engaged in the business of providing architectural room analyses, 
material testing, and decontamination services. 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 (1) the beneficiary will be 
employed in the United States in a primarily managerial or executive capacity; or (2) the petitioner had been 
"doing business" during the year preceding the filing of the petition. 
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 to the petitioner asserts that the director 
erred and that the beneficiary's duties are primarily those of an executive or manager. Counsel did not 
address the director's determination that it has not been "doing business." While counsel indicated in the 
Form I-290B that he would file a brief andlor evidence with the AAO within 30 days of the filing of the 
appeal, no brief or evidence has ever been received. On December 19,2006, counsel confirmed by facsimile 
that he did not file a brief or evidence in support of the appeal contrary to that indicated on the Form I-290B. 
To establish eligibility for the L-1 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. 3 214.2(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 (l)(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 
WAC 05 209 50532 
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managerial, executive or involved specialized knowledge and that the alien's prior 
education, training, and employment qualifies hider to perform the intended 
services in the United States; however, the work in the United States need not be the 
same work which the alien performed abroad. 
The regulation at 8 C.F.R. 5 214.2(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 (l)(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 first 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. 5 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 
WAC 05 209 50532 
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In response, counsel to the petitioner submitted a letter dated October 28, 2005 in which he explained that 
payroll summaries and wage reports are unavailable for the petitioner "pending the employment of required 
staff of the corporation." Counsel also described the beneficiary as having consulted with architectural 
departments; overseen the transfer of corporate offices from Los Angeles to Lancaster, California; and 
prepared monthly reports and action plans for the parent company in Switzerland. Counsel also submitted an 
organizational chart which places the beneficiary at the top of the organization. However, as counsel 
admitted that the petitioner has no employees, the subordinate employee positions identified in the chart are 
apparently unfilled. 
On December 1, 2005, the director denied the petition. The director concluded that the petitioner failed to 
establish that the beneficiary will be employed primarily in a managerial or executive capacity. 
On appeal, counsel to the petitioner asserts that the beneficiary's duties are primarily those of an executive or 
manager. 
Upon review, counsel's assertions are not persuasive. 
Title 8 C.F.R. 5 2 14.2(1)(3)(v)(C) allows the "new office" operation one year within the date of approval of 
the petition to support an executive or managerial position. There is no provision in Citizenship and 
Immigration Services (CIS) regulations that allows for an extension of this one-year period. 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 United States operation has not reached the point that it can employ the beneficiary in a 
predominantly managerial or executive position. 
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. As explained above, 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. 
The petitioner's description of the beneficiary's job duties has failed to establish that the beneficiary will act 
in a "managerial" capacity. In support of its petition, the petitioner has provided a vague and nonspecific 
description of the beneficiary's duties that fails to demonstrate what the beneficiary will do on a day-toyday 
basis. For example, the petitioner states that the beneficiary develops business plans; formulates policies, 
goals, and procedures; and prepares monthly reports. The petitioner did not, however, specifically define 
what plans will be developed; what policies, goals, and procedures will be formulated; or what reports are 
being and will be prepared. The fact that the petitioner has given the beneficiary a managerial title and has 
prepared a vague job description which includes lofty duties does not establish that the beneficiary will 
actually perform managerial duties. 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 
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matter of reiterating the regulations. Fedin Bros. Co., Ltd. v. Suva, 724 F. Supp. 1 103 (E.D.N.Y. 1989), aff'd, 
905 F.2d 41 (2d. Cir. 1990). Going on record without supporting documentary evidence is not sufficient for 
purposes of meeting the burden of proof in these proceedings. Matter of Treasure Craft of California, 14 
I&N Dec. 190 (Reg. Comm. 1972). 
The petitioner has also failed to establish that the beneficiary will supervise and control the work of other 
supervisory, managerial, or professional employees, or will manage an essential hnction of the organization. 
As indicated in counsel's letter dated October 28, 2005, the petitioner does not have any employees. Given 
the absence of a subordinate staff which could relieve the beneficiary of the need to perform the non- 
qualifying operational or administrative tasks inherent in the operation of any business, or of the need to 
provide services to the petitioner's customers, it must be concluded that the beneficiary is performing these 
tasks and providing these services himself. 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 sections 101(a)(44)(A) and (B) of the Act (requiring that one "primarily" perform the 
enumerated managerial or executive duties); see also Matter of Church Scientology International, 19 I&N 
Dec. 593, 604 (Comm. 1988). Therefore, the petitioner has not established that the beneficiary will be 
employed primarily in a managerial capacity. 
Similarly, the petitioner has failed to establish that the beneficiary will act in an "executive" capacity. 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 subordinate level of employees for the beneficiary to 
direct, and the beneficiary must primarily focus on the broad goals and policies of the organization rather than 
the day-to-day operations of the enterprise. An individual will not be deemed an executive under the statute 
simply because they have an executive title or because they "direct" the enterprise as the owner or sole 
managerial employee. The beneficiary must also exercise "wide latitude in discretionary decision making" 
and receive only "general supervision or direction from higher level executives, the board of directors, or 
stockholders of the organization." Id. For the same reasons indicated above, the petitioner has failed to 
establish that the beneficiary will be acting primarily in an executive capacity. The job description provided 
for the beneficiary is so vague that the AAO cannot deduce what the beneficiary will do on a day-to-day 
basis. Moreover, as explained above, the beneficiary appears to be primarily providing services to customers 
and/or performing non-qualifying administrative or operational tasks. Therefore, the petitioner has not 
established that the beneficiary is employed primarily in an executive capacity. 
It is appropriate for CIS to consider the size of the petitioning company in conjunction with other relevant 
factors, such as a company's small personnel size, the absence of employees who would perform the non- 
managerial or non-executive operations of the company, or a "shell company" that does not conduct business 
in a regular and continuous manner. See, e.g., Systronics Corp. v. INS, 153 F. Supp. 2d 7, 15 (D.D.C. 200 1). 
As indicated above, the record indicates that the petitioner has no employees. Apparently, the petitioner does 
not even employ the beneficiary. Thus, the AAO is left to question whether the beneficiary is even rendering 
services to the petitioner and, therefore, whether the beneficiary can be considered to be an intracompany 
transferee as defined in 8 C.F.R. 3 214.2(1)(l)(ii)(A). Moreover, as further explained below, the record is 
WAC 05 209 50532 
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devoid of any evidence that the petitioner is engaged in any business activity. While the record indicates that 
the beneficiary and his spouse have been involved in one or more real estate transactions, both the business 
records and the beneficiary's individual tax return fail to establish that the beneficiary, or the petitioner, has 
been providing any of the services described in the initial petition. 
Accordingly, in this matter, the petitioner has failed to establish that the beneficiary will be primarily 
performing managerial or executive duties, and the petition may not be approved for that reason. 
The second issue in the present matter is whether the petitioner has been "doing business" as defined by 8 
C.F.R. 8 214.2(1)(l)(ii)(H) during the previous year as required by 8 C.F.R. 5 214.2(1)(14)(ii)(B). "Doing 
business" is defined in pertinent part as "the regular, systematic, and continuous provision of goods and/or 
services." 
The record is devoid of any evidence of any business activity by the petitioner. The only evidence of any 
business activity pertains to the beneficiary and his spouse and not to the petitioner. 
On August 9, 2005, the director requested copies of bank statements and the petitioner's federal income tax 
returns for 2003 and 2004. In response, the petitioner provided a single bank statement showing a balance of 
$215.56 and the beneficiary's individual tax return. The petitioner did not provide a copy of the petitioner's 
IRS Forms 1120 for 2003 and 2004 and did not give any explanation for its inability to provide these 
documents. 
On December 1, 2005, the director denied the petition. The director concluded that the petitioner failed to 
establish that it had been doing business for one year prior to the filing of the instant petition. 
On appeal, counsel does not address this determination by the director. 
Upon review, the AAO concurs with the decision of the director and will dismiss the appeal. 
The petitioner has offered no evidence that it has been "doing business" in a regular, continuous, and 
systematic manner. The record is devoid of any evidence of any business activity by the petitioner. The 
petitioner failed to provide any invoices or other documents which could establish business activity other than 
a single bank statement showing a balance of $215.56. While it appears as if the beneficiary and his spouse 
may have been involved in one or more real estate transactions, this activity does not appear to pertain to the 
petitioner. Moreover, the director specifically requested copies of the petitioner's corporate tax returns for 
2003 and 2004, and the petitioner chose not to provide copies of these documents. Failure to submit requested 
evidence that precludes a material line of inquiry shall be grounds for denying the petition. 8 C.F.R. 5 
103.2(b)(14). 
Accordingly, the petitioner has not established that it has been "doing business" as defined by 8 C.F.R. 3 
214.2(1)(l)(ii)(H) during the previous year, and the petition may not be approved for that reason. 
The initial approval of an L-1A new office petition does not preclude CIS from denying an extension of the 
original visa based on a reassessment of petitioner's qualifications. Texas A&M Univ., 99 Fed. Appx. 556, 
WAC 05 209 50532 
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2004 WL 1240482 (5th Cir. 2004). Despite any number of previously approved petitions, CIS does not have 
any authority to confer an immigration benefit when the petitioner fails to meet its burden of proof in a 
subsequent petition. See section 291 of the Act, 8 U.S.C. 5 1361. 
In visa petition proceedings, the burden of proving eligibility for the benefit sought remains entirely with the 
petitioner. Id. Here, that burden has not been met. Accordingly, the appeal will be dismissed. 
ORDER: The appeal is dismissed.