dismissed L-1A Case: Computer Retail

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PUBLIC COPY 
U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. A3042 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
File: SRC 04 032 50508 Office: TEXAS SERVICE CENTER  ate: HAY 0 4 2m 
Petition: 
 Petition for a Nonimmigrant Worker Pursuant to Section 10 1 (a)(] 5)(L) of the Immigration 
and Nationality Act, 8 U.S.C. (j 1 101(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. 
az 
dministrative Appeals Office 
< SRC 04 032 50508 
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 presidentlgeneral 
manager as an L-1 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 under the laws of the State of Florida and is engaged in the retail sale of computer hardware and 
software. The petitioner claims that it is the subsidiary of Distribuidora Aspire Computer, C.A., located in 
Caracas, Venezuela. 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. 
Upon the director's initial review of the matter, she sent the petitioner a request for additional evidence on 
February 6, 2004. Specifically, the director requested that the petitioner submit a list of the three employees 
of Aspire Distributions, Inc., including their job titles. 
In response, counsel for the petitioner submitted a letter dated February 6, 2004, which listed four employees, 
their job titles, and a brief description of their duties. Counsel did not include the beneficiary on this list of 
the petitioner's current employees. 
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. 
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 asserts in its letter dated 
March 12,2004 that (1) the size of the petitioner is "irrelevant" for purposes of whether a beneficiary qualifies 
for L-1 status as a manager or executive, (2) the beneficiary "supervises the development of activities of all 
the organization specifically two managers and their subordinates," and (3) delays in the issuance of the 
beneficiary's L-1 visa only allowed "approximately six weeks to establish a new office." In support of this 
assertion, the petitioner resubmits copies of the beneficiary's L-1 visa documents, passport pages, and 1-94 
Departure Record Card. 
Upon review and for the reasons discussed herein, counsel's assertions are not persuasive and, thus, the AAO 
will dismiss the appeal. 
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. 
SRC 04 032 50508 
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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 
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. 5 214.2(1)(14)(ii) also provides that a visa petition, which involved the opening of a 
new office, may be extended by filing a new Form 1-129, accompanied by the following: 
(A) 
 Evidence that the United States and foreign entities are still qualifying organizations 
as defined in paragraph (l)(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 managerial or executive 
capacity; and 
(E) 
 Evidence of the financial status of the United States operation. 
The primary issue in the present matter is whether the beneficiary will be employed by the United States 
entity in a primarily managerial or executive capacity. 
Section 10 1 (a)(44)(A) of the Act, 8 U.S.C. 5 1 101(a)(44)(A), defines the term "managerial capacity" as an 
assignment within an organization in which the employee primarily: 
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 SRC 04 032 50508 
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(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 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. 3 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. 
On reviewing the petition and the evidence, the petitioner has not established that the beneficiary has been 
employed in a 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. !j 214.2(1)(3)(ii). The petitioner's description of the job 
duties must clearly describe the duties to be performed by the beneficiary and indicate whether such duties are 
either in an executive or managerial capacity. Id. The petitioner must specifically state whether the 
beneficiary is primarily employed in a managerial or executive capacity. A beneficiary may not claim to be 
employed as a hybrid "executivelmanager" and rely on partial sections of the two statutory definitions. If a 
petitioner chooses to represent the beneficiary as being both an executive and a manager, it must then 
SRC 04 032 50508 
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establish that a beneficiary meets each of the four criteria set forth in the statutory definition for executive and 
the statutory definition for manager. 
In addition, rather than providing a specific description of the beneficiary's duties, the petitioner generally 
paraphrased the statutory definition of both managerial and executive capacity. See section 101(a)(44)(A) 
and (B) of the Act, 8 U.S.C. 5 1101(a)(44)(A) and (B). For instance, the petitioner depicted the beneficiary as 
"plan[ning], develop[ing,] and establish[ing] policies and objectives," "[s]upervis[ing] and direct[ing] 
activities of subordinate managers and personnel," and "[e]stablish[ing] hiring and firing standards and 
administ[ration of the] same." However, conclusory assertions regarding the beneficiary's employment 
capacity are not sufficient to meet the petitioner's burden of proof. Merely repeating (or paraphrasing) 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. 1103, 1108 (E.D.N.Y. 1989), aff'd, 905 F. 2d 41 (2d. Cir. 1990); Avyr Associates Inc. v. 
Meissner, 1997 WL 188942 at *5 (S.D.N.Y.). 
Further, these vague and nonspecific descriptions of the beneficiary's duties fail to demonstrate what the 
beneficiary does on a day-to-day basis. For example, the petitioner states that the beneficiary's duties include 
"plan[ning], develop[ing,] and establish[ing] policies and objectives," "[c]oordinat[ing] functions and 
operations between division and departments," "[dlirecting and coordinate[ingj financial and fiscal policies," 
and "[g]lan[ning] and develop[ing] public relations policies." The petitioner did not, however, define the 
petitioner's policies and objectives or provide details on what functions and operations the beneficiary will 
coordinate. 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. Sava, 724 F. Supp. 1103 (E.D.N.Y. 1989), afyd, 905 F.2d 
41 (2d. Cir. 1990). 
Furthermore, while the petitioner asserts that the beneficiary is managing a subordinate staff, the record does 
not establish that the subordinate staff is composed of supervisory, professional, or managerial employees. 
See section lOl(a)(44)(A)(ii) of the Act. For instance, as the director noted in her decision and as indicated 
on the Petition for a Nonimmigrant Worker (Form I-129), the record only indicates that three persons were 
employed by the petitioner at the time the petition was filed on November 13, 2003. As the beneficiary was 
physically present in the U.S. in L-1A status by that time, it appears that one of the three claimed employees 
was the beneficiary. Therefore, at the time the petition was filed it can be assumed that the beneficiary had at 
most two subordinate employees and not four as counsel for the petitioner claims. Consequently, besides the 
beneficiary, it is unclear from the record which two employees, if any, were employed at that time as well as 
what their job titles and duties were. Absent this evidence, it would appear that the beneficiary was either the 
sole employee or at most a first-line supervisor. A first-line supervisor will not be considered to be acting in a 
managerial capacity merely by virtue of his or her supervisory duties unless the employees supervised are 
professional. Section 101(a)(44)(A)(iv) of the Act. 
 Because the record fails to demonstrate that the 
beneficiary is primarily supervising a staff of professional employees, the beneficiary cannot be deemed to be 
primarily acting in a managerial capacity. 
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Moreover, the assertions of counsel in its letters dated February 6, 2004 and March 12, 2004 are the only 
evidence that the petitioner employed anyone besides the beneficiary. 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). 
Absent documentary evidence that the petitioner employed anyone other than the beneficiary at the time the 
petition was filed, the AAO is left to presume that the beneficiary is actually the one responsible for taking 
orders, making sales calls, showing samples, and negotiating purchase prices. If this is the case, he is 
performing tasks necessary to provide a service or product and these duties will not be considered managerial 
or executive in nature. 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). 
Whether the petitioner has one, three, or five employees, counsel is incorrect in asserting that the size of the 
petitioner is completely irrelevant. While a company's size alone, without taking into account the reasonable 
needs of the organization, may not be the determining factor in denying a visa to a multinational manager or 
executive, it is appropriate for CIS to consider the size of the petitioning company provided it is done in 
conjunction with other relevant factors, such as a company's small personnel size, the absence of employees 
who would perform the non-managerial or non-executive operations of the company, or a "shell company" 
that does not conduct business in a regular and continuous manner. See 5 101(a)(44)(C) of the Act, 8 U.S.C. 
9 1 101(a)(44)(C). See, e.g, Systronics Corp. v. INS, 153 F. Supp. 2d 7, 15 (D.D.C. 2001). 
 The size of a 
company may be especially relevant when CIS notes discrepancies in the record, such as the exact number of 
employees of the petitioner, and fails to believe that the facts asserted are true. Id. 
Overall, the record is not persuasive in demonstrating that the beneficiary has been or will be employed in a 
primarily managerial or executive capacity. Counsel indicates that the petitioner continues to expand and has 
already hired additional employees. However, 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). Furthermore, 8 C.F.R. 5 214.2(1)(3)(v)(C) allows the intended United States 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 is not 
sufficiently operational after one year, 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. 
Accordingly, the petitioner has not established that the beneficiary will be employed in a primarily or 
managerial capacity, as required by 8 C.F.R. 5 214.2(1)(3). 
Counsel for the petitioner does assert both in the record and again on appeal that the beneficiary was not 
provided the one-year period to establish the U.S. entity due to delays in the issuance of the beneficiary's L-1 
visa. While it is recognized that the U.S. Department of State has had lengthy delays in issuing visas to 
certain individuals, it is understood that in most cases it rarely takes more than six weeks for an applicant to 
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obtain a nonimmigrant visa appointment and have his or her nonimmigrant visa application processed. The 
evidence presented by the petitioner, however, does not prove that the beneficiary experienced delays in the 
issuance of his visa; the beneficiary, for example, may simply have waited many months before making an 
appointment to submit his visa application to the U.S. Embassy. It is also possible that the U.S. Embassy 
requested additional information and documentation that the beneficiary failed to deliver to the Embassy in a 
timely manner. Absent evidence to the contrary, the AAO cannot consider this issue as it pertains to the 
petitioner's failure to meet the requirements of 8 C.F.R. 5 2 14.2(1)(14)(ii). 
Moreover, while counsel would make it appear the beneficiary was unable to enter the United States until 
September 29, 2003, it appears from the record that the beneficiary was actually present in the United States 
prior to his entry in L-1A status for business related to the creation and establishment of the U.S. entity. 
Specifically, the petitioner indicated on Form 1-129 that the beneficiary was last admitted to the United States 
on July 3, 2002 (1-94 information contrary to the included 1-94 card (- 
showing a September 29, 2003 admission date in L-1 status. In addition, the petitioner's incorporation 
documents show that the beneficiary was present in the United States on July 
the Agent for Service of Process document signed by the beneficiary before 
Public in the State of Florida. While the beneficiary may only have been present in the United States for a 
short time in what is assumed was B-1 nonimmigrant status, his presence and B-1 status would still have 
provided him the opportunity to establish the U.S. entity and start its business operations more than one year 
and four. months prior to the expiration of his L-1A status on November 14, 2003. Absent evidence to the 
contrary, it is also possible that the beneficiary remained in the United States for some time in B-l status or 
even made subsequent and frequent visits to the United States in B-1 status before even applying for his L-1 
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visa in Venezuela. Therefore, as stated above, without evidence from the petitioner proving othehvise, the 
AAO cannot consider the delayed visa issuance claim as it pertains to the petitioner meeting the requirements 
of 8 C.F.R. 5 214.2(1)(14)(ii). 
Beyond the decision of the director, another evidence issue in this matter is the lack of certified translations 
for any of the Spanish language documents submitted. Because the petitioner failed to submit certified 
translations of the documents, the AAO cannot determine whether the evidence supports the petitioner's 
claims that the foreign, parent company is a legal entity. See 8 C.F.R. 5 103.2(b)(3). Accordingly, the 
evidence is not probative and will not be accorded any weight in this proceeding. Absent this evidence, the 
petitioner has failed to prove that "the United States and foreign entities are still qualifying organizations as 
defined in [8 C.F.R. 5 2 14.2(1)(l)(ii)(G)]." 8 C.F.R. 9 2 14.2(1)(14)(ii)(A). 
Finally, as required by 8 C.F.R. 9 214.2(1)(14)(ii)(B), the petitioner has also failed to show that the U.S. entity 
has been "doing business" even for the few months the beneficiary has been present in the United States. 
Specifically, the copy of the lease provided by the petitioner is unsigned, which raises the issue of whether the 
U.S. entity ever secured the required physical premises to operate its business. In addition, the two sales 
invoices included were dated August 8, 2003 and September 15, 2003, covering only two months out of the 
year, and no sales invoices were submitted for the period of time following the beneficiary's admission to the 
United States in L-1 status on September 29, 2003. Moreover, while only two bank statements were 
submitted (July 2003 and August 2003), neither statement shows any substantial business transactions. In 
fact, the July 2003 statement shows a questionable transaction where the U.S. entity was wired $98,713.50 by 
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its "parent company" but .subsequently debited nearly the entire amount, $98,000.00, the very next day for 
unknown reasons or purposes. The August 2003 statement also fails to show any transaction that might 
correspond to the August 8,2003 invoice. 
As indicated above, the regulation at 8 C.F.R. 8 214.2(1)(3)(v)(C) allows the intended United States operation 
one year within the date of approval of the petition to establish the new office. Furthermore, at the time the 
petitioner seeks an extension of the new office petition, the regulations at 8 C.F.R. $ 214.2(1)(14)(ii)(B) 
requires the petitioner to demonstrate that it has been doing business for the previous year. The term "doing 
business" is defined in the regulations as "the regular, systematic, and continuous provision of goods and/or 
services by a qualifying organization and does not include the mere presence of an agent or office of the 
qualifying organization in the United States and abroad." 8 C.F.R. 5 214.2(1)(l)(ii). There is no provision in 
CIS regulations that 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. 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 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. 5 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.