dismissed L-1A Case: Business Consulting

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PUBLIC COPY 
U.S. Depurtment of Homeland Security 
20 Massachusctts Avc., N.W., Rm. A3042 
Washington. DC 20529 
U. S. Citizenship 
and Immigration 
FILE: WAC 03 139 5 1 192 Office: CALLFORNIA SERVICE CENTER Date: JUN 2 8 2005 
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 10 I (a)(lS)(L) of the Immigration 
and Nationality Act, 8 U.S.C. 4 1 101 (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. 
Robert P. Wiemann, Director 
Administrative Appeals Office 
b 
WAC 03 139 51192 
Page 2 
DISCIJSSION: The nonimmigrant visa petition was denied by the Director, California Service Center. The 
matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. 
According to the documentary evidence contained in the record, the petitioner was established in 2001 and 
claims to be in the business of "helping Japanese companies and individuals enter the U.S. market." The 
petitioner claims to be a subsidiary of th- located in Kyoto, Japan. It declares one employee 
and gross sales of $50,000.00. The petitioner seeks to extend its authorization to employ the beneficiary 
temporarily in the United States as president and chief executive officer for five years, at an annual salary of 
$48,000.00. The director determined that the petitioner had failed to submit sufficient evidence to establish 
that the beneficiary would be employed by the U.S. entity primarily in a managerial or executive capacity. 
On appeal, counsel disagrees with the director's decision and asserts that the evidence is sufficient to establish 
that the beneficiary will be employed primarily in a managerial or executive capacity. 
To establish L-l eligibility under section 101(a)(15)(L) of the Immigration and Nationality Act (the Act), 
8 U.S.C. 9 I lOl(a)(lS)(L), the petitioner must demonstrate that the beneficiary, within three years preceding 
the beneficiary's application for admission into the United States, has been employed abroad in a qualifying 
managerial or executive capacity, or in a capacity involving specialized knowledge, for one continuous year 
by a qualifying organization, and seeks to enter the United States temporarily in order to continue to render 
his or her services to the same employer or a subsidiary or affiliate thereof, in a capacity that is managerial, 
executive, or involves specialized knowledge. 
The regulation at 8 C.F.R. $ 214.2(1)(1)(ii) states, in part: 
Intracompany transferee means an alien who, within three years preceding the time of his or her 
application for admission into the United States, has been employed abroad continuously for one 
year by a firm or corporation or other legal entity or parent, branch, affiliate, or subsidiary 
thereof, and who seeks to enter the United States temporarily in order to render his or her 
services to a branch of the same employer or a parent, affiliate, or subsidiary thereof in a capacity 
that is managerial, executive, or involves specialized knowledge. 
The regulation at 8 C.F.R. S; 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 
howledge 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 
manageria1, executive or involved specialized knowledge and that the alien's prior 
WAC 03 139 51192 
Page 3 
education, training, and employment quaIifies himher to perform the intended serves 
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. # 214.2(1)(14)(ii) states that a visa petition under section 101(a)(15)(L) which involved 
the opening of a new office may be extended by filing a new Form 1-129, accompanied by the foIIowing: 
(A) Evidence that the United States and foreign entities are still qualifying 
organizations as defined in paragraph (l)(I)(ii)(G) of this section; 
(B) Evidence that the United States entity has been doing business as defined in 
paragraph (1 )( l)(ii)(H); 
(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 petitioner has submitted sufficient evidence to establish that the 
beneficiary will be employed by the U.S. entity primarily in a managerial or executive capacity. 
Section 101 (a)(44)(A) of the Act, 8 U.S.C. 3 1 10 1 (a)(44)(A), provides: 
l'he 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) 
(iii) 
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; 
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 
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 
WAC03 13951192 
Page 4 
the supervisor's supervisory duties unless the employees supervised are 
professional. 
Section 101 (a)(44)(B) of the Act, 8 U.S.C. $ 1 10 1 (a)(44)(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 
(14 Receives only general supervision or direction from higher level 
executives, the board of directors, or stockholders of the organization. 
The petitioner initially stated in the petition that the beneficiary would be responsible for establishing 
activities in the United States, broadening the petitioner's business connections, and establishing the U.S. 
entity as planned. 
In a letter of support, dated March 25, 2003, the petitioner described the beneficiary's duties in part as: 
[The beneficiary] has developed and currently oversees support services for Japanese 
companies entering the U.S. market. As part of this function, he plans and develops websites 
for our clients. He also coordinates, plans, and leads business inspection tours to allow our 
clients to learn American business practices. He developed and continues to lead our service 
to asslst families to develop plans to studies abroad. [sic] Back office support services 
continue to be provided by the [foreign entity] in Japan . . . . 
In response to the director's request for additional evidence, the petitioner described the beneficiary's duties 
in part: 
Researching U.S. companies and products to find possible vendors and partners; planning, 
contact and arranging inspection tours and early stage negotiations; planning and developing 
web-sites, etc . . . . 
The petitioner listed the beneficiary's job duties as well as the percentage of time to be spent performing each 
duty as: 
1. 10% Research and analyze trends in U.S.-Japanese business to establish company 
focus and policies, and to plan future growth of [the U.S. entity]. 
WAC 03 139 51192 
Page 5 
2. 2.5% Implement accounting systems and plan for cash flow and currency fluctuations 
while coordinating with CFO, Corporate Development -~dvisor and 
Accounting Officer to ensure integrity and harmony with other part o- 
3. 2.5% Prepare business analysis and report toresident on progress. 
4. 5% Work with Japanese businesses to clarify goals and needs during the early stages 
of entering the U.S. market. 
5. 10% Research, report to Japanese companies and advise on U.S. vendors' potential, 
characteristics and trends in support of US.-Japanese business alliances, to allow 
Japanese companies to benefit from the opening of the Japanese market to 
international competition by linking with U.S. vendors. 
6. 5 % Research U.S. distributors and corporate buyers to find opportunities for Japanese 
companies in America. 
7. 15% Perform liaison between U.S. and Japanese companies to begin the process of 
making alliances with American and other international companies. 
8. 5% Develop and oversee support services (real estate, accounting, legal, etc., -- 
'business incubation') for Japanese companies entering the U.S. market. 
9. 5% Plan and develop websites, or coordinate provision of outsourced web 
development and management. 
10. 10% Plan, coordinate and lead business inspection tours to allow clients to learn 
American business practices and begin reIationship building. 
1 1. 20% Plan, develop and lead services for families planning to send children or young 
people for studies abroad. 
12. 5% Supervise back office support services, making use of ore office 
staff as well as dedicated customer service staff. 
13. 5% Hire (&fire), set compensation levels, hain and manage customer service staff. 
The petitioner also stated that the beneficiary's position has been primarily executive in nature, that the 
beneficiary works under the general supervision of the foreign entity, and that he has full discretion to make 
necessary business decisions. The petitioner stated that the beneficiary's managerial duties as described (8 
through 13) allow him full discretion to manage the organization on a day-to-day basis and to supervise the 
work of others, including "outsourced service providers." 
The petitioner listed services offered by the U.S. entity to Japanese families to include: 
a. Finding schools and support programs corresponding to the individualized needs of 
the families. 
WAC 03 139 51 192 
Page 6 
b. Finding home-stay arrangements. 
c. Dealing with emergent issues, problem-solving, and on-going changes in goals of 
family members. 
The petitioner submitted a company organizational chart, which depicted the beneficiary as president and 
chief executive officer of the U.S. entity, with a "CFO," corporate development adviser, and three customer 
service re~resentatives under his direction. The chart described the subordinate ~ositions as: CFO - 
managing finance of Corporate development adv~ser - communicating w~th cllents; and 
Customer servlce are the Kanto area, Kyushu area, and Kansai area. The pet~tloner 
also submitted copies of the U.S. entity's Articles of Incorporation, IRS Form 1120, Corporate Income Tax 
Return for 2002, a company business plan, and an unaudited financial statement for the year 2002. 
The director subsequently denied the petition. The director stated that there had been insufficient evidence 
submitted to establish that the beneficiary would be performing executive or managerial duties. The director 
noted that there had been no evidence submitted to demonstrate that the beneficiary would be working 
through others to achieve organizational goals. The director also noted that although the petitioner claimed to 
employ five subordinates, it failed to submit any IRS W-2 Forms or IRS DE-6 Forms to substantiate its claim. 
The director further noted that the beneficiary had been the sole employee of the U.S. entity since it was 
established in 2001. The director concluded by stating that a review of the evidence of record failed to 
establish that the beneficiary had a support staff of professional, managerial, or supervisory personnel who 
would relieve him from performing non-qualifying duties. 
On appeal, counsel disagrees with the director's decision and asserts that the director failed to consider that 
the beneficiary supervises employees who are located in Japan. Counsel also asserts that the beneficiary is a 
functional manager in that he manages the operation of both the business and educational support programs. 
Counsel contends that the U.S. entity utilizes the services of outside contractors rather than salaried 
employees. Counsel further contends that the beneficiary's executive role consists of planning the 
development of the company by "planning for financial growth, services offered, pricing, etc." Counsel 
concludes by asserting that the beneficiary operates the U.S. entity will full independence. 
On reviewing the petition and the evidence, the petitioner has not established that the beneficiary has been 
employed in a managerial or executive capacity. In evaluating whether the beneficiary is employed in a 
primarily managerial capacity, the AAO will look first to the petitioner's description of the beneficiary's job 
duties. See 8 C.F.R. fj 214.2(1)(3)(ii). The petitioner's description of the job duties must clearly describe the 
duties to be performed by the beneficiary and indicate whether such duties are either in an executive or 
managerial capacity. Id. The petitioner must specifically state whether the beneficiary is primarily employed 
in a managerial or executive capacity. A petitioner cannot claim that some of the duties of the position entail 
executive responsibilities, while other duties are managerial in nature. A beneficiary may not claim to be 
employed as a hybrid "executive/manager" and rely on partial sections of the two statutory definitions. In the 
instant matter, the petitioner has failed to distinguish the beneficiary's role in the operation of its business. 
For example, the petitioner describes the beneficiary's duties as managerial in that he supervises support staff. 
and executive in that "he has full discretion to make necessary business decisions." Further, the definitions 
of executive and managerial capacity 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 prove 
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 
(9th Cir. July 30, 1991). In the instant matter, the record shows that the beneficiary was the sole employee of 
WAC 03 139 5 1 192 
Page 7 
the U.S. entity at the time the petition was filed. There is insufficient ev~dence to show that any of these 
foreign employees actually perform the day-to-day non-qualifying duties of the U.S. entity. Consequently, 
there is insufficient evidence to show that the beneficiary will perform the high-level responsibilities as 
defined, or that he will primarily perform those duties rather than spending the majority of his time 
performing day-to-day functions of the organization. 
On review, the petitioner has provided a vague and nonspecific description of the beneficiary's duties that 
fails to demonstrate what the beneficiary does on a day-to-day basis. For example, the petitioner states that 
the beneficiary's duties include researching US, companies and products, planning and negotiating contracts, 
and developing web sites. The petitioner did not, however, define the early stage negotiations or the web-site 
development process; nor did the petitioner clarify the research or planning processes. Going on record 
without supporting documentary evidence is not sufficient for purposes of' meeting the burden of proof in 
these proceedings. Mutter of Treasure Crafl oJ Culifornia, 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. Suvu, 724 F. Supp. 1 103 (E.D.N.Y. 1989), afj'd, 905 F.2d 41 (2d. Cir. 1990). 
In addition, the petitioner describes the beneficiary's responsibilities as: marketing the petitioner's services to 
Japanese businesses and families, leading business inspection tours, developing web sites, researching United 
States and Japanese business trends, and participating in the negotiating processes. Since the beneficiary 
actually conducts the research, performs technical work, sells the services, negotiates the contracts, and 
markets the petitioner's services, he is performing tasks necessary to provide a service or product and this duty 
cannot be considered managerial or executive in nature. 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 Internutiunul, 19 T&N Dec. 593, 604 (Comm. 1988). 
Although the petitioner asserts that the beneficiary is managing a subordinate staff, the record does not 
establish that the subordinate staff is composed of supervisory, professional, or managerial employees. See 
section 101(a)(44)(A)(ii) of the Act. In the instant matter, counsel claims that the beneficiary supervises five 
subordinate staff members who provide the necessary support services for the operation of the U.S. entity. 
Contrary to counsel's claim, the evidence shows that the five individuals are employed in Japan and that they 
perform services for the foreign entity. For example, in the staffing list the CFO is said to be the president 
of the foreign entity, and the corporate development advisor is listed as the director of the foreign entity. In 
addition, it appears from the organizational chart that the three customer service representatives service their 
individual regions in Japan. Furthermore, the petitioner indicated that the beneficiary spends only five 
percent of his time supervising "back office support services." The evidence demonstrates that the 
beneficiary has been the US, entity's sole employee since it was established in 2001. Although the petitioner 
asserts that the beneficiary supervises back office support staff, the evidence shows that the staff is located 
abroad and provides services to the foreign entity rather than the U.S. entity. A first-line supervisor will not 
be considered to be acting in a managerial capacity merely by virtue of his or her supervisory duties unless the 
employees supervised are professional. Section 101(a)(44)(A)(iv) of the Act. 
The petitioner has provided no comprehensive description of the beneficiary's duties that would demonstrate that 
he would be directing the management of the organization, establishing goals and policies, exercising a wide 
latitude in discretionary decision-making, or that he would receive only general supervision or direction from 
higher level individuals. Mutter of Treasure CrLlfi of California, supru. Although the petitioner stated that the 
beneficiary's position is primarily executive in nature, in that he performs under the general supervision of the 
WAC 03 139 51192 
Page 8 
foreign entity and has full discretion to make necessary business decisions, there has been no evidence submitted 
to substantiate its claim. Going on record without supporting documentary evidence is not sufficient for 
purposes of meeting the burden of proof in these proceedings. Matter qf Treasure Craff of Califi,rnia, id. 
Further, rather than providing a specific description of the beneficiary's duties, the petitioner generally 
paraphrased the statutory definition of executive capacity. See section IOl(a)(44)(A) of the Act, 
8 U.S.C. (j 1 101(a)(44)(A). However, conclusory assertions regarding the beneficiary's employment 
capacity are not sufficient to meet the petitioner's burden of proof. Merely repeating the language of the 
statute or regulations does not satisfy the petitioner's burden of proof. Fedin Bros. Co., Ltd. v. Suva, 
724 F. Supp. 1103, 1108 (E.D.N.Y. 1989), ufd, 905 F. 2d 41 (2d. Cir. 1990); Avyr Associates Inc. v. 
Meissner, 1997 WL 188942 at *5 (S.D.N.Y.). Contrary to the petitioner's contention, it appears that the 
beneticiary's duties will primarily consist of researching business opportunities, marketing the organization's 
services, conducting business tours, providing housing and educational placement services to Japanese 
families, and developing web sites for the company. In addition, the record fails to demonstrate that the U.S. 
entity has developed to a point where it is able to support the services of an executive. 
On appeal, counsel contends the beneficiary is a functional manager. 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 
IOl(a)(44)(A)(ii) of the Act, 8 U.S.C. 5 1101(a)(44)(A)(ii). 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. 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 Scirntology Internationul, 19 I&N Dec. 593, 604 (Comm. 1988). In this matter, 
counsel asserts that the beneficiary is a functional manager in that he manages the company's business and 
educational support programs. Contrary to counsel's contentions, the record demonstrates that the 
beneficiary actually perfom~s the functions necessary to maintain the support programs. For example the 
record shows that the U.S. entity provides services to assist Japanese families in finding schools, social 
support programs, and housing; and to resolve any conflicts that may arise. There is no evidence in the record 
to show that there is anyone besides the beneficiary to perform such duties. 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 const~tute evidence. Mutter of Obaigbena, 19 I&N Dec. 533, 534 (BIA 1988); Mutter Of 
Laurrann, 19 I&N Dec. 1 (BIA 1983); Matter of Rumirez-Sanchez, 17 I&N Dec. 503,506 (BIA 1980). 
Counsel further contends that the U.S. entity utilizes the services of outside contractors rather than salaried 
employees in the operation of its business and educational support programs. In the letter dated March 25, 
2003, the petitioner indicated that the U.S. entity planned to rely on independent contractors to provide 
support services. In the company business plan, the petitioner indicated that it receives legal advice from an 
attorney concerning immigration issues, and accounting advice from a public accountants group concerning 
financial matters. The petitioner has neither presented evidence to document the existence of these 
employees nor has the petitioner shown to what extent the beneficiary will supervise their activities. Nor has 
the petitioner identified whether the contract employees will be employed on a full-time, part-time, or as 
needed basis. Additionally, the petitioner has not explained how the services of the contracted employees will 
obviate the need for the beneficiary to primarily conduct the petitioner's business. Without documentary 
WAC 03 139 51 192 
Page 9 
evidence to support its statements, the petitioner does not meet its burden of proof in these proceedings. 
Matler of Treasure Crafi of Cullfor)iia, supra. 
In summary, the record as presently constituted is not persuasive in demonstrating that the beneficiary will be 
employed by the U.S. entity primarily in a managerial or executive capacity. Accordingly, the appeal will be 
dismissed. 
Beyond the decision of the director, the minimal documentation of the parent company's and the petitioner's 
business operations raises the issue of whether there is a qualifying relationship between the U.S. entity and a 
foreign entity pursuant to 8 C.F.R. 5 214.2(1)(l)(ii)(G). In addition, there is insufficient evidence contained in 
the record to demonstrate that the foreign entity will continue doing business pursuant to the regulation at 
8 C.F.R. $214.2(l)(l)(ii)(H). For these additional reasons, 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 29 1 of the Act, 8 U.S.C. 5 1361. The petitioner has not sustained that burden. 
ORDER: The appeal is dismissed.