dismissed L-1A Case: Computer Parts Trading

U.S. Department of Homeland Security 
20 Mass. Ave, N.W., Rm. A3042 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
File: EAC 03 182 50016 Office: VERMONT SERVICE CENTER Date: MAY 1 1 2005 
Petition: Petition for a Nonimmigrant Worker Pursuant to Section 10l(a)(15)(L) of the Immigration 
and Nationality Act, 8 U.S.C. 5 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. 
t ~obert P. Wiemann, ~irdtor 
b 
Administrative Appeals Office 
EAC 03 182 50016 
Page 2 
DISCUSSION: The Director, Vermont 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 seeks to employ the beneficiary temporarily in the United States 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 1101(a)(15)(L). The U.S. petitioner, a corporation organized in the State of New Jersey, is engaged 
in the trading of computer parts. It seeks to employ the beneficiary as its president. The petitioner claims that 
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, and that the petitioner would 
be unable to support a managerial or executive position at the end of its first year of operations based on the 
business plan submitted. 
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 requests reconsideration on this 
matter, and submits a brief statement. 
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 
education, training, and employment qualifies himher to perform the intended 
EAC 03 182 50016 
Page 3 
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. tj 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, withn 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 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. § 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, 
EAC 03 182 5001 6 
Page 4 
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 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 the initial petition, counsel for the petitioner provided numerous documents pertaining to the foreign 
entity's business, as well as a copy of the U.S. petitioner's employer identification number and business 
registration. Counsel failed to submit any of the evidence required under 8 C.F.R. 9 214.2(1)(3). 
Consequently, the director requested additional evidence establishing that the beneficiary was qualified for 
the benefit sought on August 6, 2003. In part, the director requested evidence supporting the petitioner's 
claim that the beneficiary had been acting in a primarily managerial or executive capacity while abroad, and 
that he would continue working in a primarily managerial capacity while in the United States. The director 
asked the petitioner to provide a detailed description of the type of business to be conducted in the United 
States, as well as a detailed statement of the beneficiary's proposed duties in the U.S. as well as any 
subordinate employees. 
In a response dated October 3 1, 2003, the petitioner, through counsel, submitted a detailed letter accompanied 
by some, but not all, of the documentation requested by the director. The following brief statement was 
provided with regard to the beneficiary's proposed duties in the United States: 
The beneficiary will be establishing the business and hiring personnel to conduct sales and 
office duties. Although his duties at the outset may not be entirely managerial in nature at the 
outset, it is expected to be within one year. In this regard, we submit lists of their customer 
and vendor contacts. Once the business is up and running with the hired management and 
staff, the beneficiary intends to return to their parent company [and] only make follow-up 
visits as needed. 
EAC 03 182 50016 
Page 5 
Counsel stated that the U.S. entity is "engaged in the purchase and sales of merchandise," and indicated that it 
will employ "sales staff' responsible for obtaining sales leads and servicing existing customers, and "office 
staff' responsible for accounting and bookkeeping. 
On February 6, 2004 the director denied the petition. The director determined that the evidence in the record 
did not establish that the beneficiary would be employed in a primarily managerial or executive capacity 
while in the United States, nor did the evidence sufficiently establish that the U.S. petitioner would be able to 
support a managerial or executive position at the end of the first year of operations. The AAO will examine 
each of these issues separately. 
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. 9 214.2(1)(3)(ii). In this case, counsel and the petitioner 
failed to provided a detailed description of the beneficiary's proposed duties despite the director's specific 
request to include the number of hours per week he would devote to each duty. The brief description included 
in counsel's October 31, 2003 letter is insufficient to identify with specificity what the beneficiary would 
actually be doing if employed in the United States. 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. Sava, 724 F. Supp. 1103 (E.D.N.Y. 
1989), aff'd, 905 F.2d 41 (2d. Cir. 1990). Failure to submit requested evidence that precludes a material line 
of inquiry shall be grounds for denying the petition. 8 C.F.R. 9 103.2(b)(14). 
Furthermore, counsel asserts in his response to the request for evidence that the beneficiary will eventually be 
performing managerial or executive tasks, although not at the outset. This statement is insufficient to qualify 
the beneficiary for the benefit sought. Furthermore, the only evidence submitted with regard to the 
beneficiary's proposed duties are the statements of counsel provided in his October 31, 2003 letter, which 
claim that the beneficiary is in fact a managerial employee. Conclusory assertions regarding the beneficiary's 
employment capacity are not sufficient. Merely repeating the language of the statute or regulations does not 
satisfy the petitioner's burden of proof. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. at 1108; Alyr Associates, 
inc. v. Meissner, 1997 WL 188942 at *5 (S.D.N.Y.). Finally, the assertions of counsel do not constitute 
evidence. Matter of Obaigbena, 19 IAN 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). Without documentary evidence 
to support the claim, the assertions of counsel will not satisfy the petitioner's burden of proof. 
Though requested by the director, the petitioner did not provide any information regarding the duties and 
positions of the beneficiary's alleged subordinates. As previously stated, any failure to submit requested 
evidence that precludes a material line of inquiry shall be grounds for denying the petition. 8 C.F.R. tj 
103.2(b)(14). Thus, the petitioner has not established that any of the proposed subordinate employees would 
require a bachelor's degree, such that they could be classified as professionals. Nor has the petitioner shown 
that these employees would supervise subordinate staff members or manage a clearly defined department or 
function of the petitioner, such that they could be classified as managers or supervisors. Thus, the petitioner 
has not shown that the beneficiary's subordinate employees would be supervisory, professional, or 
managerial, as required by section 10 1 (a)(44)(A)(ii) of the Act. 
EAC 03 182 50016 
Page 6 
Finally, when a new business is established and commences operations, the regulations recognize that a 
designated manager or executive responsible for setting up operations will be engaged in a variety of 
activities not normally performed by employees at the executive or managerial level and that often the full 
range of managerial responsibility cannot be performed. In order to qualify for L-1 nonimmigrant 
classification during the first year of operations, the regulations require the petitioner to disclose the business 
plans and the size of the United States investment, and thereby establish that the proposed enterprise will 
support an executive or managerial position within one year of the approval of the petition. See 8 C.F.R. 
tj 214.2(1)(3)(v)(C). This evidence should demonstrate a realistic expectation that the enterprise will succeed 
and rapidly expand as it moves away from the developmental stage to full operations, where there would be 
an actual need for a manager or executive who will primarily perform qualifying duties. 
Despite the director's specific requests for a comprehensive description of the petitioner's intended business 
operations and its organizational structure, the petitioner failed to provide sufficient evidence which outlined 
its business plan and organizational hierarchy. Although a lease agreement was submitted along with 
photographs of the alleged business location, the identified premises appears to merely be a residential 
dwelling. In fact, the personal documentation submitted on behalf of the beneficiary indicates that this same 
address is the beneficiary's home address. 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 competent objective evidence pointing to where the truth lies. Matter 
of Ho, 19 I&N Dec. 582, 591-92 (BIA 1988). Consequently, it appears that the petitioner is merely operating 
a home-based business from the beneficiary's residence. This evidence is insufficient to credibly suggest that 
the petitioner intends to operate a legitimate and flourishing business as required by the regulations. 
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, nor does the record establish that the petitioner will 
be able to support a managerial or executive position after the first year of operations. For this reason, the 
petition may not be approved. 
Beyond the decision of the director, the record contains insufficient evidence to establish that the overseas 
company employed the beneficiary in a primarily managerial capacity. Although the petition makes reference 
to the beneficiary's overseas position as "Vice President," the petitioner has provided no evidence 
substantiating this claim. A mere title is not enough to establish that the beneficiary has been performing 
managerial or executive duties. Going on record without supporting documentary evidence is not sufficient 
for purposes of meeting the burden of proof in these proceedings. Matter of Treasure Crafi of California, 
14 I&N Dec. at 190. 
In addition, the evidence is not persuasive that a qualifying relationship exists between the petitioner and a 
foreign entity as required by 8 C.F.R. 9 214.2(1)(l)(ii)(G). Although the petitioner claims that the beneficiary 
and his spouse each own 50 percent of both entities, the required documentary evidence to substantiate this 
claim has not been provided. As general evidence of a petitioner's claimed qualifying relationship, 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 
EAC 03 182 500 16 
Page 7 
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. As the appeal will be dismissed on the grounds discussed, 
these issues need not be addressed further. As previously stated, going on record without supporting 
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. 
Furthermore, the petition suggests that the beneficiary and his spouse each own 50 percent of the foreign 
entity and 50 percent of the U.S. petitioner. The regulation at 8 C.F.R. 9 214.2(1)(3)(vii) states that if the 
beneficiary is an owner or major stockholder of the company, the petition must be accompanied by evidence 
that the beneficiary's services are to be used for a temporary period and that the beneficiary will be transferred 
to an assignment abroad upon the completion of the temporary services in the United States. In this matter, 
the petitioner has not furnished evidence that the beneficiary's services are for a temporary period and that the 
beneficiary will be transferred abroad upon completion of the assignment. In addition, the fact that both 
owners of the original foreign corporation reside in the United States raises the question of whether the parent 
organization is still doing business so that a qualifying relationship exists pursuant to 8 C.F.R. 
214.2(1)(l)(ii)(G). As the appeal will be dismissed on the grounds discussed, these issues need not be 
examined further. 
As discussed briefly in the body of this decision, a final issue is whether the petitioner has established that it 
has secured sufficient physical premises to house the new office. The petitioner has submitted a copy of its 
lease. In this matter, the petitioner has not described its anticipated space requirements for its import business 
and the lease in question does not specify the amount or type of space secured. In addition, it is confirmed 
that the leased premises doubles as the beneficiary's home residence. Based on the insufficiency of the 
information furnished, it cannot be cpncluded that the petitioner has secured sufficient space to house the new 
office. 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), aff. 345 F.3d 683 
(9th Cir. 2003); see also Dor v. INS, 891 F.2d 997, 1002 n. 9 (2d Cir. 1989)inoting 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. 9 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.