dismissed L-1A Case: Automotive Parts

U.S. Department of Homeland Security 
U. S. Citizenship and Immigration Services 
Ofice of Adminrstrative Appeals MS 2090 
identifying data ddeted tQ 
 Washington, DC 20529-2090 
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invasion of Fc;'*sd GL"; 2. L-I 
File: WAC 07 193 55228 Office: CALIFORNIA SERVICE CENTER Date: 2 1 MAT 2009 
Petition: 
 Petition for a Nonirnmigrant Worker Pursuant to Section 10 1 (a)(15)(L) of the Immigration 
and Nationality Act, 8 U.S.C. 5 1 10 1 (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. 
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. 9 103.5 for 
the specific requirements. All motions must be submitted to the office that originally decided your case by 
filing a Form I-290B, 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 or reopen, as required by 8 C.F.R. 3 103.5(a)(l)(i). 
--3* 
John F. Grissom 
 -4.w 
Acting Chief, Administrative Appeals Office 
WAC 07 193 55228 
Page 2 
DISCUSSION: The director, California Service Center, denied the petition for a nonimmigrant visa. 
The matter subsequently came before the Administrative Appeals Office (AAO), where the appeal 
was dismissed. The AAO later issued a sua sponte motion to reopen and reconsider its prior decision 
pursuant to 8 C.F.R. 5 103.5(a)(5)(ii). Therefore, the matter is currently before the AAO on its own 
motion. The AAO will reaffirm its prior decision dismissing the appeal. 
The petitioner filed this nonimmigrant petition seeking to employ the beneficiary as its marketing 
manager 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. 5 1 10 1 (a)(15)(L). The petitioner is a Kansas 
corporation and is allegedly an "after market auto parts manufacturer and wholesaler." 
The director denied the petition based on the determination that the petitioner failed to establish that 
the beneficiary would be employed in the United States in a qualifying capacity. 
The petitioner subsequently filed an appeal in which counsel asserted that the director erred and that 
the beneficiary's duties are primarily those of a manager and an executive. 
In a decision dated August 1, 2008, the AAO dismissed the appeal, finding that the petitioner failed 
to overcome the director's ground for denial. Further, the AAO dismissed the appeal on one 
additional ground that had not been previously cited by the director. Specifically, the AAO found 
that the petitioner also failed to establish that the beneficiary was employed abroad in a qualifying 
managerial or executive capacity. 
On September 29, 2008, the petitioner and the beneficiary filed a complaint against the U.S. 
government for declaratory and injunctive relief in the United States District Court, Central District 
of California. The parties agreed to stay the case for 180 days to permit the AAO to reopen and 
reconsider the matter. An order to this effect was signed by the on 
November 26,2008. 
Pursuant to this agreement, the AAO gave notice to the petitioner on February 25, 2009 that, on its 
own motion, the decision dated August 1,2008 would be reopened and reconsidered and that a new 
decision, one that may be unfavorable to the petitioner, would be issued. See 8 C.F.R. 5 
103S(a)(5)(ii). 
The petitioner has since responded to the above notice with additional evidence and information, all 
of which have been carefully evaluated. A full discussion of the petitioner's submissions and 
eligibility is provided below. 
To establish eligibility for the L-1 nonimrnigrant 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 
WAC 07 193 55228 
Page 3 
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 primary issue in the present matter is whether the beneficiary would be employed by the United 
States entity in a primarily managerial or executive 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 qualifylng 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 qualifylng 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 hirnher 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. 
Section 101 (a)(44)(A) of the Act, 8 U.S.C. 5 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 
WAC 07 193 55228 
Page 4 
(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. 8 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. 
The petitioner filed a Form 1-129 on June 13, 2007, seeking to continue its employment of the 
beneficiary. In Part 5 of the Form 1-129, the petitioner claimed that the beneficiary would be 
compensated $60,000 annually and claimed to have four employees at the time of filing. In support 
of the Form 1-129, the petitioner provided a letter dated May 1, 2007 in which a description of the 
beneficiary's proposed employment under an extended petition was provided. As the AAO restated 
this information in its prior decision, it need not repeat the same in the current decision.' The 
petitioner's support letter also included the following list of its three claimed em lo ees other than 
the beneficiary) and their respective roles within the petitioning entity: 1) & who is 
claimed to be in charge of the petitioner's public relations activity, including circulating the 
petitioner's product information to relevant publications, drafting and creating publicity material, and 
choosing which publications and venues to advertise the petitioner's products; 2) - 
who is claimed to be the product representative responsible for obtaining and 
responding to end-user feedback about the petitioner's products, expanding sales, developing the 
petitioner's web site, and ensuring that the petitioner's products are displayed on outside websites; 
and 3) who is charged with overseeing product manufacture, quality control, and 
development. While the petitioner identified and as employees who 
provide valuable services to the U.S. entity, neither is claimed to actually be remunerated by the U.S. 
entity. Rather, while the petitioner claimed that 
 is a U.S. citizen and further stated 
that he spends 40% of his time in the United States providing services for the petitioner, this 
individual is claimed to be employed and remunerated by the petitioner's foreign parent company. 
Similarly, - who the petitioner claimed is a German citizen, is also claimed as the foreign 
parent company's employee. 
I See pages three and four of the AAO decision dated August 1,2008. 
WAC 07 193 55228 
Page 5 
On July 23,2007, the director issued a request for additional evidence (RFE) in which the petitioner 
was instructed to provide several quarterly wage reports with employee names, social security 
numbers, and the number of weeks worked, as well as further information about the petitioner's 
organizational hierarchy and the specific job duties of the beneficiary and his subordinates. 
In response to the director's request, the petitioner provided a letter dated October 1 1, 2007 in which 
counsel provided the following description of the beneficiary's proposed employment: 
Implementation of Strategy. The record has established that the employees of the 
[pletitioner discharge roles of considerable importance . . . . However, the 
[pletitioner's business would not encounter the success that is it [sic] experiencing but 
for the direction of the [bleneficiary . . . . A considerable segment of the [pletitioner's 
time is taken towards coordinating the work and efforts of its employees so that each 
of them operates in a manner that it is consistent with the others. [Tlhe [bleneficiary 
is primarily concerned with setting the overall strategies for the [pletitioner. These 
comprise solidifying the [pletitioner's presence in the United States through rigorous 
marketing of its name and European reputation and maintenance of the high quality 
of the products the [pletitioner together with the expansion of product lines to other 
automobiles. These strategies can only by [sic] furthered by directing the 
[pletitioner's staff in an appropriate manner. . . . It is estimated that the [bleneficiary 
expends approximately 30% discharging this duty. 
Formulation of Strategy. 
 To ensure that everyone involved in the [pletitioner 
operates consistent with company strategy, as the head of the business, the 
[bleneficiary has ultimate responsibility for determining what that strategy is. 
Clearly, the implementation of poorly thought out strategy may be fatal to the success 
of the [pletitioner. The [bleneficiary carries the considerable burden of seeking out 
strategies that may enhance the business and reputation of the [pletitioner. For 
example, it was the [bleneficiary who decided to focus the United States operations 
on the SmartTOP device in preference to a number of other electronic and cable 
connectivity devices . . . . Rather than stretch the [pletitioner's resources on the 
fixtherance of these products, in a diluted American marketplace, the [bleneficiary 
chose to focus on core strength of the [pletitioner. It is estimated that the 
[bleneficiary expends approximately 20% discharging this duty. 
Expansion/Relocation Plans. . . . Kansas was initially chosen as the site for the 
commencement of U[.]S[.] operations . . . . The [bleneficiary now is faced with the 
issues of (a) the cost of doing business in Kansas is significantly less than in 
Germany, so, therefore, might some manufacturing operations be cost effectively 
transferred to the United States and (b) the customer centers for Porsche automobiles 
in the United States are on the coasts. Is the further development of the business best 
served by operating out of California or Florida? It is estimated that the [bleneficiary 
WAC 07 193 55228 
Page 6 
expends approximately 10% discharging this duty. 
The Head of the Petitioner is the Face of the Petitioner. [Tlhe beneficiary is aware 
that new developments and product news must be presented by the head of the 
[pletitioner. In addition to the product being the face of the [pletitioner, the 
[bleneficiary understands that he is the human face, as the initial inventory of the 
SmartTop device. To this end, the [bleneficiary does his best to appear at automobile 
shows and functions . . . . It is estimated that the [bleneficiary expends approximately 
10% discharging this duty. 
Financial Issues. The continued growth of the [pletitioner, its marketplace, and 
product line bring with them associated financial questions, questions which, prior to 
the retention of a specific individual to act as [flinancial [mlanager, fall to the 
[bleneficiary to execute. . . . The [bleneficiary is currently seeking advice from 
outside advisors as to which type of financing is available . . . . The decision to seek 
external debt financing through U[.]S[.] banking institutions or to seek equity 
financing through private placement is a priority issue for the [bleneficiary . . . . It is 
estimated that the [bleneficiary expends approximately 15% discharging this duty. 
StafJing. . . . The [bleneficiary has complete discretion as to hiring decisions, and this 
discretion was exercised in the hire of and . This 
discretion will be exercised further in the decision of retention of further sales and 
product representative staff and in the decision to hire an individual with 
responsibility for financial matters. It is estimated that the [bleneficiary expends 
approximately 5% discharging this duty. 
While not previously noted, the AAO now observes that the above job description accounted for 
only 90% of the beneficiary's time, thereby leaving the AAO to also question what tasks or job 
responsibilities would consume the remaining 10% of the beneficiary's time and whether that time is 
spent performing tasks of a qualifylng nature. In counsel's letter dated April 24,2009, it is explained 
that this previously unaccounted for portion of the beneficiary's time would be spent "for creative 
product ideas in the style of Steve Jobs/Bill Gates." As such, it does not appear to be time spent 
performing qualifylng managerial or executive duties as defined by the Act. Regardless, the 
unsupported statements of counsel on appeal or in a motion are not evidence and thus are not entitled 
to any evidentiary weight. See INS v. Phinpathya, 464 U.S. 183, 188-89 n.6 (1984); Matter of 
Ramirez-Sanchez, 17 I&N Dec. 503 (BIA 1980). 
On December 17, 2007, the director denied the petition, basing the adverse decision on the finding 
that the petitioner failed to establish that the beneficiary will be employed primarily in a managerial 
or executive capacity. 
On appeal, counsel argued that the director erred by oversimplifying the petitioner's sales business 
by incorrectly ascribing marketing duties to the beneficiary and further asserted that the director 
WAC 07 193 55228 
Page 7 
failed to properly analyze the beneficiary's allegedly qualifying duties. 
The AAO properly found that, in light of the evidence and information on record, counsel's 
arguments were not persuasive. The AAO specifically addressed the content of the beneficiary's 
proposed job description, finding that the description lacked sufficient detail regarding the 
beneficiary's daily activities and the means by which the beneficiary would approach the stated 
business objectives on a day-to-day basis. The AAO was also clear in addressing the role that the 
petitioner's deficient support staff played in reaching the adverse conclusion. Precedent case law 
was duly cited in support of the AAO's reliance on the petitioner's staffing as a factor in determining 
whether the petitioner would be able to employ the beneficiary in a primarily managerial or 
executive capacity. 
With regard to the additional ground for dismissing the appeal, i.e., the beneficiary's non-managerial 
or non-executive capacity during his employment abroad, the AAO concluded that the petitioner 
failed to provide an adequate job description to establish what the beneficiary did on a daily basis. 
The AAO also found the petitioner's claim, that a single employee was able to relieve the beneficiary 
from having to perform non-qualifying tasks, generally lacking in credibility. 
In the AAO's notice dated February 25, 2009, the petitioner was notified that a new decision would 
be issued. The petitioner was given another opportunity to provide any additional evidence and/or 
legal argument to support its case and/or rebut any of the AAO's adverse findings. Additionally, the 
AAO issued a comprehensive RFE, instructing the petitioner to provide documentary evidence 
establishing that the two employees, who are absent from the petitioner's wage reporting documents, 
were actually compensated for services they purportedly provided and continue to provide to the 
petitioner. 
Next, the petitioner was asked to clarify the confusion over the location where it has been 
conducting business. As the petitioner was incorporated in the State of Kansas, the AAO was 
unclear as to why the petitioner now claims to have established a new office in the State of 
California. 
The petitioner was also asked to provide complete official transcripts of the beneficiary's tax returns 
as well as evidence of the "usual corporate benefits" that were claimed as part of the beneficiary's 
compensation for employment with the petitioning entity. 
Lastly, the AAO instructed the petitioner to provide evidence establishing that the foreign parent 
corporation continues to exist as a legal entity and continues to do business in a regular, systematic, 
and continuous manner. 
On April 29, 2009, the AAO received the petitioner's response, which consisted of supplemental 
documentation and a letter dated April 24, 2009 from counsel. First, counsel takes issue with the 
choice of words used by the AAO in formulating the RFE dated August 1, 2008. Specifically, 
counsel argues that the AAO intended to convey the understanding that an adverse decision will be 
WAC 07 193 55228 
Page 8 
issued. Counsel, however, has apparently misunderstood the stated purpose of the AAO's combined 
motion and RFE. The second paragraph on the first page of the AAO's notice states in no uncertain 
terms that a follow-up decision will be issued. Please note, the AAO did not state that its intent was 
to issue an unfavorable decision. Rather, the AAO clearly stated that the new decision "may be 
unfavorable to the affected party." (emphasis added). This language comes directly fiom the 
regulations and is in strict compliance with the requirements stated in 8 C.F.R. 5 103.5(a)(5)(ii). 
Contrary to counsel's belief, therefore, there is no indication that the AAO was speculating as to the 
adverse nature of the new decision. 
Next, counsel contends that the AAO failed to comply with 8 C.F.R. 5 103.2(b)(16)(i), claiming that 
the AAO did not specify which adverse information it planned to rely upon if a new adverse decision 
were to be issued. Again, counsel appears to misconstrue the explanation offered by the AAO in 
paragraph three of the August 1, 2008 notice. A thorough review of the relevant paragraph clearly 
establishes that the AAO was referring to the records of proceeding pertaining to the petitioner's two 
previously filed Form 1-129 petitions. The AAO specifically cited the receipt numbers of both 
petitions and acknowledged that their contents are not part of the instant record of proceeding. Thus, 
not only did the AAO adequately prepare the petitioner of the possibility that additional adverse 
information may be found in documentation that is outside the instant record of proceeding, but the 
AAO provided the petitioner with sufficient information such that the petitioner can obtain the same 
and review it as well, if necessary. 
Counsel continues his dispute of the AAO's adverse findings, claiming that both the director and the 
AAO trivialize the petitioner's progress. However, counsel fails to point to specific statements that 
may support these assertions. Again, the unsupported statements of counsel on appeal or in a motion 
are not evidence and thus are not entitled to any evidentiary weight. See INS v. Phinpathya, 464 U.S. 
at 188-89 n.6; Matter of Ramirez-Sanchez, 17 I&N Dec. 503. Upon review of these claims, 
however, the AAO finds that the director and the AAO focused on the facts, or lack thereof, in the 
given situation and relied heavily on the description of the beneficiary's job duties and the 
petitioner's staffing to determine how the petitioner plans to relieve the beneficiary fiom having to 
primarily perform non-qualifjmg tasks. In fact, a thorough review of the August 1, 2008 decision 
reveals that the AAO clearly explained that the beneficiary's job description and the petitioner's 
staffing are insufficient to warrant approval of the instant petition. 
Moreover, in light of the significance of a detailed job description, which 8 C.F.R. 5 214.2(1)(3)(ii) 
expressly requires, the AAO raised valid concerns about the lack of specific information describing 
the beneficiary's daily tasks. While counsel maintains his objection to the director's and the AAO's 
adverse findings regarding the deficient job description, his statements are unconvincing. The 
purpose of a detailed job description is to provide an accurate account of the tasks the beneficiary 
would perform on a daily basis so that U.S. Citizenship and Immigration Services (USCIS) can gain 
an understanding of how the beneficiary would spend his time within a given organizational 
hierarchy. Precedent case law has confirmed the extreme importance of a detailed job description, 
establishing that the actual duties themselves reveal the true nature of the employment. Fedin Bros. 
Co., Ltd. v. Suva, 724 F. Supp. 1 103, 1 108 (E.D.N.Y. 1989), afd, 905 F.2d 4 1 (2d. Cir. 1990). 
WAC 07 193 55228 
Page 9 
In the present matter, counsel continues his objection and restates, verbatim, the job description the 
petitioner provided in the May 12, 2007 support letter. However, merely restating a job description, 
which has already been found deficient on three different occasions-first in the RFE, then in the 
director's denial, and later in the AAO's dismissal of the appeal--does not rectify the job 
description's obvious flaws, regardless of counsel's strong belief to the contrary. For instance, 
counsel previously stated that implementation of strategy, a responsibility to which the beneficiary 
will devote 30% of his time, would require that the beneficiary coordinate the work and efforts of 
other employees. However, the petitioner assigned no specific tasks to explain how the beneficiary 
plans to coordinate, nor has the petitioner addressed USCIS's questions about the employees the 
beneficiary would be coordinating. 
As noted by the AAO in its August 1,2008 
 its February 25, 2009 sua sponte 
motion, the record does not establish that either 
 are or 
have been employed by the petitioning entity. 
 Despite the petitioner's repeated claims, its tax 
returns, quarterly wage returns, and payroll summary identify only two individuals as employees of 
the petitioning entity at the time the petition was filed-the beneficiary and In 
fact, the petitioner readily admits that bothand are employees of the 
foreign entity. While the petitioner makes repeated claims that both men provide services for the 
petitioner, these claims have yet to be substantiated with documentary evidence. Going on record 
without supporting documentary evidence is not sufficient for purposes of meeting the burden of 
proof in these proceedings. Matter of Sofici, 22 I&N Dec. 1 58, 1 65 (Comm. 1 998) (citing Matter of 
Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm. 1972)). 
That being said, the AAO notes that the petitioner and its foreign parent entity are two separate 
entities each with its own separate staff. While there is no general objection to the employees of one 
company providing services to the other entity, such transactions must be documented. Thus, 
despite the parenthubsidiary relationship between the foreign entity and the U.S. petitioner, 
respectively, the petitioner's claim that employees of the foreign entity are providing services to the 
petitioner must be substantiated with evidence that such employees or their employer have been 
compensated for any services that have been rendered. 
 Here, the petitioner has provided no 
evidence to establish that 
 has been remunerated for any of the alleged services. 
While the petitioner now submits various forei 
 documents as part of Exhibit 4, claiming that these 
are invoices issued to the petitioner by 
 for services rendered, none of these documents is 
accompanied by a certified English language translation, thereby precluding the AAO fkom being 
able to determine whether the evidence supports the petitioner's claims. See 8 C.F.R. 5 103.2(b)(3). 
* It is noted that the petitioner must establish eligibility at the time of filing the nonirnrnigrant 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). The petition in this matter was filed on June 13, 2007, and the record indicates that 
the petitioner's "new employee, " was hired or contracted sometime in January 2009. 
As such, the evidence regardin 
 employment is irrelevant to these proceedings. 
WAC 07 193 55228 
Page 10 
Accordingly, the evidence is not probative and will not be accorded any weight in this proceeding. 
In light of these significant deficiencies, the petitioner should have provided mher information 
about the specific tasks the beneficiary plans to undertake in coordinating the efforts of his 
"employees," as the petitioner has not established that it employed anyone other than the beneficiary 
himself and at the time the petition was filed. It is unclear how the beneficiary would 
spend a significant amount of his time coordinating the work of a single employee. 
The lack of evidence of a support staff is equally damaging in the beneficiary's attempt to solidify 
the petitioner's European presence, which, according to the petitioner, would be accomplished with a 
marketing staff. As the petitioner has provided documentation for only one employee other than the 
beneficiary himself, it is unclear how the petitioner would be able to carry on marketing activities 
without the beneficiary's direct, hands-on involvement of operational, non-qualifymg tasks. 
The AAO is also perplexed by the beneficiary's role in formulating strategy, a responsibility to 
which the beneficiary would devote another 20% of his time. In other words, the beneficiary's actual 
tasks associated with this general job responsibility have not been defined with sufficient clarity. In 
discussing the beneficiary's role, the petitioner focused on the beneficiary's decision to concentrate 
its efforts on the manufacture and sales of a particular device known as SmartTop. However, the 
petitioner failed to state how the beneficiary arrived at this decision. The petitioner did not explain 
what factors were considered and who did the underlying research that ultimately served as the basis 
for the beneficiary's decision. The AAO does not dispute that actually having the authority to make 
the decision is characteristic of a manager or executive. However, in light of the limited staffing 
resources available at the time of filing, the AAO cannot conclude that the beneficiary's involvement 
was primarily limited to merely reviewing information and making the bottom-line decision. Rather, 
it is likely, based on the evidence of record, that the beneficiary himself provided the information in 
order to make a well-informed decision. Without evidence and a thorough explanation of the 
beneficiary's specific tasks in connection with his responsibility to formulate strategy, the AAO has 
no choice but to assume that the petitioner will have a continued need for the beneficiary's direct and 
primary involvement in carrying out the underlying non-qualifying tasks that will make any 
decision-making possible. 
Next, the AAO will point out deficiencies regarding the portion of the job description that discusses 
the beneficiary's role in planning expansion/relocation, a responsibility to which 10% of the 
beneficiary's time has been allocated. Again, the petitioner discusses the beneficiary's discretionary 
authority in being able to make the decision to relocate the petitioner in order to achieve a greater 
business objective. However, similar to the example of discretionary decision-making in connection 
with the formulation of strategy, the petitioner provides no background information that would 
reveal how the beneficiary makes these and other discretionary decisions. For example, it remains 
unexplained who researched the relocation sites; how the potential relocation sites were determined; 
who, if anyone, did the preliminary site checks before a relocation decision was made; who did the 
research concerning the petitioner's current claimed business location in California; and who 
physically moved the business and its tangible assets to California, if not the beneficiary. In other 
words, the petitioner does not explain how the beneficiary obtained the necessary information in 
' WAC 07 193 55228 
Page 11 
order to make a well-informed decision and how he would have been relieved from directly 
performing the non-qualifying duties himself. 
The petitioner then attributed 10% of the beneficiary's time to being the face of the petitioner and the 
product that the petitioner distributes and which the beneficiary himself created. In carrying out this 
responsibility, the petitioner stated that the beneficiary would appear at automobile shows and 
functions, a task that is primarily marketing and cannot be deemed a qualifying duty. 
Next, with regard to financial issues, which would consume 15% of the beneficiary's time, the 
petitioner expressly stated that the beneficiary is conducting the underlying research in seeking out 
advisors and learning about which method of finance is available. Again, this, as well as the 
preparation and provision of the financial information to the financial advisors, can only be deemed 
as part of the various operational tasks that the beneficiary must perform in light of the petitioner's 
lack of an adequate support staff. 
Lastly, the petitioner claimed that 5% of the beneficiary's time would be devoted to hiring and firing 
personnel. However, in light of the single employee at the time, whom the petitioner had employed 
since it started doing business, the petitioner has not provided evidence of any other employees 
whom the beneficiary has either hired or fired during the relevant time period. While the petitioner 
claims that a new employee has been recently hired, the record shows that this individual was not 
working for the petitioner at the time the Form 1-129 was filed. Again, it is noted that 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. 
Thus, in summarizing the beneficiary's job description, it appears that at least 65% of the 
beneficiary's claimed duties would require the petitioner to have a staff of employees, whose 
existence the petitioner has not established with the documentation presented in this proceeding. 
Another 25% of the beneficiary's time would be consumed performing tasks that cannot be deemed 
as qualifying. 
Counsel criticizes that the analysis provided in the AAO's prior decision was "poorly prepared" and 
"vague." This attempt by counsel to shift their evidentiary burden of establishing eligibility or, in 
this case, ineligibility to the AAO is without merit. It is not the government's evidentiary burden to 
prove why a beneficiary does or does not qualify. When any person makes an application for a "visa 
or any other document required for entry, or makes an application for admission [ . . . ] the burden of 
proof shall be upon such person to establish that he is eligible" for such relief. Section, 291 of the 
Act, 8 U.S.C. $ 1361; see also Matter of Treasure Craft of California, 14 I. & N. Dec. 190 (Reg. 
Comm. 1972). 
Regardless, by providing the above comprehensive analysis of the beneficiary's job description, the 
AAO has fully explained how the material provided in the present matter falls short of meeting the 
necessary requirements. Although counsel places undue emphasis on the length of the beneficiary's 
WAC 07 193 55228 
Page 12 
job description, he fails to acknowledge that it is not the length, but rather the content of the job 
description that primarily matters. Here, as discussed above, the job description provided lacks the 
necessary degree of detail in describing the beneficiary's daily activity and the series of tasks the 
beneficiary would perform on a daily basis in order to meet the desired business objectives. This has 
been and continues to be an inherent flaw in the case at hand. The other flaw, as previously 
discussed, is the petitioner's failure to establish the existence of an adequate support staff capable of 
relieving the beneficiary from having to spend the primary portion of his time performing non- 
qualifying tasks. Without these two highly crucial elements, i.e., a detailed job description and an 
existing support staff, the AAO has no basis upon which to withdraw the earlier adverse decisions 
and approve a petition that clearly does not merit approval based on the current record of 
proceeding. 
That being said, counsel argues that approval of the instant petition is consistent with the approvals 
of the petitioner's two prior Form 1-129 petitions, where the first petition, with receipt no. 
LIN0418552225, was filed for the opening of a new office and the second petition, with receipt no. 
LIN052 105 1385, was filed to extend the beneficiary's employment at the new office. However, after 
reviewing the records of proceeding associated with these previously filed petitions, the AAO finds 
that both were approved in error. 
The regulation at 8 C.F.R. 5 214.2(1)(3)(~) states that if the petition indicates that the beneficiary is 
coming to the United States as a manager or executive to open or to be employed in a new office, the 
petitioner shall submit evidence that: 
(A) 
 Sufficient physical premises to house the new office have been secured; 
(B) 
 The beneficiary has been employed for one continuous year in the three year 
period preceding the filing of the petition in an executive or managerial 
capacity and that the proposed employment involved executive or managerial 
authority over the new operation; and 
(C) 
 The intended United States operation, within one year of the approval of the 
petition, will support an executive or managerial position as defined in 
paragraphs (l)(l)(ii)(B) or (C) of this section, supported by information 
regarding: 
(I) 
 The proposed nature of the office describing the scope of the entity, its 
organizational structure, and its financial goals; 
(2) 
 The size of the United States investment and the financial ability of the 
foreign entity to remunerate the beneficiary and to commence doing 
business in the United States; and 
(3) 
 The organizational structure of the foreign entity. 
WAC 07 193 55228 
Page 13 
In the present matter, the petitioner provided a letter dated June 7, 2004 in support of the new office 
petition. With regard to the beneficiary's employment abroad, the petitioner stated that the 
beneficiary assumed a leadership role wherein he motivated the foreign staff; formed business 
relationships; maintained the foreign entity's business model and recruited staff; administered affairs 
of his position as the chairman of the board and managed funds, investments and distributions; 
supervised staff and was in charge of hiring and firing staff members; developed the company's 
products; and was responsible for the company's profits and losses. The AAO finds this job 
description to be deficient, lacking sufficient detail and failing to convey a meaningful understanding 
of the beneficiary's daily tasks. At the very least, the director should have addressed this deficiency 
by requesting a more detailed description of the beneficiary's employment abroad. However, the 
RFE that was issued on June 18, 2004 generally instructed the petitioner to provide information 
regarding the foreign entity's organizational structure to include the number of employees and their 
respective job duties. The director made no specific mention of the deficient description of the 
beneficiary's foreign employment. As the director subsequently approved the petition, he did so 
without having sufficient information about the job duties the beneficiary performed during his 
employment abroad. As such, the AAO finds material or gross error in the approval of the initial 
new office petition, as the record lacks sufficient evidence to establish that the petitioner satisfied the 
requirement described in 8 C.F.R. 8 214.2(1)(3)(v)(B). 
With regard to the second Form 1-129 filed by the petitioner (receipt no. LIN052105 1385), the 
petitioner submitted a letter dated June 26, 2005, which did not contain a description of the 
beneficiary's foreign employment. Although this information is not among the requirements listed in 
8 C.F.R. 214.2(1)(14)(ii), which applies to new office petitioners seeking to extend their visa 
petitions, the provisions of 8 C.F.R. 8 214.2(1)(3) are still applicable in the present matter, as they 
apply to any individual petition filed on Form 1-129. Specifically, 8 C.F.R. 5 214.2(1)(3)(iv) states 
that any petitioner filing a Form 1-129 must provide evidence establishing that the beneficiary was 
employed abroad for the requisite time period in a qualifying managerial or executive capacity. 
Here, the petitioner did not provide any information about the beneficiary's foreign employment 
when the petition was initially filed, nor was this issue addressed in the director's WE, which was 
issued on August 5, 2005. Keeping in mind that the first and second petitions are contained in 
separate records of proceeding, even if the petitioner had previously established the beneficiary's 
qualimng employment when it filed the first Form 1-129, it is nevertheless under a separate burden 
to provide this evidence when filing another petition. Here, the petitioner failed to submit evidence 
establishing beneficiary's qualifying employment abroad. Therefore, at the very least, the petition 
should have been denied on this basis. 
Additionally, with regard to the beneficiary's proposed employment with the U.S. entity, the 
petitioner, through counsel, provided the same deficient job description as the one provided in 
support of the petitioner's most recently filed Form 1-129. Counsel was apparently aware of the 
importance of having a support staff, as he submitted a letter dated September 20, 2005 in which he 
claimed that the petitioner "has sufficient qualified employees to discharge the operational function 
of the [pletitioner." However, without documentary evidence to support the claim, the assertions of 
WAC 07 193 55228 
Page 14 
counsel will not satisfy the petitioner's burden of proof. The unsupported assertions of counsel do 
not constitute evidence. Matter of Obaigbena, 19 I&N Dec. 533, 534 (BIA 1988); Matter of 
Laureano, 19 I&N Dec. 1 (BIA 1983); Matter of Ramirez-Sanchez, 17 I&N Dec. at 506. The 
petitioner did not provide evidence of the staff to which counsel referred. Therefore, the petitioner 
had not established its ability to relieve the beneficiary fi-om having to primarily perform its daily 
operational tasks. Accordingly, the AAO again finds material or gross error in the approval of the 
Form I- 129 with receipt no. LIN052 105 1385 on the basis of this additional finding. 
In light of the above discussion, the AAO also reasserts and affirms the additional ground for denial 
that was stated in the initial decision dated August 1, 2008. Specifically, the AAO found in its prior 
decision that the petitioner failed to establish the beneficiary's employment abroad was in a 
managerial or executive capacity. Although No. 1 of the AAO's February 25, 2009 RFE expressly 
recommended that the petitioner review the August 1, 2008 decision and allowed the petitioner the 
opportunity to submit any additional evidence that may establish eligibility, the petitioner did not 
address the issue of the beneficiary's employment abroad. Therefore, the petitioner has not 
overcome the AAO's finding that the petitioner failed to establish that the beneficiary was employed 
abroad in a qualifying managerial or executive capacity. 
Beyond the decision of the director and the AAO's prior decision, it is noted that the evidence 
submitted by the petitioner regarding its claimed California business premises is unacceptable to 
establish that the petitioner continues to maintain sufficient physical premises to support the claimed 
business operation of the petitioner. See 8 C.F.R. 8 214.2(1)(3)(v)(A). While this regulatory 
requirement appears only in the new office petition requirements, the clear implication is that a 
petitioner will continue to maintain sufficient physical premises during the entire period the 
beneficiary will be employed in the United States in L-1A nonimmigrant status. See id.; see also 8 
C.F.R. $9 2 14.2(1)(7)(C); 2 14.2(1)(9)(iii); and 2 14.2(1)(14)(ii). 
Here, the claimed "Lease of the Petitioner's Premises" that was submitted in response to the AAO's 
~eb*ary 25,2009 RFE is a residential lease between the landlords, 
 and 'and the 
tenants, the beneficiary and for the "sole use as a personal residence." There is no 
indication in the record that a home office or business operation is permitted by either the lease or by 
local zoning laws. 
 Moreover. the lease restricts this sole use as a ~ersonal residence to the 
beneficiary&d , with no mention of the petitioner. ~hild '." was 
handwritten into the lease at the top of the document on the "Tenant" line, no initials appear beside 
this handwritten changeladdition to the document in recognition of this change and, more 
importantly, the petitioner is not included in the tenant's signature section of the lease. As it 
therefore appears this document may have been altered to make it look as if the petitioner was a 
party to this residential lease, the AAO will reject this claimed fact of the petitioner. In addition, 
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). The petitioner has therefore failed to establish that it is 
maintaining sufficient physical premises in the United States, and the petition must be denied on this 
additional basis. 
WAC 07 193 55228 
Page 15 
As stated in the AAO's prior decision, an application or petition that fails to comply with the 
technical requirements of the law may be denied by the AAO even if the Service Center does not 
identify all of the grounds for denial in the initial decision. See Spencer Enterprises, Inc. v. United 
States, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 2001), afd, 345 F.3d 683 (9th Cir. 2003); see also 
Dor v. INS, 891 F.2d 997, 1002 n. 9 (2d Cir. 1989) (noting that the AAO reviews appeals on a de 
novo basis). 
The petition will be denied for the above stated reasons, with each considered as an independent and 
alternative basis for denial. When the AAO denies a petition on multiple alternative grounds, a 
plaintiff can succeed on a challenge only if it is shown that the AAO abused its discretion with 
respect to all of the AAO's enumerated grounds. See Spencer Enterprises, Inc., 229 F. Supp. 2d at 
1043. 
In visa petition proceedings, the burden of proving eligibility for the benefit sought remains entirely 
with the petitioner. 8 U.S.C. $ 1361. Here, that burden has not been met. Accordingly, the AAO 
affirms its prior decision dismissing the petitioner's appeal. 
ORDER: The appeal is dismissed.