dismissed L-1A Case: Computer Programming

U.S. Citizenship 
and Immigration 
File: 
IN RE: 
Petition: 
U.S. Department of Homeland Security 
20 Massachusetts Ave., N.W., Rm. A3000 
Washington, DC 20529 
SRC 02 05 1 50479 
 Office: TEXAS SERVICE CENTER 
 Date: jul 0 7 2m 
Petitioner: 
Beneficiary: 
- 
Petition for a Nonimmigrant ' 
- Worker Pursuant to Section 101(a)(15)(L) of the 
. ,. ,> , 
 ..A- 
Immigration and Nationality Act, 8 U.S.C. $ 1101(a)(15)(L) 
ON BEHALF OF PETITIONER: 
SELF-REPRESENTED 
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. 
SRC 02 05 1 50479 
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 ths nonimmigrant petition seelung to employ the beneficiary in the position of corporate 
president 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 petitioner is engaged in website 
design, database administration and computer programming, and the petitioner claims to be a subsihary of 
the parent company, located in Tel Aviv, Israel. The petitioner seeks to 
employ the beneficiary for a period of one year to start a new office in the United States. 
The director denied the petition, concluding that the petitioner did not establish the following three 
requirements: 1) the petitioner failed to demonstrate that sufficient housing for the new office has been 
secured; 2) the petitioner failed to establish that the both the position abroad with the foreign entity and the 
position in the United States are positions of executive capacity; and 3) the petitioner failed to demonstrate 
that the intended United States operation, within one year of the approval of the petition, will support an 
executive or managerial position. 
On appeal, counsel for the petitioner asserts that the "INS misapplied law and regulations." Counsel asserts 
that the petitioner has secured sufficient physical premises for the new office; that the U.S. company has 
one year from the approval of the petition to support an executive or managerial position which must be 
established at the time of filing an extension petition; and the petition sufficiently outlined the scope and 
financial goals of the U.S. entity. Counsel also asserts that the petition was denied for reasons that were 
not specifically addressed in a request for evidence "which would have put the petitioner on notice that 
further discussion or articulation of these points would have been of assistance to the examiner in 
adjudicating the underlying petition." 
To establish eligibility under section 101(a)(15)(L) of the Act, the petitioner must meet certain criteria. 
Specifically, within three years preceding the beneficiary's application for admission into the United 
States, a firm, corporation, or other legal entity, or an affiliate or subsidiary thereof, must have employed 
the beneficiary 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. 
The regulation at 8 C.F.R. 5 214.2(1)(3) fiu-ther 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. 
SRC 02 05 1 50479 
Page 3 
(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 services in the United States; however, the work in the United States 
need not be the same work which the alien performed abroad. 
In addition, the regulation at 8 C.F.R. 8 214.2(1)(3)(~) states 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, withln 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: 
((1)) 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 first issue in this proceeding is whether the petitioner has secured sufficient physical premises to house 
a new office. 
In the initial 1-129 
 , 2001, the petitioner submitted a sublease for its initial 
business premise at 
 Hallandale, FL 33009. The sublease indicates a space of 
843 square feet. The director's decision stated, "a sub-lease between the petitioner and beneficiary for what 
appears to be a residential apartment does not constitute sufficient premises for a new office." 
On appeal, counsel for the petitioner asserts that even though the initial premises of the petitioner corporation 
are located at a residential address, thls does not violate the regulations at 8 C.F.R. 214.2(1)(3)(v)(A). 
Counsel submits the Zoning and Land Development Code of the City of Hallandale Beach, Florida which 
suggests that residential homes can be utilized for an occupation. Counsel further states, "the premises are 
sufficient when taking into account that this is a new office petition; the petitioner is in fact an infant 
corporation." 
SRC 02 05 1 50479 
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Upon review of the lease, it appears that the lease states that the space may be used for commercial purposes. 
In addition, it may be possible that an apartment is sufficient business premises for a company, however, 
since the petitioner has not described its anticipated space requirements for its computer business, the 
petitioner has not established that it has secured sufficient physical premises to house the new office. The 
lease indicates that the space is 843 square feet but since the petition does not specifically indicate what 
type of premises are required for the business, it is not clear if this square footage is appropriate for the 
type of business the petitioner wishes to open. Furthermore, the petition indicates that the beneficiary 
plans to hire five employees soon after receiving the L-1 classification. It is hard to imagine that a small 
apartment is adequate space for six employees (including the beneficiary) to work. Based on the 
insufficiency of the information furnished, it cannot be concluded that the petitioner has secured sufficient 
space to house the new office. For this reason, the petition may not be approved. 
The second issue in this proceeding is whether the beneficiary has been employed in a primarily executive 
capacity for the foreign entity and whether the beneficiary will be employed in an executive capacity in 
the United States. 
Section 101(a)(44)(A) of the Act, 8 U.S.C. 9 1101(a)(15)(L), 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; 
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; 
. . . 
111. 
 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 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. § 1 101(a)(44)(B), provides: 
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; 
SRC 02 05 1 50479 
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ii. 
 establishes the goals and policies of the organization, component, or function; 
iii. 
 exercises wide latitude in discretionary decision-malung; and 
iv. 
 receives only general supervision or direction from higher level executives, the 
board of directors, or stockholders of the organization. 
In the continuation sheet of the 1-129 petition, the petitioner confirms that the beneficiary was employed bm 
(the claimed parent company) in Israel in the position of managmg director. 
stated "as one of only two Managing Directors (together with the firm's founder, MI-= 
[the beneficiary] had essentially unlimited discretionary decision-malung authority there, 
to all business and fiscal related matters, including matters such as budgeting; revenue 
projections; credit policies; fiscal administration; personnel matters and the like." 
On February 4, 2002, the director issued a notice requesting additional information of the beneficiary's 
employment abroad with the parent company. Specifically, the director requested an organizational chart, 
evidence of employment of the independent contractors, and a detailed, definitive description (including 
the percentage of time spent on each duty) of the beneficiary's foreign employment. 
In the response dated March 26, 2002, the petitioner stated that the beneficiary held a position of executive 
capacity at the foreign entity as one of two managing directors. The petitioner goes on to state, "the majority 
of [the beneficiary's] time as Managng Director in Israel was specifically in sales and marketing matters and 
customer development. [The beneficiary] indicates to me that probably 75% of his time was involved in 
increasing sales, and developing a marketing strategy to distinguis from 
its competitors. The remaining 25% of his time was involved in such internal matters as budget and revenue 
matters; coordination with outside Chartered Accountant; credit and pricing strateges; and personnel items." 
In the denial of thls petition, the director stated: 
[Tlhe petitioner through counsel stressed that both the proposed position of president and 
past position of managing director were executive positions. That is, in both these situations 
the beneficiary was and would be functioning in an executive capacity. However, the 
petitioner did not submit evidence that the beneficiary primarily directed the management of 
the foreign organization or a major component or function of that organization. 
On appeal, counsel asserts that "it has become profoundly obvious in recent years that INS, wishing to deny 
I-129L petitions filed by what it views as small businesses (although there is no statutory or regulatory 
prohibition on small business filing I-129L petitions), has used as its weapon of choice the word primarily." 
On appeal, the petitioner did not provide any additional evidence to establish that the beneficiary directed 
the management of the foreign organization. 
The definitions of executive and managerial capacity have two parts. First, the petitioner must show that 
the beneficiary performs the high level responsibilities that are specified in the definitions. Second, the 
petitioner must prove that the beneficiary primarily performs these specified responsibilities and does not 
spend a majority of his or her time on day-to-day functions. Champion World, Inc. v. INS, 940 F.2d 1533 
(Table), 1991 WL 144470 (9th Cir. July 30, 1991). 
SRC 02 05 1 50479 
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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. 1 103 (E.D.N.Y. 1989), afyd, 905 F.2d 41 (2d. 
Cir. 1990). 
Reciting the beneficiary's vague job responsibilities or broadly-cast business objectives is not sufficient; 
the regulations require a detailed description of the beneficiary's daily job duties. The petitioner has 
failed to provide any detail or explanation of the beneficiary's activities in the course of his daily routine. 
The actual duties themselves will reveal the true nature of the employment. Id. 
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. Id.; 
Avyr Associates, Inc. v. Meissner, 1997 WL 188942 at *5 (S.D.N.Y.). 
The petitioner has failed to establish any clear distinctions between the proposed qualifying and non- 
qualifying duties of the beneficiary. A critical analysis of the nature of the petitioner's business 
undermines counsel's assertion that the subordinate employees relieve the beneficiary from performing 
non-qualifying duties. Rather, it appears from the record that the parent company is composed of two 
managing directors (one of which is the beneficiary), one development team member, one administrator 
(for credit/accounts payable and saleslmarketing), one office administrator, three programmers and one 
art designer. The only individual performing any sales and marketing-related functions, personnel 
operations, and budget and revenue operations is the beneficiary; the other managing director and the 
administrators. Since the administrators have been described as performing only administrative functions 
for the beneficiary, it can only be assumed, and has not been proven otherwise, that the beneficiary is 
performing all other sales and marketing functions, including devising marketing plans, contacting clients 
and advertisers, performing any public relations tasks, and budget operations such as preparing the payroll 
and budget projections. Based on the record of proceeding, the beneficiary's job duties are principally 
composed of non-qualifying duties that preclude him from functioning in a primarily managerial or 
executive role. 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). 
The petitioner has not established that the beneficiary was employed by the foreign organization in a 
qualifying managerial or executive capacity. Therefore, the appeal will be dismissed. 
In regards to the beneficiary's position in the United States, the petition states that the beneficiary 
the position of initial corporate president to open a new office 
In the petition, the petitioner describes the proposed duties of the beneficiary in the United States as the 
following: 
Developing and establishing all corporate policies and objectives; planning business 
objectives; and developing all the company's policies, functions and operations; and 
establishing responsibilities and procedures in order to attain corporate objectives, which 
objectives, [the beneficiary], himself will establish. His duties as Corporate President further 
include directing the financial programs of the Florida subsidiary to ensure the availability of 
sufficient funds at all times to attain desired objectives. In addition, in his role as Corporate 
SRC 02 05 1 50479 
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President, [the beneficiary] will have the authority to hire and fire personnel, as he dreams 
fit.. .. Specifically, [the beneficiary] will have singng authority, singly, for the corporate 
bank account of the Florida subsidiary, and will have the authority, singly, to legally bind 
.S. subsid~ary] in any and all of its legal 
contracts, agreements and business transactions with any and all third parties .... [the 
implementing its growth strategy, with the goal in mind of laylng a solid groundwork for 
corporate accomplishments, profitability and growth for the Florida subsidiary. Essentially, 
none of his time will be spent directly providing the good and services of the Florida 
Subsidiary." 
On February 4, 2002, the director issued a notice requesting additional information of the United States 
business including: 1) evidence of the funding or capitalization of the U.S. company; and 2) proposed 
staffing levels of the new business with position titles and duties. 
In the response dated March 26, 2002, the petitioner stated, "in summary, staffing levels have nothing to do 
with your adjudication process, either because you are using a concept that pertains to the adjudication of 
I-140's, or because you are getting ready to deny ths petition on the basis of the position of corporate 
president not meeting the concept of managerial capacity, on which concept the petition was not filed, but 
rather was filed under the definition of executive capacity." The petitioner also refers back to the initial 
petition which claimed that the beneficiary would hire three people shortly after the approval of the L-1 
petition. The petitioner states "it is those people who will primarily provide the services of the petitioner 
corporate, namely, web design, database administration, all manner of computer programming salutation, 
trouble shooting, etc." The petitioner maintains that the beneficiary will direct the U.S. company in an 
executive capacity. 
In the denial, the director indicated, "the petitioner through counsel stressed that both the proposed position of 
president and past position of managing director were executive positions. That is, in both these situations 
the beneficiary was and would be hctioning in an executive capacity.. . . nor did [the petitioner] explain in 
sufficient detail how the proposed position of president in the US start-up web design company would be 
primarily directing the management of the organization or a major component or function of that 
organization." 
On appeal, counsel asserts: 
[Ylou are presuming, before the company is even allowed to start doing business and before 
the president is even allowed to report for work for the first day, that the alien beneficiary 
himself will be primarily providing good or services. . . . [the] petitioner agrees that other 
people will have to be involved in the company, or else the conclusion is inescapable that the 
petitioner himself or herself will primarily provide the goods or services; however, the time 
to prove that is at the extension stage one year later, when INS will have an abundant 
opportunity to find out if the petitioner corporate in fact has workers on hand who primarily 
produce the good or services of the petitioner corporation. 
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). On review, the petitioner has 
SRC 02 05 1 50479 
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provided a vague and nonspecific description of the beneficiary's duties that fails to demonstrate what the 
beneficiary does on a day-to-day basis. For example, the petitioner states that the beneficiary's duties 
include "developing and establishing all corporate policies and objectives," "planning business objectives," 
and "developing all the company's policies, functions and operations." The petitioner did not, however, 
define the beneficiary's goals, policies, or clarify who actually provides the services in order to develop a 
company that provides computer services. 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. 190 (Reg. Comm. 1972). 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. Suva, 724 F. 
Supp. at 1103. Since the petitioner fails to establish that the day to day duties of the beneficiary will be 
primarily of executive in nature, this appeal will be dismissed. 
The third issue in this proceeding is whether the petitioner has demonstrated that the intended U.S. 
operation, within one year of the approval of the petition, will support an executive or managerial 
position. 
On February 24, 2002, the director requested evidence of the funding or capitalization of the U.S. 
company, such as copies of wire transfers showing transfers of funds from the foreign organization; 
evidence of financial resources committed by the foreign company; copies of bank statements; profit and 
loss statements or other accountant's reports to establish a qualifying relationship. The petitioner did not 
provide any of the requested evidence except a U.S. bank account statement. 
In the response to the request for evidence, the petitioner submitted a bank statement for the U.S. entity as 
of February 28, 2002 indicating a closing balance of $8,700; a transaction history dated February 22, 
2002, indicating total deposits of $8,700; and a bank statement indicating that the U.S. entity opened an 
account on February 21,2002 with a deposit of $8,700. 
The director determined that the petitioner had not demonstrated that the intended U.S. operation, within 
one year of the approval of the petition, will support an executive or managerial position. The director 
determined that the petitioner had not adequately defined the proposed nature of the office, and had not 
realistically described the scope of the entity, its organizational structure and its financial goals. 
On appeal, counsel argues that since this issue was not raised in a request for evidence from the service 
center, the petitioner did not have an opportunity to respond to the service's concern. Furthermore, the 
petitioner asserts that these issues were discussed at length in the initial petition. 
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. 3 214.2(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 
SRC 02 05 1 50479 
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operations, where there would be an actual need for a manager or executive who will primarily perform 
qualifylng duties. 
In addition, if a petition indicates that a beneficiary is coming to the United States to open a "new office," 
it must show that it is ready to commence doing business immediately upon approval. At the time of 
filing the petition to open a "new office," a petitioner must affirmatively demonstrate that it has acquired 
sufficient physical premises to commence business, that it has the financial ability to commence doing 
business in the United States, and that it will support the beneficiary in a managerial or executive position 
within one year of approval. See generally, 8 C.F.R. 
 214.2(1)(3)(~). If approved, the beneficiary is 
granted a one-year period of stay to open the "new office." 8 C.F.R. § 214.2(1)(7)(i)(A)(3). At the end of 
the one-year period, when the petitioner seeks an extension of the "new office" petition, the regulation at 
8 C.F.R. 5 214.2(1)(14)(ii)(B) requires the petitioner to demonstrate that it has been doing business "for 
the previous year" through the regular, systematic, and continuous provision of goods or services. See 8 
C.F.R. 3 214.2(1)(l)(ii)(H) (defining the term "doing business"). The mere presence of an agent or office 
of the qualifylng organization will not suffice. Id. 
Furthermore, as contemplated by the regulations, a comprehensive business plan should contain, at a 
minimum, a description of the business, its products andlor services, and its objectives. See Matter of Ho, 
22 I&N Dec. 206, 213 (Assoc. Comm. 1998). Although the precedent relates to the regulatory 
requirements for the alien entrepreneur immigrant visa classification, Matter of Ho is instructive as to the 
contents of an acceptable business plan: 
The plan should contain a market analysis, including the names of competing businesses 
and their relative strengths and weaknesses, a comparison of the competition's products 
and pricing structures, and a description of the target market/prospective customers of the 
new commercial enterprise. The plan should list the required permits and licenses 
obtained. If applicable, it should describe the manufacturing or production process, the 
materials required, and the supply sources. The plan should detail any contracts executed 
for the supply of materials and/or the distribution of products. It should discuss the 
marketing strategy of the business, including pricing, advertising, and servicing. The plan 
should set forth the business's organizational structure and its personnel's experience. It 
should explain the business's staffing requirements and contain a timetable for hiring, as 
well as job descriptions for all positions. It should contain sales, cost, and income 
projections and detail the bases therefore. Most importantly, the business plan must be 
credible. 
Id. 
Upon review, the petitioner has not submitted sufficient evidence to establish that the intended United 
States operations, within one year of approval, will support an executive or managerial position. 
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), 
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Page 10 
afyd. 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 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 appeal will be dismissed. 
ORDER: The appeal is dismissed.