dismissed L-1A Case: Computer And Equipment Export

U.S. Department of Homeland Security 
20 Mass. Ave. NW. Rm. A3042 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
FILE: SRC 02 269 52792 Office: TEXAS SERVICE CENTER Date: FFB 0 * 2004 
IN RE: Petitioner: 
Beneficiary: 
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 10 1 (a) j 1 5)(L) of the 
Immigration and Nationality Act, 8 U.S.C. 5 1 101(a)(15)(L) 
ON BEHALF OF PETITIONEK: 
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 
Pministrative Appeals Office 
(1" 
SRC 02 269 52792 
Page 2 
~ DISCUSSION: The nonimmigrant visa petition was denied by the Director, Texas Service Center, 
and is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. 
The petitioner, Hard Export Corp., endeavors to classify the beneficiary as a nonimmigrant manager 
pursuant to section 101(a)(15)(L) of the Immigration and Nationality Act (the Act), 8 U.S.C. 5 
1 10 1 (a)(15)(L). The petitioner claims to be a subsidiary of located in Brazil. 
The petitioner claims to be engaged in the business of i mercialization of 
computers, telephony material, and equipment to supply offices, stores, industries, and banks. The 
initial petition was approved to allow the petitioner to open a new office. It now seeks to extend the 
petition's validity and the beneficiary's stay for two years as the U.S. entity's commercial manager. 
The petitioner was incorporated in the State of Florida on October 4, 2000 and claims to have four 
employees. 
On March 18, 2003, the director denied the petition and determined that the petitioner had not 
established that the beneficiary will be primarily performing duties in a managerial capacity. 
On appeal, the petitioner's counsel states, "the managerial capacity of the beneficiary is clearly 
demonstrated" and asserts that the petitioner's utilization of independent contractors is indispensable 
to the functioning of the company. Counsel submits a brief in support of the appeal. 
To establish L-1 eligibility under section 101(a)(15)(L) sf the Act, the petitioner must meet certain 
criteria. Specifically, within three years preceding the beneficiary's application for admission into the 
United States, a qualifying organization must have employed the beneficiary in a qualifying 
managerial or executive capacity, or in a specialized knowledge capacity, for one continuous year. 
Furthermore, the beneficiary must seek to enter the United States temporarily to continue rendering 
his or her services to the same employer or a subsidiary or affiliate thereof in a managerial, executive, 
or specialized knowledge capacity. 
In relevant part, the regulations at 8 C.F.R. 5 214.2(1)(3) state 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)(C;) of this 
section. 
(ii) Evidence that the slien wil! be employed in an executive, managerial, or 
specialized knowledge capacity, including a detailed description of the services to be 
performed. 
Further, the regulations at 8 C.F.R. 5 214.2(1)(14)(ii) require that a visa petition under section 
101 (a)(15)(L) of the Act which involvsd :he opening of a new office may be extended by filing a new 
Form 1- 129, accompanied by the followixg: 
(A) Evidence that the United States and foreign entities are still qualifying 
organizations as defined in paragraph (I)(l)(ii)(G) of this section; 
SRC 02 269 52792 
Page 3 
(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 w-ill be employed in a managerial or 
executive capacity; and 
(E) Evidence of the financial status of the United States operation. 
The primary issue in this proceeding is whether the beneficiary will be primarily performing 
managerial duties for the United States entity. Section 101(a)(44)(A) of the Act, 8 U.S.C. 
5 1 10 1(a)(44)(A), provides: 
The term "managerial capacity" means an assignment within an organization in which the 
employee primarily- 
i. manages the organization, or a department, subdivision, function, or 
component of the organization; 
. . 
11. supervises and controls the w~rk of other supervisory, professional, or 
managerial employees, or manages an essential function within the organization, or a 
department or subdivision of the organization; 
. . . 
111. if another employee or other employees are directly supervised, has the 
authority to hire and fire or recomrnend 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 w-ith 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. 
On September 17, 2002, the petitioner filed Form 1-129. The petitioner claimed four employees and 
described the beneficiary's proposed duties in the United States as: 
Continue the Management of the Comniercial Department; Hire and dismiss; create 
and install organizational structures; implement systems and methods for work 
SRC 02 269 52792 
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optimization; establish goals, policies and administrative rules; supervise and control 
the work of all the professionals she employ. 
In addition, in an August 30, 2002 supporting letter, the petitioner further described the beneficiary's 
proposed U.S. duties as: 
To analyze and elaborate financial projections; 
To manage the Commercial Department of the company; 
To hire and dismiss [at] her discretion; 
To create and install organizational structures; 
To implement systems and methods for work optimization; 
To establish goals, policies and administrative rules; 
To supervise and control the work of all professionals and managers that she employs; 
To select and contract suppliers of goods and services; 
To identify and select new products; 
To establish budgets, market and sales strategies; 
To orient staff to comply with Brazil and Florida laws and regulations. 
The petitioner also stated, "[the beneficiary] will be involved in planning marketing strategies and in 
the busilress budget [sic] ." 
On November 1,2002, the director requested additional evidence. In particular, the director requested 
evidence that the six independent contractors actually work for the U.S. company and an explanation 
for why the quarterly tax return ending on June 30, 2002 indicated that the beneficiary was the 
petitioner's only employee who was paid low wages. 
In response, the petitioner claimed it employed six independent contractors. The petitioner submitted 
a copy of the employment agreements for its employees and stated that these employees opted to be 
paid "a low wage but with the advantage to receive a percentage over the net profit of the company at 
the end of the year." The petitioner also explained that there are "no contracts with the 2 independent 
sales people" and "[sluch professionals are paid by commission over sales and are not full time or 
exclusive employees of the company." The petitioner submitted copies of the checks purportedly 
paying the commission for ;he sales performed by the two cofitract employees. In addition, the 
petitioner claimed that the freight agent is provided by an independent company that ships its 
prodncts overseas and is paid according to each shipment service they provide. The petitioner stated 
that an indepe~dent company also provides its accountant and financial assistant and submitted a 
copy of the service contracts and checks paid to the independent company. Finally, the petitioner 
submitted a copy of a service agreement and claimed that it retained the services of an advertising 
agency to assist with advertisement and promotions of the company. 
On ~Varch 18, 2003, the director denied the petition. The director determined that the petitioner had 
not established that the beneficiary will be primarily performing duties in a managerial capacity. The 
director found that '-the business had not expanded to the point where the services of a full-time, bona 
fide commercial manager would be required." 
SRC 02 269 52792 
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On appeal, counsel claims, "the managerial capacity of the beneficiary is clearly demonstrated." 
Counsel stated that "all the independent contractors render services to [the petitioner], have services 
agreements and are an indispensable part of the functioning of the company." Counsel submits 
supporting documentation including the petitioner's IRS Form 941, the employment agreements 
between the independent contractors and the petitioner, a description of the beneficiary's duties, and a 
timetable. 
In examining the managerial capacity of the beneficiary, the AAO will look to the description of the 
beneficiary's U.S. job duties to determine whether the beneficiary is primarily acting in a managerial 
capacity. See 8 C.F.R. $ 214,2(1)(3)(ii). On review, the petitioner failed to establish that the 
beneficiary will be employed in a primarily managerial capacity. The petitioner has provided a vague 
and nonspecific description of the beneficiary's duties that fail to establish what the beneficiary does 
on a day-to-day basis. For example, the petitioner stated that the beneficiary's duties include "install 
organizational structures," "implement systems and methods for work optimization," and -'establish 
goals, policies and administrative rules." However, it is unclear what organizational structures the 
beneficiary will install. what systems and methods the beneficiary will devise, and the goals, policies, 
and administrative rules that the beneficiary will establish. Going on record without supporting 
documentary evidence is not sufficient for purposes of meeting the burden of proof in these 
proceedings. 34atter afTreasure Cra$ of Calfornia, 14 I&N Dec. 190 (Reg. Comm. 1972). 
In addition. the petitioner generally paraphrased the statutory definition of managerial capacliy. See 
section 10 1 (a)(44)(A) of the Act, 8 U.S.C. 5 1 10 1 (a)(44)(A). For instance. the petitioner depicted the 
beneficiary as "supervise[ing] and control[ing] the work of all the professionals she employ." 
However, conclusory assertions regarding the beneficiary's employment capacity are not sufficient. 
Merely repeating the language of the statute or regulations does not satisfj the petitioner's burden of 
proof. Fedin Bros. C3., Ltd. v. Suva, 724 F. Supp. 1 103, 1108 (E.D.N.Y. 1989), afd, 905 F. 2d 41 
(2d. Cir 1990); rlv~vrArsociatzs Inc. v. Meissner, 1997 WL 188942 at "5 (S.D.N.Y.). 
Further, whether the beneficiary is a managerial employee turns on whether the petitioner has 
sustained its burden of proving that his duties are "primarily" managerial. See sections lOl(a)(44)(A) 
and (B) of the Act. Here, the petitioner fails to document what proportion of the beneficiary's duties 
would be managerial functions and what proportion would be non-managerial. The petitioner lists the 
beneficiary's duties as including both managerial and administrative or operational tasks, but fails to 
quantify the time the beneficiary spends on them. This failure of documentation is important because 
several of the beneficiary's daily tasks, such as being "involved in planning marketing strategies," 
"identifj[ing] and seiect[ing] new products," and "establish[ing] budgets, market and sales 
strategies," do not fall directly under traditional managerial duties as defined in the statute. Although 
the petitioner claimed it employed the services of an advertising agency to assist with advertisement 
and promotions of the company, the list of employees and assigned duties did not indicate that any of 
the listed emplcyees perfcrm or assist the beneficiary with these daily tasks. An employee who 
primarily perforr,~s the tasks necessary to produce a product or to provide services is not considered to 
be employed in a managerial capacity. Matter of Church Scientology Intcrn;rtlonal, 19 !&N Dec. 
593, 604 (Comm. 1988). 
SRC 02 269 52792 
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Although the beneficiary is not required to supervise personnel, if it is claimed that her duties involve 
supervising employees, the petitioner must establish that the subordinate employees are supervisory, 
professional, or managerial. See 5 101(a)(44)(A)(ii) of the Act. The petitioner claimed that the 
beneficiary "supervise[s] and control[s] the work of all professionals and managers that she 
employs." 
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 101 (a)(32) of the Act, 8 U.S.C. 5 1 10 1 (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); Matter of ling, 13 I&N Dec. 35 (R.C. 1968); Matter of Shin, 11 I&N Dec. 686 (D.D. 
1966). 
Therefore, the A40 must focus on the level of education required by the position, rather than the 
degree held by subordinate employee. The possession of a bachelor's degree by a subordinaie 
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 matter, the petitioner has not, in 
I 
fact, established that an advanced degree is actually necessary, for exan~ple. to perform the 
administrative work of the iinpon and export agent or purchase and sales agent, whorn are among the 
beneficiary's subordinates. 
Although counsel states on appeal that the petitioner has contractual employees, the peliiiener has not 
presented sufficient evidence to document the existence of these employees. Additionally, the 
petitioner has not explained how the services of the contracted employees obviate the need for the 
beneficiary to primarily condxt the petitioner's business. Without documentary evidence to support 
its statements, the petitioner does not meet its burden of proof in these proceedings. Matter of 
Treasure Craft ofCal@rnia, 14 I&N Dec. 190 (Reg. Comm. 1972). 
The AAO notes that the petitioner submitted inconsistent evidence. First, in the responsl= to the 
director's request for additional evidence, the petitioner claimed that there are "no contracts with the 
2 independent sales peop!eX and "[s]uch professionals are paid by commission over sales and are riot 
full time or exclusive employees of the company." Second, on the 2002 U.S. rrganizati~iial chart, the 
petitioner indicated thdt of the six subordinate employees, the two commissioned sales employees and 
the freight agent were independent contractors. Third, the Employer's Quarterly Report ending the 
quarter on June 30, 2002 indicates that the petitioner employed four workers. Fourth, IRS Form 341 
indicates that there were two employees paid for the quarter ending March 3 1, 2002. Fifth, in an 
August 30, 2002 letter. the petitioner stated that the company was "able to hire two other e~riployees 
on the second quarter of this current year increasing its staff froin two to four paid employees;" 
therefore, indicating that for the previous year, prior to he time of filing for the beneficiary's 
extension on September 17, 2002, the petitioner was not operating the business with 3 full staff. The 
petitioner rnust establish eligibility at the time of filing the nonimmigrant visa petition. A visa 
SRC 02 269 52792 
Page 7 
petition may not be approved at a future date after the petitioner or beneficiary becomes eligible 
under a new set of facts. Mutter of Michelin Tire Corp., 17 I&N Dec. 248 (Reg. Comm. 1978). 
Sixth, the employment agreements between the petitioner and two of the employees were effective as 
of February 2002. Seventh, the 2001 U.S. Corporation Income Tax Return indicates that no salaries 
and wages were paid and there was no cost for labor even though in the August 30, 2002 letter, the 
petitioner claimed that the beneficiary was transferred to the U.S. company in September 2001. 
Because of these inconsistencies, CIS cannot determine the actual organizational structure of the 
petitioning entity and the beneficiary's resulting duties. 
Finally, the petitioner submitted copies of the checks for the independent contractors that are dated as 
of 2002 and paid to "cash," although the petitioner claimed that it had made agreements with several 
independent companies and its employees. For example, the petitioner made a deal with Astral 
Freight Services Inc. to ship its products overseas and claimed that the "company is paid according to 
each shipment service they provide to the petitioner." However, check number 19 bNndicates pay to 
the order of "cash" even though in the left hand comer it shows it is for Astral Freight Services Inc. 
In addition, the memo section of check number mong others, appears to be altered with 
"white-out" or correction fluid in parts. On April 26, 2002 two checks were written, check number 
1334 indicates that it is for Astral Freight and check number 1335 indicates that it is for a commission 
for Maria; however, the checks are paid to the order of cash and show the same driver's license 
number, birth date, and American Express number. Because of the inconsistencies in the evidence 
and the apparent alterations, the A40 deems this evidence to be of reduced probative value and 
weight. Doubt cast on any aspect of the petitioner's proof may, of course, lead to a reevaluation of the 
reliability and sufficiency of the remaining evidence offered in support of the visa petition. Marter gf 
30. 19 I&N Dec. 582,591 (BIA 1988). 
In sum. based upon the varying discrepancies in the record, the AAO is unclear exactly who works 
full-time, part-time, or as an independent contractor for the petitioning entity. It is incumbent upon 
the petitioner to resolve any inconsistencies in the record by independent objective evidence. Any 
attempt to explain or reconcile such inconsistencies will not suffice unless the petitioner submits 
conipetent objective evidence pointing to where the truth lies. iMatter of Ho, 19 I&N Dec. at 591-32. 
Doubt cast on any aspect of the petitioner's proof may, of course, lead to a reevaluation of the 
reliability and sufficiency of the remaining evidence offered in support of the visa petition. Id. 
After careful consideration of the evidence, the AAO must conclude that the beneficiary will not be 
employed in a primarily managerial capacity. For this reason, the petition may not be approved. 
Beyond the decision of the director, the AAO is not persuaded that the beneficiary has been eniployed 
in a managerial capacity abroad as defined at section 101 (a)(44) of the Act. As previously stated to 
establish L- 1 eligibility under section 10 1 (a)(15)(L) of the Act, the petitioner must submit evidence 
that within three years preceding the beneficiary's application for admission into the United States. 
the foreign organization employed the beneficiary in a qualifying managerial or executive capacity, or 
in a specialized knowledge capacity, for one continuous year. The petitioner submitted a vague 
description of the beneficiary's employment abroad to determine whether her employment was of a 
qualifq'ing nature. For instance, the petitioner described the beneficiary as "maintainring] cgntact with 
the suppliers" and "establish[ing] goals and policies." Again, going on record without supporting 
SRC 02 269 52792 
Page 8 
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. at 190. 
Another issue not addressed by the director is whether the petitioning entity has been doing business 
for the previous year. At the time the petitioner seeks an extension of the new office petition, the 
regulations at 8 C.F.R. 3 214.2(1)(14)(ii)(B) requires the petitioner to demonstrate that it has been 
doing business for the previous year. The term "doing business" is defined in the regulations as "the 
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." 8 C.F.R. 5 214.2(1)(l)(ii). The record contains evidence of a minimal 
number of transactions during the petitioner's first year of operations. There is no provision in CIS 
regulations that allows for an extension of this one-year period. If the business is not sufficiently 
operational after one year, the petitioner is ineligible by regulation for an extension. In sum, the 
petitioner has not reached the point that it can employ the beneficiary in a predominantly managerial 
position. For these additional reasons, the petition may not be approved. 
The AAO observes that the petitioner claims it is engaged in the import and export business, but notes 
that the petitioner has submitted no evidence that would indicate that it is actually engaged in this 
type of business. Upon the importation of goods into the United States, the Customs Form 7501, 
Entry Summary, serves to classify the goods under the Harmonized Tariff Schedules of the United 
States and to ascertain customs duties and taxes. The Customs Form 301, Customs Bond, serves to 
secure the payment of import duties and taxes upon entry of the goods into the United States 
According to 19 C.F.R. 5 144.12, the Customs Form 7501 shall show the value, classification, and 
rate of duty for the imported goods as approved by the port director at the time the entry summary is 
filed. The regulation at 19 C.F.R. 5 144.13 states that the Customs Form 30i will be filed in the 
amount required by the port director to support the entry c!ocumentation. Although customs brokers 
or agsnts are frequently utilized in the import process, the ultimate consignee should have access to 
these forms since they are liable for all import duties and taxes. Any company that is doing business 
through the regular, systematic, and continuous provision of goods through importation may 
reasonabiy be expected to submit copies of these forms to show that they are doing business as an 
import firm. The AAO notes that the record is devoid of any evidence of this nature. 
An application or petition that fails to comply with the technical reyuilernents of the law may be 
denied by the AAO even if the Service Center does not id en ti^ all of the grounds for denial in the 
iilitiai decision. See Spencer Enterprises, lnc. v. United States, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 
2001), qfd. 345 F.3d 683 (9th Cis. 2003); see also Dor v. INS, 891 5.2d 997, 1002 n. 9 (2d Cir. 
1989)(noting that the AAO reviews appeals on a de novo basis). 
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. $ 1361. Here, that burden has not been met. 
Ascordmgly, the appeal will be dismissed. 
ORDER: The appeal is dismissed.