dismissed L-1A Case: Cleaning And Maintenance

U.S. Deparlment of Homeland Security 
20 Massachusetts Ave., N.W., Rm A3042 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
File: SRC-02-15 8-500 13 Office: TEXAS SERVICE CENTER Date: .&@ ' Tppfis; 
Petition: Petition for a Nonimmigrant Worker Pursuant to Section 10 1 (a)(15)(L) of the Immigration 
and Nationality Act, 8 U.S.C. § 1 10 l(a)(15)(L) 
IN BEHALF OF PETITIONER: 
SELF-REPRESENTED 
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. 
obert P. Wiemann, Director 
Administrative Appeals Office 
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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 petition seeking to extend the employment of its President and General 
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 1 101(a)(15)(L). The petitioner is a corporation 
organized in the State of Florida that rovides cleaning and maintenance solutions. The petitioner claims that 
it is the affiliate o &located in Caracas, Venezuela. The beneficiary was initially granted a 
one-year period of stay to open a new office in the United States and the petitioner now seeks to extend the 
beneficiary's stay. 
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 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, the petitioner asserts that the beneficiary will be 
employed in a primarily managerial or executive capacity, and that the Act is not intended to prohibit 
petitioners with a small staff size from establishing L-1A eligibility. In support of this assertion, the 
petitioner submits a statement and additional evidence. 
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 
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education, training, and employment qualifies himlher 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. § 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 this section; 
(B) Evidence that the United States entity has been doing business as defined in 
paragraph (I)(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 management or executive 
capacity; and 
(E) Evidence of the financial status of the United States operation. 
The 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 101(a)(44)(A) of the Act, 8 U.S.C. 5 1101(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 
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(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. 5 1 101(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. 
In a letter submitted with the initial petition on April 25, 2002, the petitioner described the beneficiary's job 
duties as follows: 
[The beneficiary] will continue filling the position of President and General Manager for the 
[petitioner]. His duties are among others: the discretionary decision making of the business 
and affairs of the corporation; presides of all the meetings of the shareholders and all the 
meetings of the Board of Directors; execute bonds, mortgages and other instruments requiring 
seal; sign certificates of stocks; represent all the business and interest of [the petitioner]; hire 
and fire employees; manage the short and long [term] financial planning; establish general 
guidelines which must be followed and executed by employees . . . . 
The petitioner indicated on Form 1-129 that it employed four individuals as of the date of filing the petition. 
On August 14, 2002, the director requested additional evidence. Specifically, the director requested evidence 
that the beneficiary will be employed in a primarily managerial or executive capacity. The director further 
instructed the petitioner to submit a list of employees that the beneficiary will manage, including their job 
titles, duties, and evidence of their employment such as copies of Forms W-2. 
In a response received on October 8,2002, in part the petitioner submitted copies of 2001 Forms W-2 for five 
employees, and a letter further discussing the petitioner's staffing and the beneficiary's duties. The petitioner 
provided that it employs the beneficiary and an administrative assistant, yet it has three positions available for 
prospective workers. The petitioner restated the beneficiary's job description as submitted with the initial 
petition, and indicated that the beneficiary's duties include "manag[ing] the organization, [and] primarily 
supervis[ing] and control[ling] the work of other employees." The petitioner described the duties of the 
administrative assistant as follows: 
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Plan, direct and coordinate supportive services of an organization, such as record keeping, 
mail distribution, invoicing and collection, file keeping, oversee facilities planning and 
maintenance and custodial operations, coordinates activities of clerical and administrative 
personnel, analyzes and organizes office operations, etc. 
Education: work experience, plus degree. 
(Emphasis in original). 
On October 24, 2002, the director denied the petition. The director determined that the petitioner did not 
establish that the beneficiary will be employed in the United States in a primarily managerial or executive 
capacity. The director stated the following: 
Since the office only has the beneficiary and one administrative assistant, [Citizenship and 
Immigration Services (CIS)] is not persuaded that the beneficiary's duties in this position will 
be primarily those of an executive or manager. Rather it would appear that the beneficiary 
will be engaged primarily in the day-to-day operations of the business itself. 
On appeal, the petitioner asserts that the beneficiary will be employed in a primarily managerial or executive 
capacity. In an attached letter, the petitioner repeats the previously submitted description of the beneficiary's 
duties, and adds the following: 
[The beneficiary] is not a first line supervisor and he is not engaged primarily in the day-to- 
day operations of the business. The fact that at the time of the filled [sic] the petition, the 
entity had three(3) vacant positions, does not mean that the beneficiary is not an executive or 
manager. We provided evidence that those positions were filled before and we were in a 
recruitment period. Moreover, [the beneficiary] supervises professionals, the "Finance 
manager". 
The petitioner references the decisions in National Hand Tool Corp. v. Pasquarell, 889 F.2d 1472 (5th Cir. 
1989), and Mars Jewelers, Inc. v. INS, 702 F.Supp. 1570 (N.D. Ga. 1988), to stand for the proposition that 
"[tlhe [Act] was not intended to limit managers or executives to persons who supervise a large number of 
persons or large enterprise[s]." 
Upon review, the petitioner's assertions are not persuasive. 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. tj 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. 
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The beneficiary's job description submitted by the petitioner is brief and vague, providing little insight into 
the true nature of the tasks the beneficiary will perform in the United States. For example, the statements that 
the beneficiary's duties include "the discretionary decision making of the business and affairs of the 
corporation" and "represent[ing] all the business and interest of [the petitioner]" do not indicate what tasks the 
beneficiary will perform on a daily basis. The petitioner indicates that the beneficiary "presides [over] all the 
meetings of the shareholders and all the meetings of the Board of Directors." However, the petitioner stated 
that there is only one shareholder, thus the evidence of record suggests that there are no shareholder meetings. 
The petitioner has not discussed its board of directors or described the nature or frequency of meetings with 
them, such that CIS can understand the nature of the beneficiary's responsibility for such referenced 
meetings. The petitioner indicates that the beneficiary will "sign certificates of stocks," yet the petitioner has 
failed to submit copies of any of its stock certificates, or to establish that such duty would require a significant 
amount of the beneficiary's time. 
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. 1 103 (E.D.N.Y. 1989), ufd, 905 F.2d 41 (2d. Cir. 
1990). The actual duties themselves reveal the true nature of the employment. Id. The provided job 
description does not allow the AAO to determine the actual tasks that the beneficiary will perform, such that 
they can be classified as managerial or executive in nature. 
The petitioner provides that that beneficiary will have supervisory authority over subordinate employees, 
including an administrative assistant. The petitioner states that it has a total of five positions in its company, 
although three were vacant at the time the petition was filed and recruitment efforts are underway to fill them. 
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 iMichelin Tire Corp., 17 I&N Dec. 248 (Reg. Comm. 1978). The fact that the 
petitioner intends to hire additional workers in the future is not probative of its eligibility as of the filing date. 
Accordingly, CIS will only consider the beneficiary's subordinate who was employed as of the date of filing 
the petition, namely the administrative assistant. 
Although the beneficiary is not required to supervise personnel, if it is claimed that his duties involve 
supervising employees, the petitioner must establish that the subordinate employees are supervisory, 
professional, or managerial. See Fj 101(a)(44)(A)(ii) of the Act. 
In evaluating whether the beneficiary manages professional employees, the AAO must evaluate whether the 
subordinate positions require a baccalaureate degree as a minimum for entry into the field of endeavor. 
Section 10l(a)(32) of the Act, 8 U.S.C. 5 1 101(a)(32), states that "[tlhe term profession shall include but not 
be limited to architects, engineers, lawyers, physicians, surgeons, and teachers in elementary or secondary 
schools, colleges, academies, or seminaries." The term "profession" contemplates knowledge or learning, not 
merely skill, of an advanced type in a given field gained by a prolonged course of specialized instruction and 
study of at least baccalaureate level, which is a realistic prerequisite to entry into the particular field of 
endeavor. Matter of Sea, 19 I&N Dec. 817 (Comm. 1988); Mutter of Ling, 13 I&N Dec. 35 (R.C. 1968); 
Matter of Shin, 11 I&N Dec. 686 (D.D. 1966). 
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Therefore, the AAO must focus on the level of education required by the position, rather than the degree held 
by a subordinate employee. The possession of a bachelor's degree by a subordinate employee does not 
automatically lead to the conclusion that an employee is employed in a professional capacity as that term is 
defined above. In the instant case, the petitioner has not established that a bachelor's degree is actually 
necessary to perform the duties of its administrative assistant. While the petitioner suggests that the 
administrative assistant holds a degree, it has failed to specify the subject studied, the degree held, and the 
relevance of the training to the required tasks. Thus, contrary to the petitioner's assertion, the petitioner has 
failed to show that the beneficiary's subordinate is a professional. 
Nor has the petitioner shown that the administrative assistant supervises subordinate staff members or 
manages a clearly defined department or function of the petitioner, such that this employee could be classified 
as a manager or supervisor. Accordingly, the petitioner has not shown that the beneficiary's subordinate 
employee is supervisory, professional, or managerial, as required by section 101(a)(44)(A)(ii) of the Act. 
The petitioner cites National Hand Tool Corp. v. Pasquarell, 889 F.2d 1472, n.2 (5th Cir. 1989), and Mars 
Jewelers, Inc. v. INS, 702 F.Supp. 1570, 1573 (N.D. Ga. 1988), to stand for the proposition that the small size 
of a petitioner will not, by itself, undermine a finding that a beneficiary will act in a primarily managerial or 
executive capacity. The petitioner has furnished no evidence to establish that the facts of the instant petition 
are analogous to those in National Hand Tool Corp. v. Pasquarell or Mars Jewelers, Inc. v. INS. It is noted 
that both of the cases cited relate to immigrant visa petitions, and not the extension of a "new office" 
nonimmigrant visa. As the new office extension regulations call for a review of the petitioner's business 
activities and staffing after one year, the cases cited by the petitioner are distinguishable based on the 
applicable regulations. See 8 C.F.R. $ 214,2(1)(14)(ii). Additionally, regarding Mars Jewelers, Inc. v. INS, in 
contrast to the broad precedential authority of the case law of a United States circuit court, the AAO is not 
bound to follow the published decision of a United States district court in matters arising within the same 
district. See Matter of K-S-, 20 I&N Dec. 715 (BIA 1993). Although the reasoning underlying a district 
judge's decision will be given due consideration when it is properly before the AAO, the analysis does not 
have to be followed as a matter of law. Id. at 719. As the petitioner has not discussed the facts of any of the 
cited matters, they will not be considered in this proceeding. 
Yet, the petitioner correctly observes that a company's size alone may not be the determining factor in 
denying a visa to a multinational manager or executive. See section 101(a)(44)(C), 8 U.S.C. 
5 1 101 (a)(44)(C). Pursuant to section 10 1 (a)(44)(C) of the Act, 8 U.S.C. $ 1 101 (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. 
5 214.2(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 allows for an 
extension of this one-year period. If the business does not have sufficient staffing after one year to relieve the 
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beneficiary from primarily performing operational and administrative tasks, the petitioner is ineligible by 
regulation for an extension. 
While the petitioner has not clearly described its business operations, it indicates that it provides cleaning and 
maintenance solutions. A review of the petitioner's invoices for goods sold reflects that the petitioner sells 
floor mats and cleaning supplies. Thus, it is evident that the reasonable needs of the petitioner require its 
employees to perform numerous non-managerial and non-executive tasks such as taking orders and 
specifications for goods. answering questions about merchandise from customers, tracking the petitioner's 
inventory, managing a checking account and paying bills, answering telephones, receiving and shipping 
merchandise, and conducting sales transactions. As one of two employees of the petitioner, it appears that the 
beneficiary must share in these non-qualifying tasks. Thus, the reasonable needs of the petitioner suggest that 
the beneficiary must spend a significant amount of time performing the tasks necessary to provide the 
petitioner's products and services. 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 (Comm. 1988). The petitioner has failed to 
establish that these non-managerial and non-executive tasks do not constitute the majority of the beneficiary's 
time. See 8 C.F.R. $ 214.2(1)(3)(ii). 
Based on the foregoing, the petitioner has not established that the beneficiary will be employed in a primarily 
managerial or executive capacity, as required by 8 C.F.R. 5 214.2(1)(3)(ii). For this reason, the appeal will be 
dismissed. 
Beyond the decision of the director, the petitioner has not established that it has a qualifying relationship with 
the beneficiary's foreign employer as required by 8 C.F.R. 5 214.2(1)(l)(ii)(G). The petitioner has failed to 
provide any independent evidence to show who owns or controls it or the foreign entity. As evidence of a 
petitioner's claimed qualifying relationship, CIS must examine documents such as stock certificates, the 
corporate stock certificate ledger, stock certificate registry, corporate bylaws, and the minutes of relevant 
annual shareholder meetings to determine the total number of shares issued, the exact number issued to the 
shareholder, and the subsequent percentage ownership and its effect on corporate control. Additionally, a 
petitioning company must disclose all agreements relating to the voting of shares, the distribution of profit, 
the management and direction of the subsidiary, and any other factor affecting actual control of the entity. 
See Matter of Siemens Medical Systems, Inc.. 19 I&N Dec. at 362. Without full disclosure of all relevant 
documents, CIS is unable to determine the elements of ownership and control. Going on record without 
supporting documentary evidence is not sufficient for purposes of meeting the burden of proof in these 
proceedings. Matter of SoJffici, 22 I&N Dec. 158, 165 (Comm. 1998) (citing Matter of Treasure Craft of 
California, 14 I&N Dec. 190 (Reg. Comm. 1972)). 
Further, the petitioner has failed to establish that the foreign entity is a qualifying organization engaged in the 
regular, systematic, and continuous provision of goods and/or services pursuant to 8 C.F.R. 
5 214.2(1)(l)(ii)(H). The regulation at 8 C.F.R. § 214.2(l)(ii)(G)(2) reflects that, in order for an entity to be 
considered a qualifying organization, the petitioner must show that it: 
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Is or will be doing business (engaging in international trade is not required) as an employer in 
the United States and at least one other country directly or through a parent, branch, affiliate, 
or subsidiary for the duration of the alien's stay in the United States as an intracompany 
transferee . . . . 
The regulation at 8 C.F.R. 5 214.2(l)(ii)(H) defines the term "doing business" as: 
[Tlhe regular, systematic, and continuous provision of goods and/or services by a qualifying 
organization and does not include the mere presence of an agent or office of the qualifying 
organization in the United States and abroad. 
The regulation at 8 C.F.R. 5 214.2(1)(14)(ii)(A) requires the petitioner to submit "[e)vidence that the United 
States and foreign entities are still qualifying organizations." The only evidence the petitioner submitted to 
show that the foreign entity continues to do business consists of untranslated documents and brief, general 
letters from two of the company's vendors. These documents do not serve as sufficient evidence that the 
foreign entity is engaged in "the regular, systematic, and continuous provision of goods and/or services." See 
8 C.F.R. 5 214.2(l)(ii)(H). Thus, the petitioner has failed to show that the foreign entity is a qualifying 
organization. See 8 C.F.R. 5 214.2(l)(ii)(G)(2). Accordingly, the petitioner has not established that it has a 
qualifying relationship with the foreign entity. See 8 C.F.R. 5 214,2(1)(14)(ii)(A). For this additional reason, 
the petition may not be approved. 
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. 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. Cj 1361. Here, that burden has 
not been met. 
ORDER: The appeal is dismissed.