dismissed L-1A Case: Computer Export

U.S. Department of Homeland Security 
20 Mass. Ave, N.W., Rm. A3042 
Wash~ngton, DC 20529 
U.S. Citizenship 
and Immigration 
Services 
File: SRC 03 245 5 1493 Office: TEXAS SERVICE CENTER Date: 1 1 
Petition: Petition for a Nonimmigrant Worker Pursuant to Section 10 1 (a)(15)(L) of the Immigration 
and Nationality Act, 8 U.S.C. 1101(a)(15)(L) 
IN 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. Any further inquiry must be made to that office. 
Robert P. Wiemann, Dir ctor Y 1 Administrative Appeals Office 
SRC 03 245 5 1493 
Page 2 
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 sales manager as an 
L-I A nonimmigrant intracompany transferee pursuant to section 10 1 (a)(15)(L) of the Immigration and 
Nationality Act (the Act), 8 U.S.C. 5 1101(a)(15)(L). The petitioner is a corporation organized in the State of 
Florida that is engaged in the ex ort of computers and accessories. The petitioner claims that it is the 
subsidiary of d , located in Santa Cruz, Bolivia. The beneficiary was initially granted a 
one-year period of stay to be employed in a new office and the petitioner now seeks to extend the 
beneficiary's stay for an additional three years. 
The director denied the petition concluding that the petitioner did not establish that the beneficiary has been 
and will continue to 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 cites to the changes made 
by the Immigration Act of 1990 with regard to managing a function, and further challenges the director's 
reliance upon the number of persons supervised as a basis for denial. 
To establish eligibility for the L-1 nonimmigrant visa classification, the petitioner must meet the criteria 
outlined m 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. 9 214.2(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)(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 hirnlher to perform the intended 
SRC 03 245 5 1493 
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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. jj 214.2(1)(3)(~) further provides that if the petition indicates that the beneficiary is 
coming to the United States as a manager or executive to open or to be employed in a new office in the United 
States, the petitioner shall submit evidence that: 
(A) Sufficient physical premises to house the new office have been secured; 
(B) The beneficiary has been employed for one continuous year in the three year period 
preceding the filing of the petition in an executive or managerial capacity and that the 
proposed employment involved executive or managerial authority over the new 
operation; and 
(C) The intended United States operation, within one year of the approval of the 
petition, will support an executive or managerial position as defined in paragraphs 
(l)(l)(ii)(B) or (C) of this section, supported by information regarding: 
(I) The proposed nature of the office describing the scope of the entity, its 
organizational structure, and its financial goals; 
(2) The size of the United States investment and the financial ability of the 
foreign entity to remunerate the beneficiary and to commence doing business in 
the United States; and 
(3) The organizational structure of the foreign entity. 
The primary issue in this matter is whether the beneficiary has been and will continue to 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. jj 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, 
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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 101(a)(44)(B) of the Act, 8 U.S.C. 9 1101(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. 
With the initial petition, counsel for the petitioner submitted an undated letter describing the beneficiary's role 
in the U.S. company. Specifically, counsel stated: 
[The beneficiary] has been working in an executive and managerial capacity in the positions of Vice- 
President and Sales Manager of [the petitioner]. [The beneficiary] has been formulating 
administrative and operational policies and procedures, [the beneficiary] also reviews and analyzes 
expenditures, financial and operation reports to determine requirements for increasing profits. [The 
beneficiary] is in charge of directing the sales department, analyzing market, setting strategies[,] 
contacting computers and accessories suppliers, celebrating contracts of purchase and sale 
management of the organization, developing advertising and promotion of products and as Sales 
Manager she has other essential functions in the U.S. Company . . . . 
Counsel continues to state that the beneficiary had the authority to hire and fire or recommend employees, as 
well as other personnel actions (such as promotion and leave authorization). 
Finding the initial evidence insufficient, the director issued a request for additional evidence on September 
15, 2003. In the request, the director requested a definitive statement regarding the U.S. and foreign 
employment of the beneficiary, including an organizational chart for each company. Finally, the director 
requested evidence that the U.S. entity was doing business, and also requested clarification with regard to the 
person or persons who performed the shipping and handling functions of the petitioner. 
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In a response dated September 17,2003, counsel submitted a detailed response which presented the following 
description of the beneficiary's position. 
[The beneficiary] has been performing a double important role within the organization. She 
works as Vice-President and Sales Manager of [the petitioner]. For this reason she has been 
working in [an] executive and a managerial capacity. [The beneficiary] has been in charge of 
coordinating sales, promotion and distribution activities, identify[ying] and locat[ing] 
distributors and suppliers of computer industry. She negotiates the purchase and coordinates 
the shipping of [equipment]. [The beneficiary] has been formulating administrative and 
operational policies and procedures and exercises discretionary authority over day-to-day 
operations; she also reviews and analyzes expenditures, financial and operations reports to 
determine requirements for increasing profits and identification and development of business 
opportunities and project feasibility and meeting with our company to review the progress 
and performance of the company; evaluating and reviewing the services ultimately provided 
by the company to ensure it meets proper specifications as per client and the service to ensure 
conformity with company's standards. 
Counsel further provided a breakdown of the percentage of time she devoted to each duty. Counsel indicated 
that the much of her time was devoted to coordinating sales, promotion, and distribution activities (35%). 
where the least of her time was spent on identifying and locating distnbutors and suppliers of the computer 
industry (5%). She also spent a large amount of time formulating administrative and operational policies and 
procedures (20%); evaluating and reviewing the services ultimately provided by the company to ensure they 
meet the proper specifications as mandated by the client (20%); identifying new markets for penetration and 
developing market strategy (10%); and reviewing and analyzing expenditures, financial and operations 
reports. Counsel further stated: "At the present, the beneficiary . . . coordinates the independent contractors' 
activities." 
Counsel omitted an organizational chart for the U.S. petitioner, although a chart for the foreign entity was 
provided. Counsel further alleged that pursuant to the changes made by the Immigration Act of 1990, the 
beneficiary is qualified for the benefit sought as a function manager. 
On October 6, 2003 the director denied the petition. The director determined that the evidence in the record, 
despite the petitioner's detailed response to the request for evidence, failed to establish that the beneficiary 
functioned at a senior level within the organization. Specifically, the director concluded that the evidence was 
insufficient to show that the beneficiary supervised professional, managerial or supervisory employees, or that 
she was primarily engaged in managerial or executive activities. Finally, the director concluded that based on 
the evidence presented, the beneficiary would not serve in a primarily managerial or executive capacity with 
the U.S. entity. 
On appeal, counsel for the petitioner restates a portion of his letter submitted in response to the request for 
evidence which discussed the Immigration Act of 1990 and the fact that the number of subordinate employees 
supervised is not dispositive if the beneficiary manages a function. 
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The AAO, upon review of the record of proceeding, concurs with the director's finding. Specifically, upon 
review of the beneficiary's stated duties and the evidence in the record, it appears that the beneficiary will not 
be acting in a primarily managerial or executive capacity. 
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. 8 214,2(1)(3)(ii). Whether the beneficiary is a manager 
or executive employee turns on whether the petitioner has sustained its burden of proving that her duties are 
"primarily" managerial or executive. See sections 101(a)(44)(A) and (B) of the Act. Here, the petitioner 
claims that the beneficiary's duties are exclusively managerial and executive, yet the list of duties provided in 
response to the director's request for evidence Includes a significant number of non-qualifying tasks. In 
addition, the petitioner does not clarify whether the beneficiary is claiming to be primarily engaged in 
managerial duties under section 101(a)(44)(A) of the Act, or primarily executive duties under section 
101 (a)(44)(B) of the Act. A beneficiary may not claim to be employed as a hybrid "executive/manager" and 
rely on partial sections of the two statutory definitions. A petitioner must establish that a beneficiary meets 
each of the four criteria set forth in the statutory definition for executive and the statutory definition for 
manager if it is representing the beneficiary is both an executive and a manager. In this case, however, the 
beneficiary's duties do not appear to fully comply with either of the regulatory definitions. 
For example, the petitioner states that the beneficiary spends the majority of her time "coordinating sales, 
promotion and distribution activities" of the company. In addition, the beneficiary identifies and locates 
distributors and suppliers, and identifies new markets for penetration. Clearly, the beneficiary is performing 
client-related services that will create a basis for marketing the petitioner's product in the United States. 
Based on the petitioner's representations, these sales, marketing and distribution tasks account for 50 percent 
of the beneficiary's time. 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). 
On appeal, counsel suggests that the beneficiary qualifies as a function manager, and specifically cites to the 
Immigration Act of 1990. Despite the changes made by the Immigration Act of 1990, the statute continues to 
require that an individual "primarily" perform managerial or executive duties in order to qualify as a 
managerial or executive employee under the Act. The word "primarily" is defined as "at first," "principally," 
or "chiefly." Webster's II New College Dictionaly 877 (2001). Where an individual is "principally" or 
"chiefly" performing the tasks necessary to produce a product or to provide a service, that individual cannot 
also "principally" or "chiefly" perform managerial or executive duties. 
The term "function manager" applies generally when a beneficiary does not supervise or control the work of a 
subordinate staff but instead is primarily responsible for managing an "essential function" within the 
organization. See section 101(a)(44)(A)(ii) of the Act, 8 U.S.C. 5 1101(a)(44)(A)(ii). The term "essential 
function" is not defined by statute or regulation. If a petitioner claims that the beneficiary is managing an 
essential function, the petitioner must furnish a written job offer that clearly describes the duties to be 
performed, i.e. identify the function with specificity, articulate the essential nature of the function, and 
establish the proportion of the beneficiary's daily duties attributed to managing the essential function. 8 
C.F.R. Q: 214.2(1)(3)(ii). In addition, the petitioner's description of the beneficiary's daily duties must 
SRC 03 245 5 1493 
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demonstrate that the beneficiary manages the function rather than performs the duties related to the function. 
As previously stated, 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. Boyang, Ltd. v. 
I.N.S., 67 F.3d 305 (Table), 1995 WL 576839 (9th Cir, 1995)(citing Matter of Church Scientology 
International, 19 I&N Dec. 593, 604 (Comm. 1988)). In this matter, the petitioner has not provided evidence 
that the beneficiary manages an essential function. Here, the petitioner provides documentation of the 
percentage of time the beneficiary devotes to each of her stated duties, yet several of the beneficiary's daily 
tasks, discussed above, do not fall directly under traditional managerial duties as defined in the statute. 
Furthermore, the petitioner indicates that the beneficiary is actively engaged in performing these functions, 
and thus cannot be deemed a function manager. 
Finally, counsel asserts that the director erred in determining that the beneficiary was unqualified for the visa 
classification due to the lack of subordinate employees beneath her. Pursuant to section 101(a)(44)(C) of the 
Act, 8 U.S.C. 9 1101(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. fj 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 beneficiary from primarily performing operational and 
administrative tasks, the petitioner is ineligible by regulation for an extension. In the instant matter, the 
petitioner has not reached the point that it can employ the beneficiary in a predominantly managerial or 
executive position. 
In this case, despite the director's specific request, counsel failed to provide any evidence or discussion with 
regard to the petitioner's other employees. Furthermore, counsel failed to provide an organizational chart as 
requested, although counsel's response to the director's request for evidence indicates that the beneficiary is in 
charge of the subcontractors. This evidence is not acceptable to establish that the beneficiary managed a staff 
of subordinate employees and thus qualifies as a manager. Going on record without supporting documentary 
evidence is 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 Crafi of California, 14 I&N Dec. 190 (Reg. 
Comm. 1972)). Without documentary evidence to support the claim, the assertions of counsel will not satis@ 
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 ofRamirez- 
Sanchez, 17 I&N Dec. 503,506 (BIA 1980). 
On review, the record as presently constituted is not persuasive in demonstrating that the beneficiary will be 
employed in a primarily managerial or executive capacity. For this reason, the petition may not be approved. 
Beyond the findings in the previous decision, the remaining issue in this proceeding is whether the petitioner 
has established that a qualifying relationship exists between the petitioning entity and a foreign entity 
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pursuant to 8 C.F.R. 8 214.2(1)(l)(ii)(G). Although a photocopy of a stock certificate is submitted in support 
of the petitioner's claim that it is the subsidiary of the claimed foreign entity, stock certificates alone are not 
sufficient evidence to determine whether a stockholder maintains ownership and control of a corporate entity. 
The corporate stock certificate ledger, stock certificate registry, corporate bylaws, and the minutes of relevant 
annual shareholder meetings must also be examined 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. 362 (BIA 1986). Without 
full disclosure of all relevant documents, CIS is unable to determine the elements of ownership and control. 
Furthermore, the AAO notes that the petitioner's 2002 Form 1120, U.S. Corporation Tax Return, indicates the 
following ownership on Schedule K: 50%; 50%. The has failed 
to clarify this inconsistent evidence. 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 competent objective evidence pointing to where the truth lies. Matter of 
Ho, 19 I&N Dec. 582, 591-92 (BIA 1988). 
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), affd. 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). 
In visa petition proceedings, the burden of proving eligbility 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.