dismissed L-1A Case: Boat Rentals

U.S. Department of Homeland Security 
20 Massachusetts Ave , N.W., Rm A3000 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
File: SRC 05 196 50922 Office: TEXAS SERVICE CENTER Date: DEC 0 5 2006 
Petition: 
 Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(15)(L) of the Immigration 
and Nationality Act, 8 U.S.C. rj 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 inquu-y must be made to that office. 
Administrative Appeals Office 
SRC 05 196 50922 
Page 2 
DISCUSSION: The Director, Texas Service Center, denied the petition for a nonimmigrant visa. The matter 
is now before the Administrative Appeals Office (AAO) on appeal. The AAO will dismiss the appeal. 
The petitioner filed this nonimmigrant visa petition seeking to extend the employment of its president as an L- 
1A nonimmigrant intracompany transferee pursuant to section IOl(a)(lS)(L) of the Immigration and 
Nationality Act (the Act), 8 U.S.C. 8 1 IOI(a)(15)(L). The petitioner is a corporation organized under the laws 
of the State of Florida and is engaged in the business of boat rentals and charters. The petitioner claims a 
qualifying relationship with Lybra, CV of Belgium. The beneficiary was initially granted a one-year period 
of stay to open a new office m the United States, and the petitioner now seeks to extend the beneficiary's stay 
for three years. 
The director denied the petition concluding that the petitioner did not establish that the beneficiary will be 
employed in the United States in a primarily executive capacity. 
The petitioner subsequently filed an appeal. The director declined to treat the appeal as a motion and 
forwarded the appeal to the AAO for review. On appeal, the petitioner asserts that the director erred in 
concluding that the beneficiary will not be employed primarily in an executive capacity because he will not be 
supervising a subordinate staff of professionals or managers. The petitioner asserts that the beneficiary will 
engage in executive activities and that it need not be established that an executive will manage professional 
employees. 
To establish eligibility for the L-1 nonimmigrant visa classification, the petitioner must meet the criteria 
outlined in section 101(a)(15)(L) of the Act. Specifically, a qualifying organization must have employed the 
beneficiary in a qualifying managerial or executive capacity, or in a specialized knowledge capacity, for one 
continuous year within three years preceding the beneficiary's application for admission into the United 
States. In addition, the beneficiary must seek to enter the United States temporarily to continue rendering his 
or her services to the same employer or a subsidiary or affiliate thereof in a managerial, executive, or 
specialized knowledge capacity. 
The regulation at 8 C.F.R. 3 214.2(1)(3) states that an individual petition filed on Form 1-129 shall be 
accompanied by: 
(i) 
 Evidence that the petitioner and the organization which employed or will employ the 
alien are qualifying organizations as defined in paragraph (l)(l)(ii)(G) of this section. 
(ii) 
 Evidence that the alien will be employed in an executive, managerial, or specialized 
knowledge capacity, including a detailed description of the services to be performed. 
(iii) 
 Evidence that the alien has at least one continuous year of full time employment 
abroad with a qualifying organization within the three years preceding the filing of 
the petition. 
(iv) 
 Evidence that the alien's prior year of employment abroad was in a position that was 
managerial, executive or involved specialized knowledge and that the alien's prior 
SRC 05 196 50922 
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education, training, and employment qualifies hider to perform the intended 
services in the United States; however, the work in the United States need not be the 
same work which the alien performed abroad. 
The regulation at 8 C.F.R. 5 214.2(1)(14)(ii) also provides that a visa petition, which involved the opening of a 
new office, may be extended by filing a new Form 1-129, accompanied by the following: 
(A) 
 Evidence that the United States and foreign entities are still qualifying 
organizations as defined in paragraph (l)(l)(ii)(G) of ths 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 primary issue in the present matter is whether the beneficiary will be employed by the United States 
entity in a primarily executive capacity. 
Section 101(a)(44)(B) of the Act, 8 U.S.C. 5 1 IOl(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 makmg; and 
(iv) 
 receives only general supervision or direction from higher level executives, the board 
of directors, or stockholders of the organization. 
The petitioner does not clarify in the initial petition 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. However, on appeal, the 
petitioner clearly indicates that it is seeking to classify the beneficiary as an executive employee. Therefore, 
SRC 05 196 50922 
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the AAO will limit its consideration of this appeal to this classification. 
The petitioner does not provide a description of the beneficiary's duties in the initial petition. The petitioner 
states only that the beneficiary "has commenced operations of our boat and charter business in the past year" 
and indicates its intention of expanding its operations. 
On July 13, 2005, the director requested additional evidence. The director requested, inter alia, evidence 
establishing that the beneficiary will be employed in a managerial or executive capacity. 
On July 14,2005, the petitioner responded to the Request for Evidence. The petitioner provided a letter dated 
July 14,2004 in which it describes the beneficiary's duties as follows: 
[The beneficiary's] position encompasses complete management authority over all aspects of 
[the petitioner], including but not limited to hiring and firing of employees, equipment 
purchases, day to day management of employees and most recently, efforts to establish a 
private boat club at ow facilities here in Marathon and two future locations in Key West and 
Islamorada, Florida. 
The petitioner also explained that it employs a dive instructor, a clerical employee, and a maintenance worker, 
who are apparently supervised by the beneficiary. 
On July 28, 2005, the director denied the petition. The director concluded that the petitioner failed to 
establish that the beneficiary will be employed primarily in an executive capacity. The director stated: 
In order to qualify for an L-IA visa after the organization becomes operational, the petitioner 
must establish the need for an executive. The record does not support a finding that the 
petitioner will be supervising a subordinate staff of professionals, or managers. It has been 
determined based on the totality of the evidence the beneficiary will not primarily be engaged 
in executive duties. The duties of the beneficiary were general in nature and did not establish 
the beneficiary is primarily engaged in executive duties. 
On appeal, the petitioner asserts that the director erred in concluding that the beneficiary will not be employed 
primarily in an executive capacity because he will not be supervising a subordinate staff of professionals or 
managers. The petitioner asserts that the beneficiary will engage in executive activities and that it need not be 
established that an executive will manage professional employees. 
Upon review, the petitioner's assertions are not persuasive. 
Title 8 C.F.R. fj 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 Citizenship and 
Immigration Services (CIS) regulations that allows for an extension of this one-year period. If the business 
does not have sufficient staffing after one year to relieve the beneficiary fi-om primarily performing 
operational and administrative tasks, the petitioner is ineligible by regulation for an extension. In the instant 
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matter, the United States operation has not reached the point that it can employ the beneficiary in a 
predominantly managerial or executive position. 
When examining the executive or managerial capacity of the beneficiary, the AAO will look first to the 
petitioner's description of the job duties. See 8 C.F.R. $ 214.2(1)(3)(ii). The petitioner's description of the job 
duties must clearly describe the duties to be performed by the beneficiary and indicate whether such duties are 
either in an executive or managerial capacity. Id. 
The petitioner has failed to prove that the beneficiary will act in an "executive" capacity. The statutory 
definition of the term "executive capacity" focuses on a person's elevated position within a complex 
organizational hierarchy, including major components or functions of the organization, and that person's 
authority to direct the organization. Section 101(a)(44)(B) of the Act. Under the statute, a beneficiary must 
have the ability to "direct the management" and "establish the goals and policies" of that organization. 
Inherent to the definition, the organization must have a subordinate level of employees for the beneficiary to 
direct, and the beneficiary must primarily focus on the broad goals and policies of the organization rather than 
the day-to-day operations of the enterprise. Individuals will not be deemed executives under the statute 
simply because they have executive titles or because they "direct" the enterprise as the owners or sole 
managerial employees. The beneficiary must also exercise "wide latitude in discretionary decision malung" 
and receive only "general supervision or direction from higher level executives, the board of directors, or 
stockholders of the organization." Id. 
In this matter, the petitioner has provided a vague and nonspecific job description of the beneficiary's duties 
that fails to demonstrate what the beneficiary does on a day-to-day basis. For example, while the petitioner 
lists "equipment purchases" and establishing a private boat club as two of the beneficiary's duties, the 
petitioner does not explain what, exactly, the beneficiary must do on a day-to-day basis with regard to these 
duties or, equally important, who performs the non-qualifying tasks inherent in these duties. It is essential 
that the petitioner specifically define the beneficiary's duties and provide a breakdown of how much is spent 
by him performing such non-qualifying tasks; otherwise, it cannot be concluded that the beneficiary is 
"primarily" employed in a managerial capacity. An employee who "primarily" performs the tasks necessary 
to produce a product or to provide services is not considered to be "primarily" employed in a managerial or 
executive capacity. See sections 101(a)(44)(A) and (B) of the Act (requiring that one "primarily" perform the 
enumerated managerial or executive duties); see also Matter of Church Scientology International, 19 I&N 
Dec. 593,604 (Comm. 1988). Going on record without supporting documentary evidence is not sufficient for 
purposes of meeting the burden of proof in these proceedings. Matter of Treasure Craft of California, 14 
I&N Dec. 190 (Reg. Comm. 1972). Specifics are clearly an important indication of whether a beneficiary's 
duties are primarily executive or managerial in nature; otherwise meeting the definitions would simply be a 
matter of reiterating the regulations. Fedin Bros. Co., Ltd. v. Suva, 724 F. Supp. 1103 (E.D.N.Y. 1989), am, 
905 F.2d 41 (2d. Cir. 1990). 
The remaining duties listed for the beneficiary involve the management of the three non-professional, non- 
supervisory employees. An executive employee must have authority over day-to-day operations beyond the 
level normally vested in a first-line supervisor. See Matter of Church Scientology International, 19 I&N Dec. 
at 604. Therefore, these duties may not be used to classify the beneficiary as an executive. 
SRC 05 196 50922 
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While the petitioner is correct that it need not establish that the beneficiary will supervise and control the 
work of other supervisory, professional, or managerial employees in order to classify him as an executive, the 
petitioner must still establish that the beneficiary will be primarily employed as an executive. While the 
director's decision is not entirely clear, to the extent the director determined that the petitioner failed to 
establish that the beneficiary will be primarily engaged in performing executive duties for failure to prove that 
he will manage a subordinate staff of professionals or managers, that determination is hereby withdrawn. 
However, as indicated above, the appeal will be dismissed as the petitioner otherwise failed to establish that 
the beneficiary will be primarily engaged in performing executive duties. As the supervision of non- 
supervisory or non-professional employees is not a duty which could qualify the beneficiary as an executive, 
the petitioner's listing of these duties for the beneficiary may not result in his classification as an executive 
unless it can be demonstrated that he is otherwise primarily performing executive duties. In this matter, the 
petitioner has not established that the petitioner is primarily perfonning executive duties since the job 
description lists either non-qualifying executive duties, i.e., acting as a first-line supervisor, or vaguely 
described duties, which may or may not be qualifying.' 
It is appropriate for CIS to consider the size of the petitioning company in conjunction with other relevant 
factors, such as a company's small personnel size, the absence of employees who would perform the non- 
managerial or non-executive operations of the company, or a "shell company" that does not conduct business 
in a regular and continuous manner. See, e.g. Systronics Corp. v. INS, 153 F. Supp. 2d 7, 15 (D.D.C. 2001). 
Accordingly, the petitioner has not established that the beneficiary will be primarily engaged in performing 
executive duties, and the petition may not be approved for that reason. 
Beyond the decision of the director, an additional issue in this proceeding is whether the petitioner has 
established that a qualifying relationship exists between the petitioning entity and a foreign entity. The 
regulation at 8 C.F.R. 214.2(1)(14)(ii)(A) states that a petition to extend a "new office" petition filed on 
Form 1-129 shall be accompanied by: 
(A) 
 Evidence that the United States and the foreign entity are still qualifying 
organizations as defined in paragraph (l)(l)(ii)(G) of this section[.] 
Title 8 C.F.R. 9 214.2(i)(l)(ii)(G) defines a "qualifying organization" as a firm, corporation, or other legal 
entity which "meets exactly one of the qualifying relationships specified in the defmitions of a parent, branch, 
affiliate or subsidiary specified in paragraph (l)(l)(ii) of this section" and "is or will be doing business." 
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 
'As indicated above, while the petitioner appears not to be claiming that the beneficiary may be classified as a 
manager, the record would nevertheless fail to support this assertion. The AAO concludes, beyond the 
decision of the director, that the petitioner has not established that the beneficiary will be primarily employed 
as a manager for the same reasons articulated above. 
SRC 05 196 50922 
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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 w~th 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. 
In this matter, the petitioner has offered no evidence of a qualifying relationship with the foreign entity. 
Beyond an uncorroborated claim on the supplement to the Form 1-129, the petitioner has not established who, 
exactly, owns or controls the United States operation. Accordingly, for this additional reason, the petition 
may not be approved. 
The initial approval of an L-IA new office petition does not preclude CIS from denying an extension of the 
original visa based on a reassessment of petitioner's qualifications. Texas A&M Univ., 99 Fed. Appx. 556, 
2004 WL 1240482 (5th Cir. 2004). Despite any number of previously approved petitions, CIS does not have 
any authority to confer an immigration benefit when the petitioner fails to meet its burden of proof in a 
subsequent petition. See section 291 of the Act, 8 U.S.C. 5 1361. 
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), afyd, 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. Section 291 of the Act. Here, that burden has not been met. Accordingly, the appeal will be 
dismissed. 
ORDER: The appeal is dismissed.