dismissed L-1A Case: Automotive Sales

U.S. Department of Homeland Security 
20 Mass. Ave., N.W ., Rm. A3042 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
PETITION: Petition for a Nonirnrnigrant Worker Pursuant to Section 101(a)(15)(L) of the 
Immigration and Nationality Act, 8 U.S.C. 5 1101(a)(15)(L) 
ON 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. 
M , Robert P. Wiemann, Director 
b 
Administrative Appeals Office 
DISCUSSION: The nonimmigrant visa petition was denied by the Director, Texas Service 
Center, and is now before the Administrative Appeals Office (AAO) on appeal. The appeal will 
be dismissed. 
The petitioner,, endeavors to classify the beneficiary as a 
nonimmigrant manager or executive pursuant to section 101(a)(15)(L) of the Immigration and 
Nationality Act (the Act), 8 U.S.C. 8 1101(a)(15)(L). The petitioner claims to be an affiliate of 
- located in Egypt. The petitioner is engaged in the used car sales and 
services business. The initial petition was approved to allow the petitioner to open a new office. It 
seeks to extend the petition's validity and the beneficiary's stay for three years as the U.S. entity's 
president. The petitioner was incorporated in the State of Louisiana on June 18, 2001 and claims 
to have seven employees. 
On January 27, 2003, the director denied the petition and determined that the petitioner had not 
established that the beneficiary will be primarily performing duties in an executive or managerial 
capacity. 
On appeal, the petitioner's counsel states that the beneficiary is "employed in a managerial andlor 
executive capacity." 
To establish L-1 eligibility under section 101(a)(15)(L) of the Act, the petitioner must meet 
certain criteria. Specifically, within three years preceding the beneficiary's application for 
admission into the United States, 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. Furthermore, the beneficiary must seek to enter the United States temporarily to 
continue rendering his or her services to the same employer or a subsidiary or affiliate thereof in a 
managerial, executive, or specialized knowledge capacity. 
In relevant part, the regulations at 8 C.F.R. 9 214.2(1)(3) state that an individual petition filed on 
Form I- 129 shall be accompanied by: 
(i) Evidence that the petitioner and the organization which employed or will 
employ the alien are qualifying organizations as defined in paragraph (I)(l)(ii)(G) of this 
section. 
(ii) Evidence that the alien will be employed in an executive, managerial, or 
specialized knowledge capacity, including a detailed description of the services to be 
performed. 
Further, the regulations at 8 C.F.R. 214.2(1)(14)(ii) require that a visa petition under section 
101(a)(15)(L) of the Act which involved the opening of a new office may be extended by filing a 
new Form 1-129, accompanied by the following: 
(A) Evidence that the United States and foreign entities are still qualifying 
organizations as defined in paragraph (I)(l)(ii)(G) of this section; 
(B) Evidence that the United States entity has been doing business as defined in 
paragraph (l)(l)(ii)(H) of this section for the previous year; 
(C) A statement of the duties performed by the beneficiary for the previous year 
and the duties the beneficiary will perform under the extended petition; 
(D) A statement describing the staffing of the new operation, including the 
number of employees and types of positions held accompanied by evidence of wages 
paid to employees when the beneficiary will be employed in a managerial or 
executive capacity; and 
(E) Evidence of the financial status of the United States operation. 
The issue in this proceeding is whether the beneficiary will be primarily performing managerial 
or executive duties for the United States entity. Section 101(a)(44)(A) of the Act, 8 U.S.C. 
§ 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)(@)(B) of the Act, 8 U.S.C. 5 1 lOl(a)(@)(B), provides: 
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. 
On December 11, 2002, the petitioner filed Form 1-129. In a December 2, 2002 supporting letter 
signed by the beneficiary, the beneficiary's duties are described as: 
[Dlirect the management of the entire organization which will include 
supervising the work of all other employees. [Aluthority over all personnel 
actions, including hiring and firing employees. [Elxercise discretion over the 
day-today operations of the entire organization and establish the goals and 
policies of the organization. [Aluthority to exercise wide latitude in discretionary 
decision-making. 
On January 10, 2003, the director requested additional evidence. In particular, the director 
requested a list of all the U.S. entity's employees, their job titles, and their job responsibilities. 
The director also requested evidence of the petitioner's payroll and tax payments. 
In response to the request for additional evidence, the petitioner submitted a description of the 
beneficiary's subordinates' duties, the U.S. entity's organizational chart, and a copy of the 
petitioner's 2001 U.S. Corporation Short-Form Income Tax Return. The beneficiary's 
subordinates were identified as a mechanic, sales man and office clerk, two painters, and three 
body men. The petitioner submitted copies of Form W-2, Wage and Tax Statement as evidence of 
wages paid to eight employees in 2002. Four of the employees, the mechanic, a painter, and two 
body men, received wages of less than $500 for the year. In addition the petitioner further 
described the beneficiary's duties as: 
[The beneficiary] serves as manager of both divisions. He has the authority to 
make all personnel decisions including the hiring and firing of the automotive 
maintenance and sales staff, and he exercises discretion over the day-today 
operations of the both divisions such as directing and coordinating activities 
relating to the acquisition of automobiles and automotive equipment. 
As President and co-owner of a small company, [the beneficiary], also performs 
the duties of an executive. [The beneficiary] establishes the goals and policies of 
the company by analyzing financial and sales data for determinations of resource 
allocation and expansion and by reviewing and assessing other investment 
expansion opportunities. He has the authority to exercise wide latitude in these 
and other discretionary decision-making areas, and receives little if any direction 
from the other co-owner. [The beneficiary] is able to spend a majority of his time 
performing these operational responsibilities because of the staff he has 
assembled. 
On January 27, 2003, the director denied the petition. The director determined that the petitioner 
had not established that the beneficiary will be primarily performing duties in a managerial or 
executive capacity. The director found that the beneficiary is "not managing persons employed in 
a professional capacity" and that "he will be engaged in the day-to-day operations of the 
business." 
On appeal, counsel states that the beneficiary is "employed in a managerial and/or executive 
capacity," that his job duties "fall directly in line with the definition of an executive," and that he 
"manages an essential function within the organization." Counsel also claims that the beneficiary 
manages a managerial employee and asserts that the fact that he doesn't manage professional 
employees does not disqualify him from being classified as a manager or executive. 
In examining the executive or managerial capacity of the beneficiary, the AAO will look to the 
description of the beneficiary's U.S. job duties to determine whether the beneficiary is primarily 
acting in a managerial or executive capacity. See 8 C.F.R. 8 214.2(1)(3)(ii). In this matter, the 
petitioner does not clarify whether the beneficiary is claiming to be primarily engaged in 
managerial duties under section 101(a)(44)(A) of the Act, or primarily executive duties under 
section 101(a)(44)(B) of the Act. A beneficiary may not claim to be employed as a hybrid 
"executive/manager" and rely on partial sections of the two statutory definitions. A petitioner 
must establish that a beneficiary meets each of the four criteria set forth in the statutory definition 
for executive and the statutory definition for manager if it is representing that the beneficiary is 
both an executive and a manager. 
On review, the petitioner failed to establish that the beneficiary will be employed in a primarily 
managerial or executive capacity. The petitioner has provided a vague and nonspecific 
description of the beneficiary's duties that fails to establish what the beneficiary does on a day-to- 
day basis. For example, the petitioner states that the beneficiary's duties include "exercis[ing] 
discretion over the day-to-day operations of the entire organization" and "establish[ing] the goals 
and policies of the organization." However, these duties are generalities that fail to enumerate 
any concrete goals or policies that the beneficiary will establish or how the beneficiary will 
exercise discretion. 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 Crafi of California, 14 I&N Dec. 190 (Reg. 
Comm. 1972)). 
Further, the petitioner generally paraphrased the statutory definition of executive capacity. See 
section 101(a)(44)(B) of the Act, 8 U.S.C. 1101(a)(44)(B). For instance, the petitioner depicted 
the beneficiary as having the "authority to exercise wide latitude in discretionary decision- 
making." However, conclusory assertions regarding the beneficiary's employment capacity are 
not sufficient. Merely repeating the language of the statute or regulations does not satisfy the 
petitioner's burden of proof. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1 103, 1 108 (E.D.N.Y. 
1989), aff'd, 905 F. 2d 41 (2d. Cir. 1990); Avyr Associates Inc. v. Meissner, 1997 WL 188942 at 
*5 (S.D.N.Y.). 
In addition, the petitioner claims the beneficiary's U.S. duties include tasks such as "analyzing 
financial and sales data." However, the record does not indicate who actually prepares the sales 
and financial data. Therefore, although the beneficiary claims to analyze this data, it must be 
evident from the record that the beneficiary does not perform the tasks that he has been assigned 
to analyze or oversee. An employee who primarily performs the tasks necessary to produce a 
product or to provide services is not considered to be employed in a managerial or executive 
capacity. Matter of Church Scientology International, 19 I&N Dec. 593,604 (Cornrn. 1988). 
Moreover, the record does not sufficiently demonstrate that the beneficiary will manage a 
subordinate staff of professional, managerial, or supervisory personnel. On appeal, counsel claims 
that the director erred by claiming that "because [the beneficiary1 is not managing persons 
employed in a professional capacity he must be engaged in the day-to-day operations of the 
business." Counsel states that the beneficiary "is not managing professional employees, the 
beneficiary is managing a managerial employee." The U.S. organizational chart indicates that the 
beneficiary is in charge of a mechanic and a salesman/office clerk. The mechanic has two painters 
and three body men under his supervision. Counsel in his January 20, 2003 letter claims that the 
mechanic "runs the service division" and is "the first-line supervisor." However, counsel also 
claims that the mechanic is "responsible for the general repairs of the automobiles" and that 
"several other employees assist [the mechanic], depending on the type and volume of work 
needed." This description indicates that the mechanic is not acting as a first-line supervisory 
employee but rather working in conjunction with the painters and body men on repairing 
automobiles. Furthermore, the employee identified as the mechanic received only $350 in wages 
in 2002, significantly less than some of the employees he purportedly supervises. Overall, the 
evidelice raises questions regarding the mechanic's supervisory authority and his actual 
contributions to the organization. Therefore, the beneficiary, at most, would be acting as a first- 
line supervisor. A managerial or executive employee must have authority over day-today 
operations beyond the level normally vested in a first-line supervisor, unless the supervised 
employees are professionals. See Matter of Church Scientology International, 19 I&N Dec. 593, 
604 (Cornm. 1988). Counsel concedes that none of the beneficiary's subordinates are 
professionals. 
Additionally, counsel claims, "[Elven if [the beneficiary] was not supervising a managerial 
employee, he still manages both divisions [service and sales divisions] of the organization so 
again, the provision of a first line supervisor does not apply to him because he manages an 
essential function within the organization." The term "function manager" applies generally when 
a beneficiary does not supervise or control the work of a subordinate staff but instead is primarily 
responsible for managing an "essential function" within the organization. See section 
101(a)(44)(A)(ii) of the Act. If a petitioner claims that the beneficiary is managing an essential 
function, the petitioner must identify the function with specificity, articulate the essential nature 
of the function, and establish the proportion of the beneficiary's daily duties attributed to 
managing the essential function. In addition, the petitioner must provide a comprehensive and 
detailed description of the beneficiary's daily duties demonstrating that the beneficiary manages 
the function rather than performs the duties relating to the function. In the instant matter, it is 
unclear what the beneficiary's vital function is other than that the petitioner claims he will 
manage the sales and service divisions of the company. However, to allow the broad apptication 
of the tenn "essential function" to include such broad claims, without identifying a specific 
function, would render the term meaningless. Without documentary evidence to support the 
claim, the assertions of counsel will not satisfy the petitioner's burden of proof. The assertions of 
counsel do not constitute evidence. Matter of Obaigbena, 19 I&N Dec. 533, 534 (BIA 1988); 
Matter Of Luureano, 19 I&N Dec. 1 (BIA 1983); Matter of Ramirez-Sanchez, 17 I&N Dec. 503, 
506 (BIA 1980). 
Moreover, counsel claims that the director failed to take into account the reasonable needs of the 
organization. Pursuant to section 101(a)(44)(C) of the Act, 8 U.S.C. $ I IOl(a)(44)(C), if staffing 
levels are used as a factor in determining whether an individual is acting in a managerial or 
executive capacity, CIS must take into account the reasonable needs of the organization, in light 
of the overall purpose and stage of development of the organization. In the present matter, 
however, the regulations provide strict evidentiary requirements for the extension of a "new 
office" petition and require CIS to examine the organizational structure and staffing levels of the 
petitioner. See 8 C.F.R. $ 214.2(1)(14)(ii)(D). The regulation at 8 C.F.R. 3 214.2(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 CIS regulations that aaIlows 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. Based on the wages paid to the petitioner's 
claimed employees, the U.S. company appears to have only two full-time employees which are 
the beneficiary and the salesman. Therefore, if the beneficiary and the salesman are the only full- 
time employees working for the company, the AAO is not persuaded that the beneficiary does not 
primarily perform nonqualifying duties for the company. Thus, the petitioner has not reached the 
point that it can employ the beneficiary in a predominantly managerial or executive position. 
Finally, 8 C.F.R. 5 214.2(1)(3)(v)(C) allows the intended United States operation one year within 
the date of approval of the petition to support an executive or managerial position. At the time of 
filing, the petitioner had not reached the point that it can employ the beneficiary in a 
predominantly managerial or executive position. After careful consideration of the evidence, the 
AAO must conclude that the beneficiary will not be employed in a primarily managerial or 
executive capacity. For this reason, the petition may not be approved. 
Another issue in this proceeding, not raised by the director, is whether the petitioner has 
established that a qualifying relationship exists between the petitioning entity and a foreign entity 
pursuant to 8 C.F.R. 9 214.2(1)(l)(ii)(G). The petitioner claims that it is an 
entity and that both companies are owned and controlled by the beneficiary an 
Attia in the same proportions." As evidence of the U.S. entity's 
provided a copy of the minutes of the first meeting of the board of directors dated June 14, 2001. 
indicating that 500 shares of stock were issued to each of the above-named individuals. The only 
documentation provided regarding the ownership of the foreign company is a copy of the - - - -. 
Egyptian Ministry of Trade and Supplies, on which the 
beneficiary a re named as partners. These documents are insufficient to 
ownership and control by the same two individuals in 
equal proportions. 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. 
158, 165 (Cornm. 1998) (citing Matter of Treasure Crafr of California, 14 I&N Dec. 190 (Reg. 
Comm. 1972)). Furthermore, the petitioner's 2001 Form 1120-A, U.S. Corporation Short-Form 
Income Tax Return and 2001 Louisiana Income Tax Return indicate that the beneficiary owns 
100 percent of the petitioner's stock. 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 Iies. Matter of No. 19 I&N Dec. 582,591-92 (BIA 1988). In 
addition, the petitioner submitted no evidence to establish that the foreign entity will continue to 
do business during the beneficiary's stay in the United States. Based on the above, the petitioner 
has not established that it maintains a qualifying relationship with the foreign entity. For this 
additional reason, the appeal will be dismissed. 
In addition. the petitioner indicates that the beneficiary is the sole owner of both companies. If 
this fact is established, it remains to be determined that the beneficiary's services are for a 
temporary period. The regulation at 8 C.F.R. 3 214.2(1)(3)(vii) states that if the beneficiary is an 
owner or major stockholder of the company, the petition must be accompanied by evidence that 
the beneficiary's services are to be used for a temporary period and that the beneficiary will be 
transferred to an assignment abroad upon the completion of the temporary services in the United 
States. In the absence of persuasive evidence, it cannot be concluded that the beneficiary's 
services are to be used temporarily or that he will be transferred to an assignment abroad upon 
completion of his services in the United States. 
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). For this additional 
reason, the petition may not be approved. 
In visa petition proceedings, the burden of proving eligibility for the benefit sought remains 
entirely with the petitioner. Section 291 of the Act, 8 U.S.C. 3 1361. Here, that burden has not 
been met. Accordingly. the appeal will be dismissed. 
ORDER: The appeal is dismissed.