dismissed L-1A Case: Computer Services

identieing data dekted to 
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inmion of ponooPl +=Y 
U.S. Department of Homeland Security 
20 Massachusetts Ave., N.W., Rm. 3000 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
Services 
File: WAC 07 240 5 1476 Office: CALIFORNIA SERVICE CENTER Date: JUL 0 8 ZXH3 
Petition: 
 Petition for a Nonimmigrant Worker Pursuant to Section 10 1 (a)(15)(L) of the Immigration 
and Nationality Act, 8 U.S.C. § 1 101 (a)(15)(L) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
Thls 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 huther inquiry must be made to that office. 
n w Robert P. Wiemann. Direc r 
il Administrative ~~~eals &ice 
WAC 07 240 5 1476 
Page 2 
DISCUSSION: The Director, California Service Center, denied the petition for a nonimmigrant visa. The 
matter is now before the Administrative Appeals Office (AAO) on appeal. The AAO will dismiss the appeal. 
The petitioner filed this nonimmigrant petition seeking to extend its authorization to employ its 
PresidentIChief Executive Officer as an L-1A nonirnrnigrant intracompany transferee pursuant to section 
101 (a)(15)(L) of the Immigration and Nationality Act (the Act), 8 U.S.C. 9 1 101(a)(15)(L). The petitioner, an 
Arizona limited liability company, claims to be an affiliate of MacKenzie & Sons Technologies Ltd. located 
in Calgary, Canada. The petitioner states that it provides personalized computer services to business and 
residential clients. The beneficiary was initially granted a one-year period in L-1A status in order to open a 
new office in the United States, and the petitioner now seeks to extend the beneficiary's employment for a 
two-year period. 
The director denied the petition concluding that the petitioner did not establish that that the beneficiary would 
be employed 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, the petitioner submits an affidavit from the 
beneficiary, who seeks to clarify the nature of his duties for the United States company. 
To establish eligibility for the L-1 nonirnrnigrant 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. 3 214.2(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 hider to perform the intended 
WAC 07 240 5 1476 
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. fj 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 1-1 29, 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 sole issue addressed by the director is whether the petitioner established that the beneficiary would be 
employed by the United States entity in a 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, 
functions at a senior level within the organizational hierarchy or with respect to the 
hction 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 
WAC 07 240 5 1476 
Page 4 
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. 5 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. 
The nonimrnigrant petition was filed on August 13, 2007. In a letter dated August 1, 2007, the petitioner 
described the beneficiary's duties as follows: 
As PresidentICEO, he will continue to be responsible for the continued growth of the office. 
He has responsibility for expanding the company's presence in the U.S. through the 
development, management and enhancement of sales, marketing, training and customer 
support functions. In addition, he is responsible for supervising staff in the U.S. His 
responsibilities include day-to-day discretionary authority in coordinating and directing the 
work of his staff, as well as evaluation of their performance, and hiring and firing of 
personnel. [The beneficiary] has played a critical role in the company's expansion, and his 
continued presence is essential [to] our future growth plans. 
The petitioner stated that the company has three employees including the beneficiary, a secretaryldispatcher 
and a computer technician. The petitioner indicated that it had contracted another person to "do marketing for 
commercial clients and yearly contract clients." The petitioner attached a "marketing agreement" between the 
company and -, who was hired to provide 40 hours of marketing services between June 29, 
2007 and July 29,2007 for a fee of $950.00. 
On August 16, 2007, the director requested additional evidence to establish that the beneficiary would be 
employed in a primarily managerial or executive capacity under the extended petition. Specifically, the 
director requested: (1) a more detailed description of the beneficiary's duties, the percentage of time he 
devotes to each of the listed duties, and job titles and position descriptions for all employees under his 
supervision; (2) copies of the petitioner's state quarterly wage reports for the last four quarters; (3) a list of all 
of the U.S. company's employees, including their names, job titles, beginning and end dates of employment 
and source of remuneration; (4) an organizational chart for the U.S. company; (5) a list of the specific goals 
and policies established and discretionary decisions exercised by the beneficiary during the previous six 
WAC 07 240 5 1476 
Page 5 
months; and, (5) a specific day-to-day description of the duties the beneficiary has performed over the last six 
months. 
In a response dated November 5, 2007, the petitioner provided the following position description for the 
beneficiary: 
[The beneficiary's] responsibilities include: (1) development, management and enhancement 
of sales, marketing, and customer support functions (70%); and (2) supervision and training 
of U.S. staff (30%). His responsibilities include day-to-day discretionary authority in 
coordinating and directing the work of his staff, as well as evaluation of their erformance 
and hiring and firing of personnel. [The beneficiary] directly supervises a 
(Computer Technician) and (Cold Call Specialist). He is currently interviewing 
for second Computer Technician, and anticipates hiring a third Computer technician within 
the next six months. 
As PresidentICEO, [the beneficiary] directs the entire management of the U.S. company, 
establishes the goals and policies of the company, exercises wide latitude in discretionary 
decision-making and is accountable only to himself as the Managing Member of the LLC. 
Over the last six months, [the beneficiary] has established a network of contracts for the 
purpose of increasing the Company's business, established a training program for the 
computer technicians, developed a quality assurance program to ensure client satisfaction. In 
addition, [the beneficiary] has developed a program of monthly maintenance contracts for 
small and medium business to ensure a constant and increased income flow. [The 
beneficiary] has also developed a number of new avenues for advertising the company's 
services. 
On a daily basis, [the beneficiary] follows up with clients to ensure satisfaction with services 
performed by the staff and to develop new services for clients. He holds daily meetings with 
the computer technicians for training purposes and also to determine if there are additional 
services that can be performed for the clients. He also spends time in the field to keep on top 
of the many changes and upgrades always occurring in the field. [The beneficiary] also 
networks daily with present and prospective clients. In addition, he also develops new 
advertising avenues for the Company. 
The petitioner provided an organizational chart for the U.S. company which depicts two employees under the 
beneficiary's supervision. The petitioner indicated that the "cold call specialist" is responsible for "marketing 
the Company's services by cold calling potential clients. The petitioner hrther indicated that it employs one 
contract computer technician who responds directly to clients and determines whether telephone assistance or 
on-site services are needed. The petitioner stated that the cold call specialist receives a monthly salary of 
WAC 07 240 5 1476 
Page 6 
$948, while the technician is paid by commission based upon services and products provided. The petitioner 
did not provide the date of hire for either employee. 
The petitioner did not provide the requested quarterly wage reports, noting that all of its employees are 
contract employees. In lieu of the wage reports, the petitioner submitted bank statements for its employee 
payroll bank account for the months of March 2007 through August 2007, some of which bear handwritten 
notations indicating which employees received specific check payments. 
The director denied the petition on November 21, 2007, concluding that the petitioner had failed to establish 
that the beneficiary would be employed in a primarily managerial or executive capacity. Upon review of the 
evidence, the director concluded that the beneficiary would be performing "all of the day-to-day operations of 
the business." The director noted that the petitioner's description of the beneficiary's duties was vague and 
merely paraphrased the statutory definitions of definitions of managerial and executive capacity. The director 
further found that the petitioner had failed to establish that the beneficiary would be supervising a subordinate 
staff of managerial, professional, or supervisory personnel who would relieve him from performing non- 
qualifying duties, or that he would manage an essential function of the organization. 
On appeal, the petitioner clarifies that it "utilizes contract technical personnel to perform the actual computer 
services provided to clients," and states that it continues to employ one contract technician and one cold call 
' 
specialist. The beneficiary provides the following information regarding his job duties: 
I spend approximately 70% of my time in overall management of the Company. I am solely 
responsible for and utilize full discretion and authority in developing the Company's overall 
marketing and growth strategy, including identifying and cultivating new client sources, and 
developing strong and mutually beneficiary relationships with personal and telephone contact 
with current and potential clients. Those contacts also provide the Company with first-hand 
information on the types of issues facing the Company's clients. My responsibilities also 
include setting up internal company procedures, such as accounting. 
In addition to my duties in overall development of the Company, I spend approximately 30% 
of my time in the hiring, supervision, evaluation and termination of contract personnel. 
Because the best way to evaluate a computer technician's ability to service clients is to 
observe him in the field with clients, I occasionally accompany the technician on field calls. 
In addition, I oversee the establishment of training programs and materials for contract 
personnel. I also have independent discretionary authority to hire and terminate all personnel. 
Upon review, and for the reasons discussed herein, the petitioner has not established that the beneficiary will 
be employed in a primarily managerial or executive capacity under the extended petition. 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). The petitioner's description of the job duties must clearly 
WAC 07 240 5 1476 
Page 7 
describe the duties to be performed by the beneficiary and indicate whether such duties are either in an 
executive or managerial capacity. Id. 
The definitions of executive and managerial capacity have two separate components. First, the petitioner must 
show that the beneficiary performs the high-level responsibilities that are specified in the definitions. Second, 
the petitioner must show 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). 
Here, while the beneficiary evidently exercises discretion over the day-to-day operations of the petitioning 
company as its president and chief executive officer, the petitioner's description of the beneficiary's job 
duties, considered in light of the totality of the evidence submitted, fails to establish that he would perform 
primarily managerial or executive duties under the extended petition. The fact that the beneficiary manages a 
business does not necessarily establish eligibility for classification as an intracompany transferee in a 
managerial or executive capacity within the meaning of sections 101(a)(15)(L) of the Act. See 52 Fed. Reg. 
5738,5739 (Feb. 26, 1987). 
Although the petitioner has provided a breakdown of how the beneficiary's time will be divided among his 
various responsibilities, the job description provided is too ambiguous to convey any understanding of what 
tasks the beneficiary will perform on a day-to-day basis. For example, the petitioner indicated that the 
beneficiary would devote 70% of his time to "development, management and enhancement of sales, 
marketing, and customer support functions." This general statement was not responsive to the director's 
request for a detailed description of the beneficiary's duties and the percentage of time he devotes to each 
specific duty, and it is insufficient to establish that the beneficiary primarily performs managerial duties 
associated with the "sales, marketing and customer support functions." The petitioner indicated that the 
beneficiary devotes the remaining 30 percent of his time to "supervision and training of U.S. staff;" however, 
as discussed further below, the petitioner has not submitted adequate evidence of its staffing levels, and the 
evidence of record does not establish that supervision of subordinate managerial, professional or supervisory 
subordinate personnel requires a significant proportion of the beneficiary's time. Overall, the petitioner's 
response to the directors' request for a detailed position description provided little insight into the nature of 
the beneficiary's daily duties. 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. Fedin Bros. Co., 
Ltd. v. Sava, 724 F. Supp. 1103, 1108 (E.D.N.Y. 1989), qfd, 905 F.2d 41 (2d. Cir. 1990). 
The petitioner also provided a description of the beneficiary's "day-to-day" duties which suggests that he is 
directly involved in the petitioner's sales, marketing, and customer service activities, rather than managing 
such activities through subordinate personnel. The petitioner indicated that the beneficiary "established a 
network of contacts," "develops new advertising avenues," "follows up with clients to ensure satisfaction," 
"networks daily with present and prospective clients," and "spends time in the field to keep on top of the 
many changes and upgrades always occurring the field." On appeal, the petitioner confirms that the 
beneficiary continues to have "substantial personal and telephone contact with current and potential clients." 
WAC 07 240 5 1476 
Page 8 
Furthermore, although the petitioner indicates that the beneficiary merely occasionally accompanies computer 
technicians on field' calls, other evidence in the record suggests that the beneficiary is directly involved in 
providing the services of the company. The petitioner provided copies of several work orders as evidence of 
its business activities during the first year of operations which identify the beneficiary as "service technician." 
As discussed further below, the petitioner has also failed to establish that it employs sufficient lower-level 
staff to relieve the beneficiary from performing non-qualifying duties. Overall, the petitioner's description of 
the beneficiary's daily duties indicates that he would primarily perform sales, marketing and customer service 
duties that do not fall under the statutory definitions of managerial or executive capacity. An employee who 
"primarily" performs the tasks necessary to produce a product or to provide services is not considered to be 
"primarily" employed in a managerial or executive capacity. See sections 101(a)(44)(A) and (B) of the Act 
(requiring that one "primarily" perform the enumerated managerial or executive duties); see also Matter of 
Church Scientology Intn 'l., 19 I&N Dec. 593,604 (Comm. 1988). 
Whether the beneficiary is a managerial or executive employee turns on whether the petitioner has sustained 
its burden of proving that his duties are "primarily" managerial or executive. See sections 101(a)(44)(A) and 
(B) of the Act. Here, the petitioner fails to meaningfully document what proportion of the beneficiary's duties 
would be managerial functions and what proportion would be non-managerial. The petitioner lists the 
beneficiary's duties as including both managerial and administrative or operational tasks, but fails to quantify 
the time the beneficiary spends on them. This failure of documentation is important because many of the 
beneficiary's duties, as discussed above, do not fall directly under traditional managerial duties as defined in 
the statute. For this reason, the AAO cannot determine whether the beneficiary is primarily performing the 
duties of a manager or executive. See e.g., IKEA US, Inc. v. US. Dept. of Justice, 48 F. Supp. 2d 22, 24 
(D.D.C. 1999). While the beneficiary exercises discretion over the day-to-day affairs of the business as 
president and owner, the fact that the beneficiary owns and manages the business is insufficient to establish 
that the beneficiary is employed in a managerial or executive capacity. Again, the actual duties themselves 
reveal the true nature of the employment. See Fedin Bros. Co., Ltd. v. Suva, 724 F. Supp. at 1108. 
Pursuant to section 10 l(a)(44)(C) of the Act, 8 U.S.C. 4 1 10 1 (a)(44)(C), if staffing levels are used as a factor 
in determining whether an individual is acting in a managerial or executive capacity, U.S. Citizenship and 
Immigration Services (USCIS) 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 USCIS to 
examine the organizational structure and staffing levels of the petitioner. See 8 C.F.R. 5 214.2(1)(14)(ii)(D). 
The regulation at 8 C.F.R. 4 214.2(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 USCIS 
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. 
At the time of filing, the petitioner was a one-year-old company engaged in providing computer-related 
services to business and residential clients. In August 2007, the petitioner claimed to employ the beneficiary, 
a secretary-dispatcher, and a computer technician, as well as a contracted marketing specialist, and it claimed 
to be in the process of hiring a second technician. In response to the request for evidence in November 2007, 
WAC 07 240 5 1476 
Page 9 
the petitioner claimed to employ the beneficiary, a computer technician, and a "cold call specialist." It 
provided no explanation regarding the "secretary-dispatcher" position or the second computer technician who 
had yet to be hired. At the same time, the petitioner claimed to have a substantial increase in business. Upon 
review of the evidence, it appears that the contracted marketing person and the "cold call specialist" are the 
same person, and that this individual was hired by the company in June 2007 to perform 40 hours of 
marketing work over a one-month period, according to the terms of the marketing agreement submitted with 
the initial petition. The petitioner failed to provide evidence that this employee was in fact working for the 
company as of August 2007. Similarly, the petitioner has failed to provide documentary evidence of payments 
to the computer technician, other than handwritten notations on its bank statements. Although the petitioner 
claims to have paid this individual nearly $10,000 in 2006, it did not provide evidence in the form of an IRS 
Form 1099 or copies of any paychecks issued to this employee. Although the director requested quarterly 
wage reports that were unavailable, the regulations at 8 C.F.R. 8 214.2(1)(14)(ii)(D) do specifically require the 
petitioner to submit evidence of wages paid to employees during the first year of operations. 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 (Cornm. 1998) (citing Matter of Treasure Craft of 
California, 14 I&N Dec. 190 (Reg. Cornm. 1972)). 
Furthermore, even if the petitioner had established that it employs the beneficiary and a computer techmian, 
it is noted that the petitioner reasonably requires employees to market its services, advertise the petitioner's 
business, respond to customer inquiries and perform other customer service hnctions, perform the company's 
technical services for all types of clients, maintain the company's day-to-day finances, and perform routine 
clerical and administrative tasks associated with operating any small business. Although the petitioner states 
that the beneficiary "manages" the day-to-day operations, the record does not clearly demonstrate that a single 
computer technician would perform most or all of the non-managerial and non-executive tasks associated 
with operating the petitioner's business. Based on the petitioner's claims, it does not appear that one 
contracted computer technician would even relieve the beneficiary from providing the petitioner's technical 
services to clients. 
Upon review, it is clear that the director considered the reasonable needs of the company and concluded that 
the petitioner was incapable based on its overall purpose and stage of development to support a primarily 
managerial or executive position as defined by sections 101(a)(44)(A) and (B) of the Act. Contrary to the 
petitioner's assertions, the record does not establish that the beneficiary was relieved from primarily 
performing non-managerial duties associated with the company's sales, marketing, advertising, customer 
service, financial, and administrative hctions. 
Collectively, the lack of a subordinate staff brings into question how much of the beneficiary's time can 
actually be devoted to the claimed managerial or executive duties. As stated in the statute, the beneficiary 
must be primarily performing duties that are managerial or executive. See sections 10 1 (a)(44)(A) and (B) of 
the Act. Furthermore, the reasonable needs of the petitioner will not supersede the requirement that the 
beneficiary be "primarily" employed in a managerial or executive capacity as required by the statute. See 
sections 10 1 (a)(44)(A) and (B) of the Act, 8 U.S.C. 5 1 101(a)(44). The reasonable needs of the petitioner 
may justify a beneficiary who allocates 5 1 percent of his duties to managerial or executive tasks as opposed to 
90 percent, but those needs will not excuse a beneficiary who spends the majority of his or her time on non- 
WAC 07 240 5 1476 
Page 10 
, 
 qualifying duties. The AAO has long interpreted the regulations and statute to prohibit discrimination against 
small or medium-size businesses. However, the AAO has also long required the petitioner to establish that the 
beneficiary's position consists of primarily managerial and executive duties. As discussed above, the 
petitioner has not established this essential element of eligibility. 
In this case, while the beneficiary evidently exercises discretion over the business as the owner of the business 
and sole full-time employee, the petitioner has not established that his primary duties are the high-level duties 
contemplated by the statutory definition of executive capacity. Nor does the record establish that the 
beneficiary will primarily manage a subordinate staff of managerial, supervisory or professional employees, 
or an essential function of the organization, such that he would be employed in a primarily managerial 
capacity. See section 101(a)(44)(A) of the Act, 8 U.S.C. !j 1101(a)(44)(A). 
Although the petitioner indicates that it intends to hire additional staff in the near future, the petitioner must 
establish eligibility at the time of filing the nonimmigrant visa petition. A visa petition may not be approved 
based on speculation of hture eligibility or after the petitioner or beneficiary becomes eligible under a new 
set of facts. See Matter ofMichelin Tire Covp., 17 I&N Dec. 248 (Reg. Comm. 1978); Matter of Katigbak, 14 
I&N Dec. 45,49 (Cornrn. 1971). 
Based on the foregoing discussion, the petitioner has not established that the beneficiary will be employed in 
a primarily managerial or executive capacity under the extended petition. Accordingly, the appeal will be 
dismissed. 
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. tj 1361. Here, that burden has not been met. 
ORDER: The appeal is dismissed.