dismissed L-1A Case: Computer Education

U.S. Department of Homeland Security 
20 Mass Ave., N.W.. Rm. A3042 
Washington, DC 20529 
U.S. Citizenship 
and\ Immigration 
Services 
FILE: WAC 03 162 50514 OFFICE: CALIFORNIA SERVICE CENTER Date: n~y I 1 
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section lOl(a)(lS)(L) of the Immigration 
and Nationality Act, 8 U.S.C. tj 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. ~n~further inquiry must be made to that office. 
1 
Robert P. Wiemann, Director 
Administrative Appeals Office 
h 
WAC 03 162 505 14 
Page 2 
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 filed this nonimmigrant petition seeking to extend the employment of its president as an 1,-1A 
nonimm~grant lntracompany transferee pursuant to section 101(a)(15)(L) of the Immigration and Natlonal~ty 
Act (the Act), 8 U.S.C. fj 1101(a)(15)(L). The petitioner is a corporation organized in the State of Califomla 
and claims to be a computer education service provider. The petitioner states that it is an affiliate of 
. located in the Philippines. 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 failed to establish that the beneficiary would be 
employed in the United States in a managerial or executive capacity. 
On appeal, counsel disputes the d~rector's find~ngs and submits a bnef l~sting and explain~ng each of his 
objections. 
To establish L-1 eligibility under section lOl(a)(l5)(L) of the Immigration and Nationality Act (the Act), 
8 U.S.C. 5 1101(a)(15)(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 regulations at 8 C.F.R. fj 214.2(1)(3) state that an individual petition filed on Form 1-129 ghall be 
accompanied by: 
(1) 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 himiher to perform the 
intended services in the United States. 
WAC 03 162 505 14 
Page 3 
Pursuant to 8 C.F.R. 9 214.2(1)(14)(ii) 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 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 (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 managerial or executive 
capacity; and 
(E) Evidence of the financial status of the United States operation. 
At issue in this proceeding is whether the petitioner has established that the beneficiary would be employed 
primarily in a managerial or executive capacity. 
Section 101(a)(44)(A) of the Act, 8 U.S.C. 5 1101(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; 
(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 manageria1 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 1101(a)(44)(B), provides: 
WAC 03 162 505 14 
Page 4 
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 
(iv.) receives only general supervision or direction from higher level executives, the 
board of directors, or stockholders of the organization. 
In support of the petition, the petitioner provided the following description of the beneficiary's job duties: 
[The beneficiary] is responsible for managing company operations, including strategic and 
business planning, sales and marketing and distribution of the company's products in the 
United States. She is responsible for all product research and sourcing, supplier/source 
liaison and contract negotiation. [The beneficiary] coordinates planning, cost estimation, 
product distribution and management of development projects. She manages the financial 
affairs of the company, including budgeting, cost controls and capital expenditures and 
provide[s] leadership in creating new initiatives for [the petitioner] through application of 
management principles and effective administration of the annual and overall budget of the 
company. [She] directs the contractor/consultant meetings and oversees communications 
with U.S. suppliers, consultants, regulatory agencies and clients. The job duties of this senior 
management position require constant interface and iiaison with the affiliate company in the 
Philippines in order to achieve the company's sales and marketing goals. 
i 
On July 28, 2003, Citizenship and Immigration Service (CIS) issued a request for additional ev~dence. The 
petitioner was asked to provide a more detailed description of the beneficiary's duties listing all employees 
under the beneficiary's control and assigning a percentage of time to each of the beneficiary's listed duty. 
The petitioner was also instructed to provide several of its quarterly wage reports. 
'The petitioner responded with the requested documents and information. The response included the 
following breakdown of the beneficiary's proposed duties in the United States: 
Establish worldwide distributionlsales channels, manage contract negotiations with potential 
vendors for licensing and distribution of [the petitioner] products and services . . . ; (30 
, percent); 
Coordinate distribution processes of company products and services to U.S. clients and direct 
meetings with suppliers, vendors and clients (20 percent); 
Oversee development of the company's research and development and identify potential new 
products and se~ices for sale and distribution by [the petitioner] (15 percent). 
WAC 03 162 505 14 
Page 5 
Manage annual budget and cost controls including capital acquisitions and meet with the 
consultants and regulatory entities regarding routine compliance under federal and state law 
including corporate maintenance, tax filings and employee reporting requirements (15 
percent); 
Supervise planning and implementation of business and marketing plans for the [the 
petitioner] product and services for the U.S. market . . . (10 percent); 
Liaison with U.S. suppliers for [the petitioner] and its affiliate company . . . (10 percent); [sic] 
The petitioner stated that the beneficiary does not currently have any employees under her supervision, but 
"anticipates hiring several employees in the near future." The petitioner also submitted its quarterly wage and 
withholding reports for the first and second quarters of 2003, both of which indicate that the beneficiary was 
the petitioner's only employee prior to and at the time the petition was filed. 
On 'August 29, 2003 the director denied the petition concluding that the beneficiary was providing the 
petitioner's services and therefore could not be deemed an L-1A manager or executive. 
On appeal, counsel submits a brief asserting that the director's consideration of the petitioner's lack of staff 
was improper as this factor is not an accurate indicator as to the beneficiary's day-today duties. Counsel 
states that small businesses, like the petitioner, benefit from the executive's direct involvement in the daily 
operations. However, the reasonable needs of'the petitioner will not supersede the requirement that the 
beneficiary be "primarily" employed in a managerial or executive capacity as required by the statute. See 
sections 101(a)(44)(A) and (B) of the Act, 8 U.S.C. $ 1101(a)(44). The reasonable needs of the petitioner 
may justify a beneficiary who allkates 5 1 percent of his duties to managerial or executive tasks as opposed to 
90 percent, but those needs will not excuse a beneficiary who spends t'he majority of his or her time on non- 
qualifying duties. 
While the petitioner has adequately illustrated the beneficiary's high degee'of discretionary authority, this 
factor alone does not determine that the beneficiary would be employed in a managerial or executive capacity. 
Rather, 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. $ 214.2(1)(3)(ii). In the instant case, while the 
petitioner has used words such as "manage," "oversee," and "supervise" in describing the beneficiary's daily 
tasks, there is no evidence on record to indicate who or what the beneficiary would manage, oversee, or 
supervise, as the petitioner has readily admitted to having hired no staff aside from the beneficiary. Although 
counsel is correct in pointing out that the size of the petitioner's staff cannot be the sole determining factor in 
deciding whether a beneficiary primarily ptx-forms qualifying tasks, the fact remains that 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 ~nternational, 19 I&N Dec. 
593, 604 (Comm. 1988). Thus, whether the petitioner has a support staff working directly for'its organization 
or whether such individuals are hired on a contract basis, evidence must be provided to establish that someone 
other than the beneficiary is performing the daily operational tasks. 
In the case at hand, the petitioner indicates that it plans to hire additional employees in the future. However, 
8 C.F.R. 9 214.2(1)(3)(v)(C) allows the intended United States operation one year within the date of approval 
of the pet~tion to support an executive or managerial position. There is no provision in CIS regulat~ons that 
WAC 03 162 50514 
Page 6 
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. Furthermore, 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 Michelin Tire Corp., 17 
I&N Dec. 248 (Reg. Comm. 1978). Therefore, the petitioner's business activity and the beneficiary's 
subsequent change of duties that may result after the filing of the petition are not probative of the petitioner's 
eligibility as of the filing date. 
While counsel claims that the printing and distribution are outsourced to various vendors, the record lacks 
evidence, such as Forms 1099, to show that any miscellaneous income has been paid to any such vendors. 
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 constitute evidence. Matter of Obaigbena, 19 I&N Dec. 
533, 534 (BIA 1988); Matter Of Laureano, 19 I&N Dec. 1 (BIA 1983); Matter of Ramirez-Sanchez, 17 I&N 
Dec. 503, 506 (BIA 1980). Furthermore, based on the petitioner's tax return for 2002 only $1,160 worth of 
goods were sold. There is no indication of who dld the selling as items 12 and 13 (page one) do not show that 
any money was paid for compensation of officers or salaries and wages of employees; nor did the petitioner 
indicate that it paid any additional labor costs in Schedule A item 4 of that tax return. 
On review, the record as presently constituted is not persuasive in demonstrating that the beneficiary would 
be employed in a primarily managerial or executive capacity. The petitioner is currently run entirely by the 
beneficiary. However, the fact that an individual manages a small business does not necessarily establish 
eligibility for classification as an intracompany transferee in a managerial or executive capacity within the 
meaning of section 101(a)(44) of the Act. The record does not establish that a majority of the beneficiary's 
duties have been or will be primarily directing the management of the organization. Rather, the beneficiary's 
list of duties suggests that at least 50% of her overall responsibilities will include coordinating distribution of 
the petitioner's product, establishing sales channels, and negotiating contracts. While these tasks are all 
crucial to the success of the petitioner's operation, they are, not of a qualifying managerial or executive nature. 
Thus, the record indicates that a significant portion of the beneficiary's duties have been and will be directly 
providing the services of the business. The petitioner has not demonstrated that the beneficiary will be 
primarily supervising a subordinate staff of professional, managerial, or supervisory personnel who relieve 
her from performing nonqualifying duties. The petitioner has not demonstrated that it has reached a level of 
organizational complexity wherein the hiring/firing of personnel, discretionary decision-making, and setting 
company goals and policies constitute significant components of the duties performed on a day-to-day basis. 
Nor does the record demonstrate that the beneficiary primarily manages an essential function of the 
organization or that she operates at a senior level within an organizational hierarchy. Based on the evidence 
furnished, it cannot be found that the beneficiary has been or will be employed primarily in a qualifying 
managerial or executive capacity. For this reason, the petition may not be approved. 
Beyond the decision of the diiector, the record does not contain sufficient evidence that the petitioner has 
been engaged in the regular, systematic, and continuous provision of goods andlor services in the United 
States and abroad pursuant to 8 C.F.R. 214.2(1)(l)(ii)(H). Even though the essence of the petitioner's 
business is selling a product created abroad by the parent organization, the petitioner has not submitted any 
sales invoices to indicate that it has commenced doing business. Furthermore, as discussed above, the 
petitioner's 2002 tax return shows that the petitioner has sold only $1,160 of its goods. This considerably 
small volume of sales suggests the petitioner has not been selling its product on a regular, continuous, and 
systematic basis. It is noted that an application or pet~tion that fails to comply with the technical requirements 
WAC 03 162 50514 
Page 7 
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). As such, due to the additional grounds 
discussed in this paragraph, this petition cannot be approved. 
i 
In visa petition proceedings, the burden of proving eligbility for the benefit sought remains entirely with the 
&titioner. Section 291 of the Act, 8 U.S.C. 5 1361. Here, that burden has not been met. 
ORDER: The appeal is dismissed.