dismissed L-1A Case: Computer Consulting

U.S. Dcparlmcnt of Homeland Security 
20 Mass. Km. ,43042, 425 1 Strcct. N.W. 
Washington. DC' 20529 
U.S. Citizenship 
and Immigration 
Services 
FILE: SRC 02 20 1 5 132 1 Office: TEXAS SERVICE CENTER Date: FEB 1 6 2005 
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section lOI(a)(15)(L) of the Immigration 
and Nationality Act, 8 U.S.C. ji I 101 (a)(l S)(L) 
ON BEHALF OF PETITIONER: 
SELF-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. 
/' 
1.- .-i' 
L8' - 
I dobk !wiemann, Director 
L. 
Administrative Appeals Office 
SRC 02 201 51321 
Page 2 
DISCUSSION: The Director, Texas Service Center, denied the petition for a noni~nmigrant 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 exlend the employment of its president as an L-I A 
nonimmigrant intracompany transferee pursuant to Cj 10 1 (a)(15)(L) of the Immigration and Nationality Act 
(the Act), 8 U.S.C. fJ 1101(a)(15)(L). The petitioner is a corporation organized in the State of South Carolina 
that is engaged in the computer consulting busrness. The petitioner claims that it is the subsidiary of the 
beneficiary's foreign employer, located in Hatare, Zimbabwe. The petitioner now seeks to extend the 
beneficiary's stay for three years. 
The director concluded that the limited evidence in the record did not support the petitioner's assertion that 
the beneficiary would be employed by the U.S. corporation in a primarily managerial or executive capacity. 
The director also noted that the petitioner did not establish that the petitioning organization is doing business 
in the United States. 'The director consequently denied the petition. 
On appeal, the petitioner acknowledges that the: record contained "insufficient supporting documentation," 
and states that additional evidence is si~bmitted cln appeal "to correct the wrong impression that the company 
has one employee and is not fully operational." 'fhe petitioner submits a one-page statement and 
documentation, such as invoices and proposals, in support of  he appeal. 
To establish L-l eligibility, the petitioner must meet the criteria outlined in section IOl(a)(lS)(L) of the 
Immigration and Nationality Act (the Act), 8 U.S.C. $ 1 101(a)(l5)(L). Specifically, within three years 
preceding the beneficiary's application for ad~nission into the United States, a qualifying organization must 
have employed the beneficiary in a qualifying managerial c)r executive capacity, or in a specialized 
knowledge capacity, for one continuous year. tn 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. Cj 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 (I)(I)(ii)(G) of this section. 
(ii) Evidence that the alien will be ernployed in arr 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 etnployment abroad was in a position that was 
managerial, executive or involved specialized knowledge and that the alien's prior education, 
training, and employment qualifies him/her to perform the intended services in the llnited States; 
however, the work in the United States need not be the same work which the alien performed abroad. 
SRC 02 201 51321 
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The regulation at 8 C.F.R. fj 214.2(1)(14)(ii) provides that a visa petition, which involved the opening of a 
new office, may be extended by filing a new Forrn I- 129, accompanied by the following: 
(a) Evidence that the United States and foreign entities are still qualifying organizations as 
defined in paragraph (I)(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 management or executive capacity; and 
(e) Evidence of the financial status of th~: United States operation. 
The AAO will first address the issue of whether the beneficiary would be employed by the U.S. entity in a 
primarily managerial or executive capacity. 
Section 101(a)(44)(A) of the Act, 8 U.S.C. 3 I I0 l (a)(44)(A), provides: 
The term "managerial capacity" means an assignment within an organization in which the employee 
primarily- 
(1) Manages the organization, or a department, subdivision, function, or component of 
the organization; 
(2) 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; 
(3) Has the authority to hire and tire or recornrnend those as well as other personnel actions 
(such as promotion and leave authorization) if another employee or other employees are directly 
supervised: if no other employee is directly supervised, functions at a senior level within the 
organizational hierarchy or with respect to the function managed; and 
(I) 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 sllpervisory duties unless the employees supervised 
are professional. 
Section 101 (a)(44)(B) of the Act, 8 U.S.C. ij 1 I0 i(a)(44)(R), provides: 
SRC 02 201 51321 
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The term "executive capacity" means an assignment within an organization in which the employee 
primarily- 
(1) Directs the management of the organization or a major component or function of the 
organization; 
(2) Establishes the goals and policies the organization, component, or function; 
3 Exercises wide latitude in discretionary decision-making; and 
(4) Receives only general supervision or direction from higher level executives, the board of 
directors, or stockholders of the organization. 
The petitioner stated in its October 25, 2002 response to the director's request for evidence that the 
beneficiary's job duties in the [J.S. entity included the following: 
1. Setup [sic] offices at 8% 
2. Processed application as Srna M~nortty usiness . . . . 12% 
3. Setup [sic] links with the stale web site on state bids and directed marketing 
personnel on how to do bids. 4% 
4. Setup [sic] an electronics shop in downtown Beaufort and sourced for [sic] funds for 
the stock. 33% 
5. Setup [sic] consulting contacts with United Stated Global Technical Network 
(USGTN). Tliis is an American aid organization that links third world countries with 
American companies to exchange technologies. We have already consulted with 
companies in Uganda, Ghana, Z~rnbabwe and Botswana. 25% 
6. He has directed the setting LIP of an electronics shop with E-bay auctions. 8% 
7. General and personnel training. 10% 
The petitioner also submitted an organizational chart which identified the beneficiary and three additional 
employees, including the vice-president, a financial director, and a consultant. 
In the decision dated December 1 1, 2002, the director stated that within one year of commencing operation, a 
new U.S. business must be fully operational to support the need for a manager or executive. The director 
concluded that the petitioner in the instant matter did not establish that the beneficiary would be employed in 
a primarily tnanagerial or executive capacity. The director noted the petitioner's quarterly tax return did not 
support the petitioner's claim that it employs anlone other than the beneficiary. The director states that as the 
sole employee, the beneficiary's pri tnary assignment would not be supervising a subordinate staff of 
professionals, managerial or supervisory personnel. The director therefore denied the petition. 
In an appeal filed January 13, 2003, the petitioner neglects to specifically address the director's finding that 
the beneficiary would not be employed in a primarily managerial or executive capacity. Rather, the petitioner 
states that the reasons for not yet recruiting permanent employees are: (I) the lack of available personnel; (2) 
the influence of the recession on the business' growth; and (3) the need to train personnel. The petitioner 
explains that contract employees were hired during the petitioning organization's development phase, and that 
the petitioner is targeting "big cities" for experienced personnel. 
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On review, as the petitioner failed to specifically refute the director's finding, the AAO cannot conclude that 
the beneficiary would be employed in the U.S. entity in a primarily managerial or executive capacity. The 
petitioner must establish eligibility at the time of tiling the nonirnmigrant 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 Michelin Tire Curl?., 17 I&N Dec. 248 (Reg. Comm. 1978). Therefore, the petitioner's assertion 
that the U.S. company intends to hire permanent "skilled and experienced personnel'" has no merit. 
Additionally, the petitioner is obligated to clarify the inconsistent and conflicting testimony by independent 
and objective evidence. Mutler of Ho, 19 I&N Dec. 582, 591-92 (BIA 1988). Simply asserting that the 
qualified personnel are unavailable in the petitioner's area does not qualify as independent and objective 
evidence. Going on record without supporting documentary evidence is not sufficient for purposes of 
meeting the burden of proof in these proceedings. Mutlcr of lrecrsure C'rufl c~fCul~fi~rniu, 14 I&N Dec. 190 
(Reg. Comm. 1972). For this reason the appeal will be dismissed. 
The AAO will next address the issue of whether the petitioning organization is doing business in the United 
States. 
In a June 10,2002 letter attached to the nonimmigrant petition, the petitioner explained that the U.S. company 
recently received state certification as a small business enterprise, and was qualified to respond to bids and 
contracts from the state. In a request for evidence dated August 28, 2002, the director asked that the 
petitioner provide evidence, such as a business license, lease, sales contracts, invoices, bills of lading, 
shipping receipts, and orders. that the U.S. company is presently doing business. In response, the petitioner 
submitted a copy of the petitioner's lease, throe invoices, and two E-bay "Seller's Checkout Summary,'' 
which identify the petitioner as the seller of electronics. 'The petitioner also provided copies of its retail 
license, zoning permit, and business license. 
In her decision, the director noted the evidence submitted by the petitioner in response to the director's 
request, and concluded that there was insufficient documentation to establish the regular, systematic and 
continuous provision of goods and services by the U.S. entity. 
On appeal, the petitioner submits additional invoices dated June 20, 2001 through December 16, 2002, work 
proposals, and E-bay sellers' checkout summaries. The petitioner also provides pictures of "gallery stock 
items," which are also sold by the U.S. organization. 
On review, the record is not consistent in demonstrating that the petitioner is doing business as a computer 
consulting company, as claimed in the nonimmigrant petition. The petitioner provided various invoices, E- 
bay summaries, pictures, and proposals. While the invoices identify computer repairs completed by the 
petitioner, the remaining evidence is not related to computer consulting. The petitioner has not sufficiently 
explained its apparent function as a retailer. Additionally, the sale of items on E-bay is not reliable evidence 
that the petitioner is doing business. Again, the petitioner is obligated to clarify the incotisistent and 
conflicting testimony by independent and ob-jecxive evidence. M~rtter uf No, 19 I&N Dec. at 591-92. Going 
on record without supporting documentary evidence is not sufficient for purposes of meeting the burden of 
proof in these proceedings. Matter of Tre~rsltre C'rujl c?f~'~~lzfcrrnici, I4 I&N Dec. at 193. 
fvloreover, because the director specifically requested docunlentation regarding the petitioner's business, the 
sales invoices submitted by the petitioner on appeal will not be considered. The regulations affirmatively 
SRC 02 201 5 1321 
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require a petitioner to establish eligibility for the benefit it is seeking at the time the petition is filed. See 8 
C.F.R. 9 103.2(b)(12). The purpose of the request for evidence is to elicit further information that clarifies 
whether eligibility for the benefit sought has been established. 8 C.F.R. ij 103.2(b)(8). The petitioner was put 
on notice of required evidence and given a reasonable opportunity to provide it for the record before the visa 
petition was adjudicated. Therefore, the evidence will not be considered for any purpose. Mu!;er c?fSoriuno, 
19 I&N Dec. 764 (BIA 1988). 
Based on the foregoing reasons, the AAO cannot conclude that the petitioner is doing business in the United 
States as a computer consulting company. For this additional reason the appeal will be denied. 
Beyond the decision of the director, the record does not demonstrate that the beneficiary was previously 
e~nployed by the foreign entity in a primarily managerial or executive capacity as required in the regulation at 
8 C.F.R. Q; 214.2(1)(3)(iii). The petitioner subm~tted a slngle statement on the nonimmigrant petition noting 
that the beneficiary was the foreign entity's operations director, and was responsible for "planning the future 
of the business and refocusing." This brief statement is insufficient to establish the beneficiary's employ~nent 
abroad as a manager or executive. Going on record without supporting documentary evidence is not 
sufficient for purposes of meeting the burden nf proof in these proceedings. Matter cf Treusure C'ruJ of 
CTaZifornia, 14 I&N Dec, at 193. The appeal will be denied for this additional reason. 
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 Stales, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 2001), ufd. 345 F.3d 683 
(9th Cir. 2003): see uI.so Dor v. INS, 891 F.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. Accordingly, the 
director's decision will be affirmed and the petition will be denied. 
ORDER: The appeal is dismissed.