dismissed L-1A Case: Business Development

U.S. Department of Homeland Security 
U. S. Citizenship and Immigration Services 
identifying data deleted to Washington, Of/ice ofAdmrnrstratrve DC 20529-2090 Appeals MS 2090 
prevent clearly unwarranted 
invasion of personal pnvacy U.S. Citizenship 
and Immigration 
Services 
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File: Office: CALIFORNIA SERVICE CENTER Date: .fuL 1 5 2010 
Petition: Petition for a Nonimmigrant Worker Pursuant to Section 10 1 (a)(] 5)(L) of the Immigration 
and Nationality Act, 8 U.S.C. 5 1 101(a)(15)(L) 
IN BEHALF OF PETITIONER: 
INSTRUCTIONS: 
Enclosed please find the decision of the Administrative Appeals Office in your case. All of the documents 
related to this matter have been returned to the office that originally decided your case. Please be advised that 
any further inquiry that you might have concerning your case must be made to that office. 
If you believe the law was inappropriately applied by us in reaching our decision, or you have additional 
information that you wish to have considered, you may file a motion to reconsider or a motion to reopen. The 
specific requirements for filing such a request can be found at 8 C.F.R. 5 103.5. 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. Please be aware that 8 C.F.R. 5 103.5(a)(l)(i) requires that any motion must be filed 
within 30 days of the decision that the motion seeks to reconsider or reopen. 
Thank you, 
Chief, Administrative Appeals Office 
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DISCUSSION: The Director, California 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 is an Illinois corporation that previously filed a petition on behalf of the beneficiary in order to 
open a new office in the United States. The petitioner has now filed this nonimmigrant visa petition seeking to 
extend the employment of its business development manager for an additional five years as an L-1A 
nonimmigrant intracompany transferee pursuant to section 10 1 (a)( 1 5)(L) of the Immigration and Nationality 
Act (the Act), 8 U.S.C. 5 1 lOl(a)(lS)(L). 
The director denied the petition concluding that the petitioner did not establish that the beneficiary would be 
employed in the United States in a primarily managerial or 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, counsel for the petitioner asserts that the director 
erred in his conclusion and states that the beneficiary's duties are not primarily those of an executive or 
manager. 
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. 5 214.2(1)(3) states that an individual petition filed on Form 1-129 shall be 
accompanied by: 
(i) Evidence that the petitioner and the organization which employed or will employ the 
alien are qualifying organizations as defined in paragraph (l)(l)(ii)(G) of this section. 
(ii) Evidence that the alien will be employed in an executive, managerial, or specialized 
knowledge capacity, including a detailed description of the services to be performed. 
(iii) Evidence that the alien has at least one continuous year of full-time employment 
abroad with a qualifying organization within the three years preceding the filing of 
the petition. 
(iv) Evidence that the alien's prior year of employment abroad was in a position that was 
managerial, executive or involved specialized knowledge and that the alien's prior 
education, training, and employment qualifies himher to perform the intended 
services in the United States; however, the work in the United States need not be the 
same work which the alien performed abroad. 
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The regulation at 8 C.F.R. $ 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 qualifLing 
organizations as defined in paragraph (l)(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 primary issue in the present matter is whether the beneficiary will be employed by the United States 
entity in a primarily managerial or executive capacity. 
Section 10 l(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 
(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 10 l(a)(44)(B) of the Act, 8 U.S.C. 3 1 101(a)(44)(B), defines the term "executive capacity" as an 
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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. 
In support of the Form 1-129, the petitioner submitted a letter dated November 18, 2008, which included the 
following description of the beneficiary's proposed employment: 
As part of his responsibilities, [the bleneficiary will continue to plan, direct and coordinate 
activities of designated business opportunities to ensure that goals or objectives of each 
opportunity is [sic] accomplished within the constraints of a given time schedule. It will 
remain [the bleneficiary's responsibility to achieve the desired results within an allocated 
budget. He will review business development proposals and determine time frames, funding 
limitations, procedures for accomplishing projects, staffing requirements, and allotment of 
available resources to various phases. He will establish a work plan and monitor the staffing 
requirements. He will conduct interviews and select qualified candidates. 
[The bleneficiary will arrange for recruitment or assignment of personnel, confer with staff to 
outline work plans and to [sic] assign duties, responsibilities and scope of authority. He will 
review status reports, prepare project reports for management and the client. 
[The bleneficiary will continue to keep himself updated with [the] latest developments in the 
field by studying industry/technical manuals, periodicals and reports. He will utilize this 
knowledge to develop export models to meet customized requirements. He will formulate 
plans outlining steps required to develop exports, using structured analysis and design and 
submit plans to management for approval and implementation. 
On December 17, 2008, the director issued a request for evidence (WE) instructing the petitioner to submit a 
copy of its line and block organizational chart describing the company's managerial hierarchy and staffing 
levels and to provide evidence establishing that the beneficiary will manage supervisory, professional, or 
managerial employees or, in the alternative, that he will manage an essential function, department, or 
subdivision within the organization. The petitioner was also asked to provide IRS Form W-2 and W-3 
statements for 2007 and quarterly wage reports for all employees for the last four quarters. 
In response, counsel submitted a letter dated January 20, 2009, stating that the petitioner needs at least one 
more year to reach the business goals that were set at the time the initial new office petition was filed. 
Counsel stated that, while the business is profitable, it has experienced some setbacks due, in part, to the 
. . . - - . . . . - - - - -. 
Page 5 
economy. Counsel provided a list of the beneficiary's ten job responsibilities, which the director has 
incorporated into his decision. Counsel claimed that the petitioner is looking to hire 9-10 employees to fill 
the positions of office manager, secretary, accountant, bookkeeper, sales manager, and sales consultant. 
The petitioner also provided an organizational chart that included the proposed positions the petitioner is 
looking to fill as well as its quarterly tax reports and internally generated payroll documents. The latter, 
which accounts for the one-month period prior to the filing of the Form 1-129, shows that the beneficiary and 
the company president were the petitioner's only two employees approximately two weeks prior to filing with 
each employee receiving $1,49 1.29 in gross wages. 
In a decision dated February 3, 2009, the director denied the petition concluding that the petitioner failed to 
establish that the beneficiary would be employed in a primarily managerial or executive capacity. The 
director observed the petitioner's limited staff and its reliance on the beneficiary to perform non-qualifying 
tasks and concluded that the petitioner had not reached the developmental stage that would require the 
employment of an individual who would primarily perform tasks within a qualifying capacity. 
On appeal, counsel challenges the director's decision, asserting that the beneficiary functions at a senior level 
within the petitioner's organizational hierarchy. Counsel further asserts that the beneficiary is tasked with the 
key responsibility of expanding the petitioner's business by finding new business leads and developing a 
business and marketing strategy. Counsel states that such vast responsibility can only be assigned to someone 
that is employed in a managerial position. 
Counsel's assertions are not persuasive in establishing that the beneficiary would be employed in a qualifying 
managerial or executive capacity. It is not clear that the beneficiary in the present matter is in fact employed 
within a senior level of the petitioning organization. The beneficiary cannot be said to occupy a senior level 
within the petitioner's organization if the organization is staffed with a total of two employees and the 
beneficiary's seniority is based entirely on his relationship to positions that have yet to be filled. 
The only employee other than the beneficiary that the petitioner employed at the time of filing the petition 
was the company president, who occupied a position senior to the beneficiary. While the petitioner may alter 
its organizational hierarchy by hiring additional employees, which would result in a change in the 
beneficiary's placement within the hierarchy, the record does not support the finding that the beneficiary 
occupied a senior level within the organizational hierarchy at the time the petition was filed. A petitioner 
must establish eligibility at the time of filing. 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). 
Additionally, counsel's assertion that the crucial nature of the beneficiary's tasks is indicative of his 
managerial capacity is equally unpersuasive. As previously stated in the director's decision, 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). In the present matter, counsel 
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clearly states that the beneficiary's primary role is "[dleveloping new leads and business opportunities,"' 
which includes attending trade shows and visiting clients. These responsibilities are indicative of sales- 
related tasks. While the petitioner has stated that the beneficiary would not carry out the sales function, the 
fact that he would be assigned tasks related to developing business leads contradicts this assertion, or else, 
requires further explanation distinguishing between one who travels to client sites to establish key client 
accounts and one who sells a company's products or services. Given that both counsel and the petitioner have 
indicated that developing leads for new business would be the beneficiary's primary responsibility, one that 
the AAO deems to be of a non-qualifying nature, it would appear that the primary portion of the beneficiary's 
time would be spent on tasks that are not within the definitions of managerial or executive capacity. 
The AAO further notes that the beneficiary's supervision of four employees who are employed by the 
petitioner's foreign parent entity, as counsel contends, also cannot be deemed as time spent within a qualifying 
managerial or executive capacity. The claim that the foreign entity's employees support the beneficiary's 
position and somehow relieve the beneficiary from having to perform non-qualifying tasks is not supported 
by the evidence of record. 
While devoting a small fraction of the beneficiary's time to non-qualifying tasks would not render the 
petitioner ineligible for approval of the nonimmigrant visa petition, an analysis of the beneficiary's job 
description and the petitioner's organizational composition at the time of filing strongly indicates that the 
beneficiary would be required to spend a significant portion of his time performing the petitioner's daily 
operational tasks. Despite counsel's statements that indicate possibly justifiable reasons for the setbacks to the 
petitioner's continued organizational development, 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. There is no provision in USCIS regulations that allows for an extension of this one-year period. If 
the petitioning business is not sufficiently operational after one year, the petitioner is ineligible by regulation 
for an extension. In the instant matter, the petitioner has not reached a point in its development that justifies 
the employment of a predominantly managerial or executive employee. As such, the AAO cannot conclude 
that the beneficiary would be employed in a primarily managerial or executive capacity and for this reason 
cannot approve the instant petition. 
Furthermore, the AAO finds the petitioner ineligible based on additional grounds that had not been previously 
addressed in the director's decision. First, the petitioner has failed to establish that it has been doing business 
for the previous year. 8 C.F.R. 5 2 14.2(1)(14)(ii)(B). 
A visa petition which involved the opening of a "new office" may be extended by submitting evidence that 
the petitioner "has been doing business as defined in paragraph (l)(l)(ii)(H) of this section for the previous 
year.' 8 C.F.R. 5 214.2(1)(14)(ii)(B). "Doing business" is defined in part as "the regular, systematic, and 
continuous provision of goods and/or services." In this matter, the current petition was filed on December 
10, 2008. As such, the petitioner must establish that it had been doing business during the 12-month period 
prior to the time of filing. While the petitioner has provided invoices to show ongoing business transactions 
from August through October 2008, no evidence has been submitted to establish that business transactions 
were ongoing from January through July 2008. Going on record without supporting documentary evidence is 
1 See counsel's appeal brief, p. 3. 
not sufficient for purposes of meeting the burden of proof in these proceedings. Matter of SofJici, 22 I&N 
Dec. 158, 165 (Comm. 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm. 
1972)). Accordingly, the petitioner has failed to establish that it has been doing business for the previous 
year, and the petition may not be approved for this additional reason. 8 C.F.R. 5 214.2(1)(14)(ii)(B). 
Second, the petitioner has failed to establish that the beneficiary 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. 
* 8 C.F.R. 5 214.2(1)(3)(iii). Although the petitioner's initial support letter, subsection C, indicates that the 
beneficiary's foreign and prospective job duties would be described, the discussions provided in subsection 
C. 1 and C.2 are both in reference to the beneficiary's employment with the U.S. entity. It is therefore unclear 
what specific job duties the beneficiary performed during his employment abroad. Published case law 
supports the relevance of a job description to a determination of whether or not a particular position can be 
deemed as one within a qualifying managerial or executive capacity. See Fedin Bros. Co., Ltd. v. Suva, 724 
F. Supp. 1103, 1108 (E.D.N.Y. 1989), afd7 905 F.2d 41 (2d. Cir. 1990). Here, the AAO cannot examine this 
relevant information, as it has not been provided. 
While the petitioner also provided the foreign entity's organizational chart depicting the beneficiary as one of 
two assistant managers of export, overseeing one import and two export executives, it is unclear whether 
these individuals were professional employees. As these subordinate employees did not have subordinates of 
their own, they also cannot be deemed managerial or supervisory employees. As such, the petitioner has 
failed to establish that the beneficiary supervised the work of supervisory, professional, or managerial 
employees. In light of the above analysis, the AAO is unable to conclude that the beneficiary was employed 
abroad within a qualifying managerial or executive capacity and for this additional reason the instant petition 
cannot be approved. 
The initial approval of an L-1A new office petition does not preclude USCIS from denying an extension of 
the original visa based on a reassessment of the petitioner's qualifications. Texas A&M Univ. v. Upchurch, 99 
Fed. Appx. 556, 2004 WL 1240482 (5th Cir. 2004). Despite any number of previously approved petitions, 
USCIS 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), afd, 345 F.3d 683 (9th Cir. 2003); see 
also Soltane v. DOJ, 381 F.3d 143, 145 (3d Cir. 2004)(noting that the AAO reviews appeals on a de novo 
basis). Therefore, the instant petition will be denied for the above stated reasons, with each considered as an 
independent and alternative basis for denial. 
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.