dismissed L-1A Case: Architecture And Interior Design

Identifying datz deleted ts 
prevent cknrl y un%,vamted 
invasion of personal privacy 
US. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
OfJe of Administrative Appeals MS 2090 
Washington, DC 20529-2090 
U. S. Citizenship 
and Immigration 
Services 
FILE: EAC 08 136 52 172 
 OFFICE: VERMONT SERVICE CENTER 
 Date: 
NOV 2 3 809 
IN RE: 
PETITION: 
 Petition for a Nonimmigrant Worker Pursuant to Section 10 1 (a)(15)(L) of the Immigration 
and Nationality Act, 8 U.S.C. 5 1101(a)(15)(L) 
ON BEHALF OF PETITIONER: 
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. 
If you believe the law was inappropriately applied or you have additional information that you wish to have 
considered, you may file a motion to reconsider or a motion to reopen. Please refer to 8 C.F.R. 5 103.5 for the 
specific requirements. All motions must be submitted to the office that originally decided your case by filing a 
Form I-290B7 Notice of Appeal or Motion, with a fee of $585. Any motion must be filed within 30 days of the 
decision that the motion seeks to reconsider, as required by 8 C.F.R. 5 103.5(a)(l)(i). 
&f7RAhd'~inistrative Appeals Office 
EAC 08 136 52172 
Page 2 
DISCUSSION: The Director, Vermont Service Center, denied the nonimmigrant visa petition. The matter is 
now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. 
The petitioner filed this nonimmigrant petition seeking to extend the employment of its manager as an L-1A 
nonimmigrant intracompany transferee pursuant to section 10 1 (a)(15)(L) of the Immigration and Nationality 
Act (the Act), 8 U.S.C. $ 1101(a)(15)(L). The petitioner, a Maryland corporation, states that it is operating as 
an architecture and interior design company. It claims to be a subsidiary of -1 
located in Guatemala City, Guatemala. The beneficiary was initially granted one year in L-1A classification 
in order to open a new office in the United States and the petitioner now seeks to extend the beneficiary's 
status for three additional years. 
The director denied the petition on three independent and alternative grounds, concluding that the petitioner 
did not establish: (1) that the U.S. and foreign entities have a qualifying relationship; (2) that the beneficiary 
will be employed in a primarily managerial or executive capacity under the extended petition; and (3) that the 
petitioner has secured sufficient physical premises for the business. The director also observed that the 
petitioning company does not appear to be sufficiently operational to support an employee in a managerial 
capacity. 
The petitioner subsequently filed an appeal. The director declined to treat the appeal as a motion and 
forwarded the appeal to the AAO. On appeal, counsel for the petitioner asserts that the director failed to give 
deference to U.S. Citizenship and Immigration Services' (USCIS'S) previous finding that the petitioner and 
beneficiary are eligible for the classification sought. Counsel submits a brief and additional documentary 
evidence in support of the appeal. 
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 the three years preceding the beneficiary's application for admission into the United 
States. In addition, the beneficiary must seek to enter the U.S. temporarily to continue rendering his or her 
services to the same employer or a subsidiary or affiliate in a managerial, executive or specialized knowledge 
capacity. 
The regulation at 8 C.F.R. 5 214.2(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. 
EAC 08 136 52172 
Page 3 
(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 himher 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 (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 first issue to be addressed is whether the petitioner established that the U.S. and foreign entities are still 
qualifying organizations, as required by 8 C.F.R. tj 214.2(1)(14)(ii). To establish the requisite "qualifying 
relationship" under the Act and the regulations, the petitioner must show that the beneficiary's foreign 
employer and the proposed U.S. employer are the same employer (i.e. one entity with "branch" offices), or 
related as a "parent and subsidiary" or as "affiliates." See generally section 10l(a)(15)(L) of the Act; 8 C.F.R. 
2 14.2(1). 
The pertinent regulations at 8 C.F.R. 5 214.2(1)(l)(ii) define the term "qualifying organization" and related 
terms as follows: 
(G) 
 Qualzhing organization means a United States or foreign firm, corporation, or other 
legal entity which: 
(1) 
 Meets exactly one of the qualifying relationships specified in the 
definitions of a parent, branch, affiliate or subsidiary specified in 
paragraph (l)(l)(ii) of this section; 
(2) 
 Is or will be doing business (engaging in international trade is not 
required) as an employer in the United States and in at least one other 
EAC 08 136 52172 
Page 4 
country directly or through a parent, branch, affiliate or subsidiary for the 
duration of the alien's stay in the United States as an intracompany 
transferee[.] 
(I) 
 Parent means a firm, corporation, or other legal entity which has subsidiaries. 
(K) 
 Subsidiary means a firm, corporation, or other legal entity of which a parent owns, 
directly or indirectly, more than half of the entity and controls the entity; or owns, 
directly or indirectly, half of the entity and controls the entity; or owns, directly or 
indirectly, 50 percent of a 50-50 joint venture and has equal control and veto power 
over the entity; or owns, directly or indirectly, less than half of the entity, but in fact 
controls the entity. 
(L) AfJiliate means 
(1) 
 One of two subsidiaries both of which are owned and controlled by the 
same parent or individual, or 
(2) 
 One of two legal entities owned and controlled by the same group of 
individuals, each individual owning and controlling approximately the 
same share or proportion of each entity. 
The petitioner stated on Form 1-129 that it is a subsidiary of Crear Architectural Creations located in 
Guatemala, but did not submit evidence that the United States and foreign entities are still qualifying 
organizations as required by 8 C.F.R. 5 214.2(1)(14)(ii)(A). 
Accordingly, on July 2, 2008, the director issued a request for additional evidence (RFE) in which he 
instructed the petitioner to submit documentary evidence of the ownership and control of both the U.S. and 
foreign entities, including copies of stock certificates for both companies. The director also requested 
evidence to establish that the foreign entity continues to do business in Guatemala. 
In response to the RFE, the petitioner a copy of its articles of incorporation indicating that the U.S. company 
is authorized to issue 1,000 shares of common stock. According to the petitioner's Unanimous Written 
Consent in Lieu of First Meeting of the Board of Directors, the beneficiary purchased all 1,000 shares in 
exchange for $1,000. The petitioner also submitted copies of its stock transfer ledger and stock certificate 
#00, both of which were blank. 
The petitioner also submitted a statement intended to describe the relationship between the Guatemalan and 
U.S. entities: 
EAC 08 136 52172 
Page 5 
Crear Guatemala is management [sic] by as major partner, he runs the business 
and report the results of the activity by annual period. 
[The petitioner] is managed in entire [sic] by [the beneficiary]. He runs the business and have 
[sic] the control of all activities. 
The following chart compares the participation of [the beneficiary] at the companies 
established either in Guatemala and in Maryland. It describes the percentages of [the 
beneficiary's] participation in each branch. 
Crear Guatemala [The petitioner] 
Ownership by [the beneficiary] 35% Ownership by [the beneficiary] 100% 
Stocks 40% Stocks 100% 
Employees obligations 0% Employees obligations 100% 
Buy equipment or 15% Buy equipment or 100% 
Improvements improvements 
The petitioner submitted a notarized document on the foreign entitv's letterhead which indicates that on June 
- 
15, i004, the beneficiary and entered an agreement &herebywould receive 65% of 
the profits of the company, while the beneficiary will receive 35%. According to the third provision of the 
agreement "[the beneficiary] keep the unique quality of sole proprietor for the privileges of the company." 
The petitioner submitted a second document dated September 10, 2004, which indicates that the beneficiary 
and are partners in the company. The petitioner also provided the foreign entity's original 
commercial registry identifying the establishment of the company as a sole proprietorship in 1996. 
As evidence that the foreign company continues to do business, the petitioner submitted: (1) a lease 
agreement for warehouse space entered in September 2008; (2) a general balance sheet as of May 3 1, 2008; 
(3) monthly income tax declarations for the first four months of 2008, which show receipt of monthly 
payments in the amount of 300 Quetzales and no tax due; (4) a copy of an e-mail dated September 18, 2008 
from to the beneficiary which summarized the foreign entity's projects and net income since 
June 2007. 
The director denied the petition, concluding that the submitted evidence failed to establish that the U.S. and 
foreign entities maintain a qualifying relationship and that the foreign entity continues to do business. The 
director observed that the petitioner's stock certificate and stock transfer ledger do not establish the ownership 
and control of the company, and further found insufficient evidence of the current ownership structure of the 
foreign entity. 
On appeal, counsel for the petitioner states that the evidence submitted clearly establishes that the beneficiary 
is the owner of both the foreign and United States entities. In support of this assertion, counsel refers to each 
company's tax returns, which identify the beneficiary as owner. Counsel further emphasizes that the 
petitioner previously had to prove that the petitioner and foreign entity have a qualifying relationship, and that 
"the Vermont Service Center made a specific finding that the Guatemalan and United States companies are 
EAC 08 136 52172 
Page 6 
qualified entities for purposes of the L-1A visa." Counsel emphasizes that "issue preclusion forbids the 
agency to reach a contrary result" in the instant matter. 
In support of the appeal, the petitioner submits a Guatemalan tax form for the beneficiary which is translated 
as "Proof of Retention of the Income Tax and Financial Product," for the period January 1,2008 to September 
30, 2008. The document shows gross income in the amount of 355,334 Quetzales. However, upon close 
examination, it appears that the year has been altered on the document, and that the document may be from 
the year 2003, 2005, or 2006. Doubt cast on any aspect of the petitioner's proof may, of course, lead to a 
reevaluation of the reliability and sufficiency of the remaining evidence offered in support of the visa petition. 
Matter of Ho, 19 I&N Dec. 582, 591 (BIA 1988). Nevertheless, the document does not clearly represent the 
financial results of the foreign entity. 
The petitioner also submits photographs which purport to show the operation of the foreign entity. One 
photograph depicts an interior door bearing what appears to be a temporary paper sign identifying the foreign 
entity's company name. The petitioner also submits a photograph of an employee working at a desk which 
also bears a sign that appears temporary, and several photographs of a workshop area. The photographs do not 
clearly depict the foreign entity's business operations. The petitioner submitted copies of contracts for 
projects purportedly executed by the foreign entity between the months of September and December 2008. 
In addition, the petitioner submits copies of the petitioner's stock certificates numbers 1 through 20. The 
petitioner has indicated on each certificate that the beneficiary has been issued 1,000 shares of stock. The date 
of issuance has not been completed. The AAO notes that the petitioner's stock certificates indicate on their 
face that the company is authorized to issue 1,000 shares. 
Upon review, the petitioner has not established that the petitioner and foreign entity maintain a qualifying 
relationship. The regulation and case law confirm that ownership and control are the factors that must be 
examined in determining whether a qualifying relationship exists between United States and foreign entities 
for purposes of this visa classification. Matter of Church Scientology International, 19 I&N Dec. 593 (BIA 
1988); see also Matter of Siemens Medical Systems, Inc., 19 I&N Dec. 362 (BIA 1986); Matter of Hughes, 18 
I&N Dec. 289 (Comm. 1982). In the context of this visa petition, ownership refers to the direct or indirect 
legal right of possession of the assets of an entity with full power and authority to control; control means the 
direct or indirect legal right and authority to direct the establishment, management, and operations of an 
entity. Matter of Church Scientology International, 19 I&N Dec. at 595. 
As general evidence of a petitioner's claimed qualifying relationship, stock certificates alone are not sufficient 
evidence to determine whether a stockholder maintains ownership and control of a corporate entity. The 
corporate stock certificate ledger, stock certificate registry, corporate bylaws, and the minutes of relevant 
annual shareholder meetings must also be examined to determine the total number of shares issued, the exact 
number issued to the shareholder, and the subsequent percentage ownership and its effect on corporate 
control. Additionally, a petitioning company must disclose all agreements relating to the voting of shares, the 
distribution of profit, the management and direction of the subsidiary, and any other factor affecting actual 
control of the entity. See Matter of Siemens Medical Systems, Inc., supra. Without full disclosure of all 
relevant documents, USCIS is unable to determine the elements of ownership and control. 
EAC 08 136 52172 
Page 7 
Upon review, the petitioner has not submitted sufficient evidence to support its claim that the beneficiary 
owns and controls both the U.S. and foreign entities. While the evidence suggests that the beneficiary is the 
sole owner of the U.S. company, the petitioner has not explained its submission of a blank stock certificate 
and blank stock ledger in response to the RFE. It appears that the petitioner has attempted to correct this 
deficiency by issuing all 20 of its stock certificates to the beneficiary; however, the petitioner has not 
established that the company is authorized to issue 20,000 shares of stock. 
In addition, there are inconsistencies in the record with respect to the evidence of ownership of the foreign 
entity. While some evidence suggests that the beneficiary continues to own the company as a sole proprietor, 
the AAO cannot overlook the beneficiary's own statement in which he stated that his "ownership" of the 
foreign entity is 35%. The petitioner has also referred to as the "major partner" of the foreign 
entity. It is incumbent upon the petitioner to resolve any inconsistencies in the record by independent 
objective evidence. Any attempt to explain or reconcile such inconsistencies will not suffice unless the 
petitioner submits competent objective evidence pointing to where the truth lies. Matter of Ho, 19 I&N Dec. 
582, 591-92 (BIA 1988). If the beneficiary only owns 35 percent of the foreign entity, then it cannot be 
concluded that the two companies are affiliates as defined in the regulations. 
Overall, the petitioner has failed to submit clear, consistent and credible evidence of the ownership of the U.S. 
and foreign entities. 
In addition, the AAO concurs with the director's conclusion that the petitioner failed to establish that the 
foreign entity has been doing business as defined in the regulations. The only documents submitted from the 
previous year are the monthly tax statements which appear to show a minimal monthly income of only 300 
Quetzales. The photographs submitted on appeal are inconclusive and do not clearly show the operation of the 
foreign entity. The petitioner has not submitted the foreign entity's bank statements, copies of invoices for 
work performed, evidence of receipt of payments for clients or its most recent annual tax return. Going on 
record without supporting documentary evidence is not sufficient for purposes of meeting the burden of proof 
in these proceedings. Matter of SofJici, 22 I&N Dec. 158, 165 (Comm. 1998) (citing Matter of Treasure Craft 
of California, 14 I&N Dec. 190 (Reg. Comm. 1972)). 
The AA0 acknowledges counsel's argument that USCIS approved its previous L-1A petition and therefore 
determined that the two entities have a qualifying relationship. Contrary to counsel's assertions, USCIS is not 
bound by this prior determination. The regulations governing the adjudication of an extension request for a 
petition involving a new office explicitly require the petitioner to submit evidence that the United States and 
foreign entities are still qualifying organizations. 8 C.F.R. €j 214.2(1)(14)(ii)(A). To make such a 
determination, the director must review evidence of the ownership and control of each entity, and determine 
whether the foreign entity continues to do business. Furthermore, each petition filing is a separate proceeding 
with a separate record. See 8 C.F.R. €j 103.8(d). In making a determination of statutory eligibility, USCIS is 
limited to the information contained in the record of proceeding. See 8 C.F.R. €j 103.2(b)(16)(ii). If a director 
requests additional evidence that the petitioner may have submitted in conjunction with a separate 
nonimmigrant petition filing, the petitioner is, nevertheless, obligated to submit the requested evidence, as the 
records of the separate nonimmigrant proceedings are not combined. 
EAC 08 136 52172 
Page 8 
Finally, the AAO notes for the record that, as of this date, according to publicly available records maintained 
by the Maryland Department of Assessments and Taxation, the petitioner's corporate status is "forfeited," 
meaning that its existence has been ended by the State for some delinquency.' It is fundamental to this 
nonimmigrant classification that there be a United States entity to employ the beneficiary. In order to meet 
the definition of "qualifying organization," there must be a United States employer that is doing business. See 
8 C.F.R. 5 214.2(1)(1)(ii)(G)(2). 
For the foregoing reasons, the petitioner has not established that it maintains a qualifying relationship with the 
foreign entity as required by 8 C.F.R. 5 214.2(1)(14)(ii)(A). Consequently, the appeal will be dismissed. 
The second issue to be addressed is whether the petitioner established that the beneficiary will be employed in 
a primarily managerial or executive capacity under the extended petition. 
Section 101(a)(44)(A) of the Act, 8 U.S.C. 5 1 101(a)(44)(A), provides: 
The term "managerial capacity" means 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. 5 1 10 l(a)(44)(B), provides: 
See http:l/sdatcert3 .resiusa.orgRICC-Charter/searchByName~a.aspx?mode=name; 
http://sdatcert3 .resiusa.org/UCC-Charterltemp~defs.aspx#forfeited (accessed on November 13,2009). 
EAC 08 136 52172 
Page 9 
The term "executive capacity" means 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. 
The petitioner stated on Form 1-129 that the beneficiary performs the following duties as manager of the U.S. 
operation: 
The alien is in charge of day to day operations, sales and marketing of his firm's services. He 
is assigned to hire new employees and market the company's skills within the Latin 
community. [The beneficiary] has the rare ability to design and implement architectural plans 
and projects. He has deep understanding of the field as well as managerial ability to start up a 
business. 
The petitioner did not submit any additional statement regarding the beneficiary's duties performed during the 
previous year or the duties he will perform under the extended petition, nor did it provide a statement 
describing the staffing of the new operation, or evidence of wages paid to employees, as required by 8 C.F.R. 
$3 2 14.2(1)(14)(ii)(C) and (D). 
Accordingly, on July 2, 2008, the director issued a request for additional evidence (RFE) in which he 
instructed the petitioner to submit, inter alia, the following: (1) a comprehensive description of the 
beneficiary's proposed duties explaining exactly what the beneficiary does for the U.S. company; (2) an 
explanation regarding the amount of time the beneficiary will allot to managerial/executive duties; (3) a list of 
current U.S. employees which includes each employee's name, position title, and complete position 
description; (4) evidence of wages paid to employees and contractors, including copies of IRS Forms W-2, 
941 and 1099; and (5) an organizational charddiagram depicting the staffing structure of the U.S. company. 
In response to the WE, the petitioner submitted a statement from the beneficiary further describing the daily 
job duties he typically performs within the scope of a client project, as follows: 
After the first contact between the client and myself, this is the procedure to establish: 
Measure Job Site 
Request to the Client the Plat plan of his property 
Verify dimensions between this 2 
EAC 08 136 52172 
Page 10 
Establish parameters of the project according to client needs, zoning and regulations 
Preliminary Drawings including as-built and proposed conditions 
Print plans [and] send by e-mail a PDF file for the client consideration 
Meeting with the client, present the project 
Elaborate modifications per client request 
After Review start construction plans that include: 
Cover Sheet 
Demolition Plan (if necessary) 
Architectural Plans (Floor Plans, Sections and Elevations) 
Structural Plans (Foundation, Floor Framing, Wall Framing [and] Roof 
Framing) 
Electrical Plans 
Plumbing Plans (Plumbing Floor Plans and Riser Diagram [for Washington DC 
only]) 
Mechanical Plans 
Print Plans 
Bring plans to Structural Engineer for Review, Stamp and Sign 
Copy Plans for File 
Delivery Note 
Drop plans of [sic] Mail them to the client 
Job site supervision according schedule and agreement with the client 
The petitioner also provided a number of reference letters which shed additional light on the nature of the 
- 
beneficiary's duties. stated that [the 
beneficiary] has worked for our company since March 2006 doing CAD work for our Design/Build projects." 
and 
indicate that thev have "solicited [the beneficiarvl for his service in auto cad for various ~roiects." Mr. 
- 2 . d 
indicates that the beneficiary has 
been teaching Blue Print Reading and Home Improvement classes since 2007- 
I,, states that the beneficiary creates CAD files from hand sketches and recommends the 
beneficiary for work as an architectural draftsman. 
indicates that "for the past 2 years [the beneficiary] has working with us in different ways, especially 
with building plans," and "also sometimes [the beneficiary] at request of customers, he perform supervision 
jobs." 
The petitioner submitted an organizational chart which depicts the beneficiary as president, supervising a 
structural engineer, "draftmen," an accountant, a general contractor and a printing company. The petitioner 
did not provide the requested names or complete position descriptions for the beneficiary's subordinates, nor 
did it provide copies of IRS Forms W-2,94 1 or 1099 as evidence of payments to employees or contractors. 
The petitioner also submitted a copy of a "professional practicum agreement" between the petitioning 
companylbeneficiary and Montgomery College, Applied Technologies Department. It appears that the 
petitioner agreed to provide an 80 hour professional practicum for an undergraduate architecture student in 
January, 2008. 
EAC08 13652172 
Page 11 
The director denied the petition on November 21, 2008, concluding that the petitioner failed to establish that 
the beneficiary would be employed in a primarily managerial or executive capacity under the extended 
petition. The director observed that the petitioner failed to submit the requested names and position 
descriptions for the company's employees, and provided no evidence of wages paid to employees and 
contractors. The director further determined that the petitioner did not provide a comprehensive description of 
the beneficiary's duties or indicate how much of his time would be allocated to managerial or executive 
functions. The director found that the petitioner had not established that the beneficiary would perform 
primarily managerial or executive duties or that he would be managing a subordinate staff of professional, 
supervisory or managerial workers. 
On appeal, counsel for the petitioner asserts that "USCIS made a determination that [the beneficiary] is a 
manager in 2005. Therefore, the USCIS is precluded from making an inconsistent finding of fact." Counsel 
asserts that the evidence clearly establishes that the beneficiary is a manager or executive, as he filed taxes as 
the owner of the company, entered into contractual obligations of the company, and his name is on the 
company's letterhead. 
In support of the appeal, the petitioner submits a staffing list for the U.S. company as follows: 
Principal: [the beneficiary] - Acts as a general manager observing the following activities: 
Relation with clients, developing the plans according to the client needs plus the codes and 
regulations restrictions. 
Design and planning of the projects. 
Architectonic Supervision during the construction process as required by the client 
Printing Co: Subcontract to FedEx Kinkos as an independent contractor 
contractor 
The petitioner submits a letter from who states that the beneficiary has used his services "on 
several occasions." The petitioner also submits a new letter from-1 
-who states that the beneficiary "has provided our company construction projects with a significant 
income to our company. In so doing [the beneficiary] has provided labor for our employees and 
subcontractors. . . . " 
The petitioner also submits copies of approximately 20 contracts secured by the United States entity. The 
AAO notes that nearly all of the contracts involve the provision of preliminaries, design and drawings, 
planning and construction specifications, with the project deliverable including "plans that will include scale 
EAC 08 136 52172 
Page 12 
drawings and construction specifications." There was a single proposal in which the beneficiary proposed 
provided additional services such as work organization, work supervision and work administration related to a 
construction project. 
The petitioner re-submits the description of the beneficiary's daily duties that was provided in response to the 
RFE, and also submits an expanded description of the beneficiary's "executive duties." As the description is 
part of the record, it will not be repeated here. 
Finally, the petitioner has submitted a statement regarding its plans for 2009, in which it notes that the 
company has developed a web site to expand its client base, plans to hire draftsmen in permanent positions, 
and intends to obtain an office space with a secretary, receptionist, assistant and job supervisors. The 
petitioner indicates that the company's long-term plans will involve expanding into construction activities 
with a full staff of office and field workers. 
Upon review, and for the reasons discussed herein, the petitioner has not established that the beneficiary 
would be employed in a primarily managerial or executive capacity under the extended petition. 
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. 8 214,2(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 definitions of executive and managerial capacity each have two parts. First, the petitioner must show that 
the beneficiary performs the high-level responsibilities that are specified in the definitions. Second, the 
petitioner must show that the beneficiary primarily performs these specified responsibilities and does not 
spend a majority of his or her time on day-to-day functions. Champion World, Inc. v. INS, 940 F.2d 1533 
(Table), 1991 WL 144470 (9' Cir. July 30, 1991). While the AAO does not doubt that the beneficiary 
exercises discretion over the petitioner's business as its manager and apparently only full-time employee, the 
totality of the evidence submitted does not demonstrate that the beneficiary's actual duties will be primarily 
managerial or executive in nature. 
The petitioner's primary service is to provide architectural designs, drawings and construction specifications 
for its clients' residential remodeling and renovation projects, and apparently, as a consultant for other firms. 
Based on the petitioner's descriptions of the beneficiary's duties, the beneficiary is solely responsible for 
preparing all designs, drawing and specifications and as such, is directly providing the services of the 
company. 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 Intl, 19 I&N Dec. 593,604 (Comm. 1988). 
The petitioner also indicates that the beneficiary is solely responsible for marketing and selling the petitioner's 
services to clients and performing administrative tasks associated with operating the company, duties which 
do not fall under the statutory definition of managerial or executive capacity. The fact that an individual owns 
and operates a business and has a managerial or executive job title does not necessarily establish eligibility for 
EAC 08 136 52172 
Page 13 
classification as an intracompany transferee in a managerial or executive capacity within the meaning of 
section lOl(aX44) of the Act. See 52 Fed. Reg. 5738,5739 (Feb. 26, 1987). 
By statute, eligibility for this classification requires that the duties of a position be "primarily" of an executive 
or managerial nature. Sections 101(A)(44)(A) and (B) of the Act, 8 U.S.C. 5 1101(a)(44). Pursuant to the 
strict statutory definitions, section 10 l(a)(15)(L) of the Act does not include any and every type of "manager" 
or "executive," such as staff officers or specialists, self-employed persons who perform the management 
activities involved in practicing a profession or trade, or a first-line supervisor of non-professional employees. 
See section 101(a)(44)(A)(iv) of the Act; see also 52 Fed. Reg. 5738, 5740 (February 26, 1987)(available at 
1987 WL 127799). Thus, the fact that the beneficiary owns and exercises discretionary authority over a 
business, enters into contracts, and occasionally hires contractors does not necessarily establish eligibility for 
classification as an intracompany transferee in a managerial or executive capacity as contemplated by the 
statute and regulations. Based on a review of the totality of the evidence submitted, the beneficiary is 
primarily a practicing architect who performs incidental management duties associated with operating the 
business. 
Although counsel states on appeal that the petitioner has contractual employees in the areas of accounting, 
engineering and drafting, the petitioner has neither presented evidence to document wages paid to these 
employees nor identified with specificity the nature and scope of the services these individuals provide. More 
importantly, the petitioner has not explained how the services of the contracted employees obviate the need 
for the beneficiary to primarily market, sell and directly provide the services of the company. As noted 
above, the majority of the petitioner's projects require the beneficiary to provide architectural drawings and 
construction specifications. It has not been established that he regularly supervises construction projects or 
staff assigned to such projects. Going on record without supporting documentary evidence is not sufficient 
for purposes of meeting the burden of proof in these proceedings. Matter of Soflci, 22 I&N Dec. 158, 165 
(Comm. 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm. 1972)). 
Pursuant to section 10 1 (a)(44)(C) of the Act, 8 U.S.C. 5 1 10 1 (a)(44)(C), if staffing levels are used as a factor 
in determining whether an individual is acting in a managerial or executive capacity, USCIS must take into 
account the reasonable needs of the organization, in light of the overall purpose and stage of development of 
the organization. In reviewing the relevance of the number of employees a petitioner has, federal courts have 
generally agreed that USCIS "may properly consider an organization's small size as one factor in assessing 
whether its operations are substantial enough to support a manager." Family Inc. v. US. Citizenship and 
Immigration Services 469 F. 3d 1313, 13 16 (9th Cir. 2006) (citing with approval Republic of Transkei v. INS, 
923 F 2d. 175, 178 (D.C. Cir. 1991); Fedin Bros. Co. v. Suva, 905 F.2d 41, 42 (2d Cir. 1990)(per curiam); Q 
Data Consulting, Znc. v. INS, 293 F. Supp. 2d 25,29 (D.D.C. 2003)). 
Furthermore, in the present matter, the regulations provide strict evidentiary requirements for the extension of 
a "new office" petition and require USCIS to examine the organizational structure and staffing levels of the 
petitioner. See 8 C.F.R. 5 214.2(1)(14)(ii)(D). The regulation at 8 C.F.R. 5 214.2(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 USCIS 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 
EAC 08 136 52172 
Page 14 
the instant matter, the petitioner has not reached the point that it can employ the beneficiary in a 
predominantly managerial or executive position. 
The AAO will address counsel's assertion that the director erred in denying the petitioner's petition for an 
extension of the beneficiary's status when USCIS previously approved a petition based on similar facts. A 
prior approval does not prohibit USCIS from denying an extension of the original visa based on reassessment 
of the petitioner's qualifications. Texas A&M Univ. v. Upchurch, 99 Fed. Appx. 556, 2004 WL 1240482 (5th 
Cir. 2004). Further, the petitioner's prior petition to which counsel refers was a petition to allow the 
beneficiary to enter the United States to open a new office. Thus, that petition was governed by the 
regulations pertaining to new offices. See 8 C.F.R. 5 214.2(1)(3)(~). The present petition is a request for an 
extension of the beneficiary's status after completing a one-year period to open a new office. Thus, the 
present petition is governed by a different set of regulations pertaining specifically to new office extensions. 
See 8 C.F.R. 5 214.2(1)(14)(ii). As different law and evidentiary requirements apply to the present petition, 
the director has a duty to carefully review the petitioner's representations and documentation to determine if 
eligibility has been established. Contrary to counsel's suggestion, the fact that a prior petition was approved 
on behalf of the beneficiary does not serve as prima facie evidence that eligibility has been established in the 
present proceedings. 
Even though the petitioning enterprise is in a preliminary stage of organizational development and anticipates 
additional growth, the petitioner is not relieved from meeting the statutory requirements. A visa petition may 
not be approved based on speculation of future eligibility or after the petitioner or beneficiary becomes 
eligible under a new set of facts. See Matter of Michelin Tire Corp., 17 I&N Dec. 248 (Reg. Comm. 1978); 
Matter of Katigbak, 14 I&N Dec. 45, 49 (Comm. 1971). In the instant matter, the petitioner has not 
established that the beneficiary would be employed in a primarily managerial or executive capacity under the 
extended petition. For this additional reason, the appeal will be dismissed. 
The third issue addressed by the director is whether the petitioner has secured sufficient physical premises to 
house the U.S. operations. The evidence shows that the beneficiary rents a house and operates the business 
out of a home office. Based on the submitted photographs, the office appears to be large enough to 
accommodate one to two people. 
Counsel correctly asserts that the regulation at 8 C.F.R. § 214.2(1)(14)(ii) does not explicitly require the 
petitioner to submit evidence that it has secured physical premises that are sufficient to conduct business. 
However, the AAO finds it reasonable to require that the petitioner continue to occupy adequate physical 
premises for its business throughout the duration of the beneficiary's authorized period of employment in L- 
1A status. Furthermore, as noted above, the prior approval does not preclude USCIS from denying an 
extension of the original visa based on reassessment of the petitioner's qualifications. Texas A&M Univ. v. 
Upchurch, 99 Fed. Appx. 556,2004 WL 1240482 (5th Cir. 2004). 
In this case, the evidence shows that the petitioning company is operating from the beneficiary's home. In lieu 
of a lease agreement naming the petitioning company as lessee, the petitioner submitted a letter from the 
beneficiary's landlord, who states that the beneficiary rents a home from him. There is no evidence that the 
petitioning company has the landlord's permission to operate an architectural business on the leased premises 
or evidence that the petitioner has secured the necessary licenses to operate the home-based business. In the 
EAC 08 136 52172 
Page 15 
present matter, either the petitioner did not comply with this requirement when it filed its new office petition, 
misrepresented that they had complied, or the director committed gross error in approving the initial petition 
without evidence that the petitioner had secured a commercial lease agreement or made the necessary 
arrangements to operate the business from a private residence. The petitioner has not submitted evidence on 
appeal to overcome the deficiencies noted by the director. For this additional reason, the appeal will be 
dismissed. 
The final issue addressed by the director relates to the financial status of the U.S. company. The regulation at 
8 C.F.R. § 214.2(1)(14)(ii)(E) requires the petitioner to submit evidence of the financial status of the U.S. 
entity. The director determined that the petitioner failed to establish "that the U.S. business has grown 
sufficiently to support an employee in a managerial or executive capacity." 
In denying the petition, the director noted that the petitioner's bank statements showed a low account balance 
as of March 3 1, 2008, and that the company earned net income of only $9,470 during the 2007 fiscal year. 
The director determined that the evidence showed "hardly enough funds to establish that the US business 
entity is sufficiently operational to support an employee in a managerial or executive capacity." 
On appeal, counsel for the petitioner asserts that "the regulations do not contain a specific subsection 
requiring [the petitioner] to show that the company has grown sufficiently to hold a managerial capacity 
employment." Nevertheless, counsel emphasizes that the petitioner submitted evidence that it has contracts 
with a number of clients. 
The one-year "new office" provision is an accommodation for newly established enterprises, provided for by 
USCIS regulation, that allows for a more lenient treatment of managers or executives that are entering the 
United States to open a new office. When a new business is first established and commences operations, the 
regulations recognize that a designated manager or executive responsible for setting up operations will be 
engaged in a variety of low-level activities not normally performed by employees at the executive or 
managerial level and that often the full range of managerial responsibility cannot be performed in that first 
year. In an accommodation that is more lenient than the strict language of the statute, the "new office" 
regulations allow a newly established petitioner one year to develop to a point that it can support the 
employment of an alien in a primarily managerial or executive position. 
While the AAO concurs with the director's conclusion that the petitioner failed to establish that it has grown 
to the point where it requires the beneficiary to perform primarily managerial or executive duties, the AAO 
does not base this conclusion on the petitioner's financial status. The petitioner has submitted evidence of its 
financial status in compliance with 8 C.F.R. 8 214.2(1)(14)(ii)(E). There is no specific requirement that the 
petitioner establish that it made a large profit during the first year of operations. Here, the evidence of the 
petitioner's financial status supports a finding that the company has been doing business for the previous year. 
Therefore, the AAO will withdraw the director's comments with regard to the petitioner's first-year financial 
results. However, as discussed above, the AAO concurs with the director's conclusion that the petitioner has 
not established that the U.S. company has grown to the point where it requires the beneficiary to perform 
primarily managerial or executive duties. 
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Page 16 
The petition will be denied and the appeal dismissed for the above stated reasons, with each considered as an 
independent and alternative basis for the decision. 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. 5 1361. 
Here, that burden has not been met. 
ORDER: The appeal is dismissed.