dismissed L-1A Case: Construction

U.S. Department of Homeland Security 
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FILE: WAC 03 083 5 1087 Office: CALIFORNIA SERVICE CENTER Date: :,A& .? "flit""* i~ 
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(15)(L) of the Immigration 
and Nationality Act, 8 U.S.C. 5 1 101 (a)(15)(L) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to 
the office that originally decided your case. Any further inquiry must be made to that office. 
Robert P. Wiemann, Director 
Administrative Appeals Office 
WAC 03 083 51087 
Page 2 
DISCUSSION: The Director, California Service Center, denied the petition for a nonimmigrant visa. 
Counsel for the petitioner subsequently filed a motion to reopen and reconsider. The director granted the 
motion and affirmed the previous decision. 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 general manager as an 
L-I A nonimrnigrant intracompany transferee pursuant to section 10 l(a)(15)(L) of the Immigration and 
Nationality Act (the Act), 8 U.S.C. 9 1101(a)(15)(L). The petitioner is a corporation organized under the laws 
of the State of California that is doing business as a construction company. The petitioner claims that it is the 
branch of the beneficiary's foreign employer, located in Homs, Syria. The beneficiary was granted an L-1A 
visa to open a new United States office. The petitioner now seeks to employ the beneficiary for an additional 
four years. 
The director denied the petition conclu~ding that the petitioner did not demonstrate that: (1) a qualifying 
relationship exists between the beneficiary's foreign employer and the petitioning organization; or (2) the 
beneficiary is employed by the United States entity in a primarily managerial or executive capacity. 
In a motion to reopen and reconsider filed by the petitioner's current counsel on July 25, 2003, counsel 
claimed that the petitioner's former counsel filed inaccurate documents for the requested visa extension and 
did not provide proper evidence with regard to the beneficiary's employment capacity and the petitioner's 
relationship with the foreign entity. Counsel submitted a brief and additional documentation in support of the 
motion. 
The director granted the motion and in a decision dated August 1 1,2003, affirmed the previous decision. The 
director stated that "[tlhe failure of the previous legal representative to fully represent the petitioner in this 
case, does not relieve the petitioner of [sic] proving eligibility at the time of filing the petition." The director 
also noted that the petitioner may not make material revisions to a petition in order to make a deficient 
petition comply with Citizenship and Immigration Service (CIS) requirements. 
On appeal, counsel claims that the petitioner did not make material changes to the petition in an effort to 
conform to CIS requirements, as the evidence was available when requested by CIS, but was not submitted by 
the petitioner's former counsel. Counsel also contends that the actions of the petitioner's former counsel 
"constituted ineffective assistance of co~lnsel which resulted in depriving petitioner of a fair and complete 
review of its submitted 1-129 petition." Counsel submits a brief in support of the appeal. 
To establish L-1 eligibility, the petitioner must meet the criteria outlined in section 101(a)(15)(L) of the Act, 8 
U.S.C. 6 1 10 1 (a)(15)(L). Specifically, within three years preceding the beneficiary's application for 
admission into the United States, 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. 
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. fj 214.2(1)(3) states that an individual petition filed on Form 1-129 shall be 
accompanied by: 
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Page 3 
(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 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. 
The regulation at 8 C.F.R. 3 214.2(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 management or executive capacity; and 
(E) Evidence of the financial status of the United States operation. 
The AAO will first address the issue of whether a qualifying relationship exists between the petitioning 
organization and the beneficiary's foreign employer as required at 9 101(a)(15)(L) of the Act, 8 U.S.C. 
5 1 101(a)(15)(L). 
The pertinent regulations at 8 C.F.R. 3 214.2(1)(l)(ii) define the term "qualifying organization" and related 
terms as follows: 
(G) QualiJSiing organization means a United States or foreign firm, corporation, or other legal 
entity which: 
(1) Meets exactly one of the qualifying relationships specified in the 
definitions of a parent, branch, affiliate or subsidiary specified in paragraph 
(l)(l)(ii) of this section; 
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(2) Is or will be doing business (engaging in international trade is not 
required) as an employer in the United States and in at least one other country 
directly or through a parent, branch, affiliate or subsidiary for the duration of the 
alien's stay in the United States as an intracompany transferee; and, 
(3) Otherwise meets the requirements of section 101 (a)(15)(L) of the Act. 
* * * 
(I) Pavent means a firm, corporation, or other legal entity which has subsidiaries. 
(J) Branch means an operating division or office of the same organization housed in a different 
location. 
(K) Subsidiary means a firm, corporation, or other legal entity of which a parent owns, directly or 
indirectly, more than half of the entivy and controls the entity; or owns, directly or indirectly, half 
of the entity and controls the entity; or owns, directly or indirectly, 50 percent of a 50-50 joint 
venture and has equal control and veto power over the entity; or owns, directly or indirectly, less 
than half of the entity, but in fact controls the entity. 
(L) Affiliate means 
(I) One of two subsidiaries both of which are owned and controlled by the 
same parent or individual, or 
(2) One of two legal entities owned and controlled by the same group of 
individuals, each individual owning and controlling approximately the same 
share or proportion of each entity. 
The petitioner filed the nonimmigrant petition on December 21, 2002. As the petitioner did not submit an 
accompanying letter or supplement to Fom 1-129, the record did not contain a description of the petitioner's 
relationship with the foreign organization. The director issued a request for evidence on March 3, 2003, 
asking that the petitioner submit evidence of a qualifying relationship including its articles of incorporation, 
the minutes from organizational meetings, and the company's stock transfer ledger, clearly identifying all 
stock certificates and shares issued. The director also requested a detailed list of the owners of the foreign 
entity and the percentage owned by each. 
Counsel responded in a letter dated laining that the petitioning organization, = - 
' was established as a wholly owned subsidiary of 
where the beneficiary was initially employed "to 
seek out and obtain new business for addition to his letter, counsel submitted Form 1-129 
Supplement, wherein the petitioning entity was identified as a branch of the beneficiary's foreign employer. 
Alternatively, the petitioner included on the Supplement a description that the foreign entity owns 100% of 
the stock 0-a New York corporation." Counsel also submitted a stock certificate, which 
identified the beneficiary as the holder of "Five Thousand Dollars" of stock issued by the petitioning 
organization,of California. 
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Page 5 
In a decision dated June 19, 2003, the director determined that the petitioner had failed to establish the 
existence of a qualifying relationship between the petitioning entity and the foreign organization. The 
director noted that counsel's response to his request for evidence failed to include evidence of the claimed 
qualifying relationship thereby precluding a material line of inquiry. Accordingly, the director concluded that 
the petitioner did not demonstrate ownership and control of the petitioning organization by the foreign entity. 
The director denied the petition. 
The petitioner's present counsel filed a motion to reopen and reconsider on July 18, 2003 stating that the 
petitioning organization is a wholly owned subsidiary of the foreign entity. Counsel submitted a second stock 
certificate, dated July 18, 2003, identifying the foreign employer as the owner of 1,000 shares of the 
petitioner's issued stock, and explained that "[the petitioning organization] was organized at the suggestion of 
[former counsel] to act in California in place and instead of the sister New York corporation." Counsel 
attached copies of wire transfers, which counsel stated confirmed the foreign entity's contribution of capital to 
the petitioning organization. 
In a decision dated August 11, 2003, the director affirmed his previous decision that the petitioner failed to 
establish a qualifying relationship between the two organizations at the time of filing the petition. The 
director stated that the alleged failure of the petitioner's prior counsel to adequately represent the petitioner 
does not relieve the petitioner from establishing eligbility at the time of filing the petition. The director 
further noted that a petitioner may not make material changes to a petition for the purpose of making a 
deficient petition comply with CIS requirements. 
On appeal, counsel claims that the petitioner did not make material changes to the nonimmigrant petition in 
an attempt to comply with CIS requirements. Counsel contends that the director's reliance on Matter of 
Izummi, 22 I&N Dec. 169, 176 (Assoc. Comm. 1998), is misplaced as the documentation establishing a 
qualifying relationship was available when requested by the director in March 2003. Counsel explains that 
the petitioner's former counsel never aske~d the petitioner for the relevant documents. 
Upon review, the petitioner has not demonstrated the existence of a qualifying relationship between the 
petitioning and foreign entities. 
The regulation and case law confirm that ownership and control are the factors that must be examined in 
determining whether a qualifying relationship exists between United States and foreign entities for purposes 
of this visa classification. Matter of Chunch Scientology International, 19 I&N Dec. 593 (BIA 1988); see also 
Matter of Siemens Medical Systems, Inc., 19 I&N Dec. 362 (BIA 1986); Matter of Hughes, 18 I&N Dec. 289 
(Comm. 1982). In context of this visa petition, ownership refers to the direct or indirect legal right of 
possession of the assets of an entity with full power and authority to control; control means the direct or 
indirect legal right and authority to direct the establishment, management, and operations of an entity. Matter 
of Church Scientology International, 19 I&N at 595. 
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 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 
WAC 03 083 5 1087 
Page 6 
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 at 362. Without full disclosure of 
all relevant documents, CIS is unable to determine the elements of ownership and control. 
The regulations specifically allow the director to request additional evidence in appropriate cases. See 8 
C.F.R. $ 214.2(1)(3)(viii). As ownershnp is a critical element of this visa classification, the director may 
reasonably inquire beyond the issuance of paper stock certificates into the means by which stock ownership 
was acquired. As requested by the director, evidence of this nature should include documentation of monies, 
property, or other consideration furnished to the entity in exchange for stock ownership. Additional 
supporting evidence would include stock purchase agreements, subscription agreements, corporate by-laws, 
minutes of relevant shareholder meetings, or other legal documents governing the acquisition of the 
ownership interest. 
The record contains manv unresolved inconsistencies regarding the ownership of the petitioning organization. - - - - 
of Stanton California. On the 1-129 supplement, th; petitioner identified the 
United States organization as a branch of the foreign entity. Counsel, however, indicated in his March 13, 
2002 letter submitted with the Supplement that the petitioning organization is a wholly owned subsidiary of a - - 
United States company-of ~ew York. Alternatively, counsel provided with his 
letter a stock certificate issued by the petitioning entity and dated July 23,2002, identifying the beneficiary as 
the owner of "Five Thousand Dollars" of shares. Moreover, the petitioner's current counsel submitted a 
second stock certificate, dated July 18, 2003, which is after the filing of the instant petition, identifying the 
foreign entity as the owner of 1000 sharles of the petitioner's 1,000,000 authorized shares of common stock. 
The AAO notes that the second stock certificate was not signed by the company's president or secretary. 
Clearly, the record fails to specifically identify the owner of the petitioning entity and the petitioner's true 
relationship with the beneficiary's foreign employer. The July 2002 stock certificate, while unclear on the 
actual number of shares issued, seems to imply that the beneficiary owns $5,000 worth of stock in the 
petitioning organization. This contradicts the petitioner's claim on the 1-129 Supplement that the petitioning 
organization is a branch of the foreign entity. The AAO notes that because the petitioner is incorporated in 
the United States as a separate company, it cannot be considered to be a branch, as defined in the regulation at 
8 C.F.R. $ 214.2(1)(l)(ii)(J). See See Matter of M, 8 I&N Dec. 24, 50 (BIA 1958, AG 1958); Matter of 
Aphrodite Investments Limited, 17 I&N Dec. 530 (Comm. 1980); and Matter of Tessel, 17 I&N Dec. 631 
(Act. Assoc. Comm. 1980) (concluding if the petitioner submits evidence to show that it is incorporated in the 
United States, then that entity will not qualify as branch since that corporation is a distinct legal entity 
separate and apart from the foreign organization.). 
In addition, the July 18, 2003 stock certificate, dated approximately seven months after the filing of the 
instant petition, prevents a finding that at the time of filing the petition a parent-subsidiary relationship existed 
between the foreign and United States organizations. See Matter of Michelin Tire Coup., 17 I&N Dec. 248 
(Reg. Comm. 1978) (stating that the petitioner must establish eligibility at the time of filing the nonirnmigrant 
visa petition, and may not be approved at a future date after the petitioner or beneficiary becomes eligible 
under a new set of facts). Even if the stock certificate were issued prior to the date of filing the petition, the 
petitioner has not reconciled its subsequent issuance of stock with the stock initially issued to the beneficiary 
in July 2002. This explanation is material to the instant issue in order to determine the petitioner's exact 
number of shareholders and each stockholder's ownership interest. It is incumbent upon the petitioner to 
resolve any inconsistencies in the record by independent objective evidence. Any attempt to explain or 
WAC 03 083 5 1087 
Page 7 
reconcile such inconsistencies will not suffice unless the petitioner submits competent objective evidence 
pointing to where the tmth lies. Matter of Ho, 19 I&N Dec. 582, 591-92 (BIA 1988). Here, the petitioner has 
clearly failed to explain or reconcile the obvious inconsistencies in the record related to ownership of the 
petitioning organization. 
The AAO notes that counsel also failed to address the claim that the petitioning entity is a wholly owned 
subsidiary o of New York. It is unclear whether this claim was mistakenly 
made by counsel or whether counsel was attempting to demonstrate indirect ownership of the petitioning 
organization by the foreign entity. Regardless, the record does not contain evidence establishing a 
relationship between and the foreign entity. Without this documentation, the claim of a parent- 
subsidiary relationship between the two United States organizations is irrelevant in demonstrating an indirect 
qualifying relationship between the petitiloner and the beneficiary's overseas employer. 
Furthermore, despite counsel's claim on appeal, the revised July 2003 stock certificate submitted by the 
petitioner on motion appears to be an attempt on the part of the petitioner to conform to CIS requirements 
following the director's identification of a deficiency. As noted previously, the stock certificate bears a date 
subsequent to the filing of the petition. As correctly noted by the director in his decision, a petitioner may not 
make material changes to a petition in an effort to make a deficient petition conform to CIS requirements. See 
Matter of lzurnrni, 22 I&N Dec. 169, 176 (Assoc. Comrn. 1998). 
Counsel contends on appeal that relevant documentation establishing a qualifying relationship was available 
when requested by the director, but not requested of the petitioner or submitted by the petitioner's former 
counsel. Counsel states that the evidence is now submitted as proof that it existed when requested in March 
2003, and to rebut the director's finding that the petitioner is attempting to make a material change to the 
nonimmigrant petition on appeal. 
Counsel's claim is not persuasive. The regulation allows the director to request additional evidence. 8 C.F.R. 
tj 204.56)(3)(ii). The purpose of the request for evidence is to elicit further information that clarifies whether 
eligibility for the benefit sought has been established, as of the time the petition is filed. See 8 C.F.R. $9 
103.2(b)(8) and (12). The failure to submit requested evidence that precludes a material line of inquiry shall 
be grounds for denying the petition. 8 C.F.R. § 103.2(b)(14). 
Where, as here, a petitioner has been put on notice of a deficiency in the evidence and has been given an 
opportunity to respond to that deficiency, the AAO will not accept evidence offered for the first time on 
appeal. See Matter of Soviano, 19 I&N Dec. 764 (BIA 1988); see also Matter of Obaigbena, 19 I&N Dec. 533 
(BIA 1988). Under the circumstances, the AAO need not and does not consider the sufficiency of the 
evidence submitted on appeal. 
Based on the foregoing discussion, the petitioner has not demonstrated the existence of a qualifying 
relationship between the petitioning entity and the foreign organization. Accordingly, the appeal will be 
dismissed. 
The AAO will next consider whether the beneficiary would be employed by the United States entity in a 
primarily managerial or executive capacipj. 
Section 101(a)(44)(A) of the Act, 8 U.S.C. 1101(a)(44)(A), provides: 
WAC 03 083 51087 
Page 8 
The term "managerial capacity" means 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 withn the organization, or a department or 
subdivision of the organization; 
(iii) Has the authority to hire and fire or recommend those as well as other personnel actions 
(such as promotion and leave authorization) if another employee or other employees are directly 
supervised; if no other employee is directly supervised, fictions at a senior level withn the 
organizational herarchy or with respect to the function managed; and 
(iv) Exercises discretion over the day-to-day operations of the activity or fiction 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. tj 1101(a)(44)(B), provides: 
The term "executive capacity" means 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-mahng; and 
(iv) Receives only general supervision or direction from higher level executives, the board of 
directors, or stockholders of the organization. 
The petitioner noted on the nonimrnigrant petition that the beneficiary would be employed in the United 
States as the petitioner's general manager and would "oversee construction operations." In his March 3, 2003 
request for evidence, the director requested that the petitioner clarify the beneficiary's place of employment in 
the United States and explain how the beneficiary's employment capacity would continue without change 
from his current position. The director also asked that the petitioner submit an organizational chart of the 
United States company clearly identifying its managerial hierarchy, staffing levels, and the beneficiary's 
position within the organization. The director stated that the chart should include a list of all employees under 
the beneficiary's supervision and a description of each employee's job duties, educational level and salary. 
The director further requested a detailed description of the daily job duties performed by the beneficiary, and 
asked that the petitioner submit copies of its federal and state quarterly wage reports. 
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Page 9 
In his March 13, 2002 response to the director's request for evidence, counsel explained that the beneficiary 
was presently and would continue to be employed as the petitioner's general manager in its Stanton, 
California office location. Counsel stated that the beneficiary's job duties include "setting up the business 
structures necessary to operate [the petitioning organization]," and performing as both project manager and 
general manager on all construction projects, including such tasks as researching new projects, obtaining 
financing, permits and materials, and meeting and negotiating with sub-contractors and real estate brokers. 
Counsel provided the petitioner's federal and state quarterly tax returns for the quarters ending March, June 
and September 2002. The beneficiary was identified on the forms as the sole employee of the petitioning 
organization. 
The director issued a decision on June 19, 2003, concluding that the petitioner had failed to demonstrate that 
the beneficiary would be employed by the petitioning organization in a primarily managerial or executive 
capacity. The director stated that because the petitioner does not employ personnel other than the beneficiary, 
"it becomes questionable as to whether the operator of the business is engaged primarily in managerial or 
executive duties." (emphasis in original). The director determined that the record was insufficient to 
conclude that the beneficiary would supervise and control the work of other supervisory, professional or 
managerial employees who would relieve him from performing the daily non-qualifying tasks of the business. 
The director also stated that the beneficiary was not shown to be employed at a senior level within the 
organizational hierarchy. The director stated "[iln light of the overall purpose and stage of development of 
the organization, the petitioner has not demonstrated that the beneficiary is performing primarily managerial 
or executive responsibilities within the meaning of 8 C.F.R. [$I 214.2(l)(ii)(B)." Consequently, the director 
denied the petition. 
In the July 18, 2003 motion to reopen and reconsider, counsel claimed that the beneficiary would be 
employed in an executive capacity as the company's chief executive officer. Counsel stated: 
[The] Beneficiary is or will be responsible in planning, developing and establishing policies; 
in conferring with company officials to plan business objectives; in developing organizational 
policies; in coordinating functions and operations between divisions and departments; in 
establishing responsibilities and procedures for attaining objectives; in directing and 
coordinating formulation of financial programs to provide funding for new or continuing 
operations to increase company growth; in developing marketing strategies and tactics; in 
directing ongoing competitive analysis; in overseeing the hiring of management personnel 
and in overseeing outside management personnel involved in assisting the Petitioner in the 
development of its enterprise. 
Counsel stated that the beneficiary would also be employed in a primarily managerial capacity as he performs 
the high-level responsibilities outlined in the definition of "managerial capacity" and does not devote the 
majority of his time to performing day-to-day functions of the company. Counsel explained that until 
recently, the beneficiary has overseen outside contractors in the construction of homes. Counsel stated that 
during the past quarter, the petitioner expanded its business activities and now oversees two staff members, an 
administrative assistant, a cost estimator, and outside contractors. Counsel explains that its two employees 
and the outside contractors are personally responsible for performing the daily routine operations of the 
business and for completing the petitioner's construction projects. 
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In his August 11, 2003 decision, the director affirmed his previous decision that the petitioner had not 
established that the beneficiary would be employed in the United States entity in a primarily managerial or 
executive capacity. The director again stated that the alleged failure of the petitioner's prior counsel to 
adequately represent the petitioner does not relieve the petitioner from establishing eligibility at the time of 
filing the petition. The director fwther noted that a petitioner may not make material changes to a petition for 
the purpose of makng a deficient petition comply with CIS requirements. 
On appeal, counsel again claims that the petitioner did not make material changes to the nonimmigrant 
petition in an attempt to comply with CIS requirements. Counsel contends that the director's reliance on 
Matter of Izummi is misplaced as the documentation establishing the beneficiary's employment in a qualifying 
capacity was available when requested by the director in March 2003. Counsel explains that the petitioner's 
former counsel never asked the petitioner for the relevant documents. 
Upon review, the petitioner has not demonstrated that the beneficiary would be employed by the United 
States entity in a primarily managerial or executive capacity. 
The petitioner has not specifically identified the position in which the beneficiary would be employed in the 
United States entity. Both the petitioner and counsel indicated on the nonimmigrant petition and in its 
response to the director's request for evidence that the beneficiary would occupy the position of "general 
manager" in the organization. Counsel also stated in its March 13, 2002 response that the beneficiary would 
perform as both the "project manager" and "general manager" on construction projects, yet did not define how 
the beneficiary's role in each position would differ. In the motion to reopen and reconsider, petitioner's 
counsel identified the beneficiary as the "chief executive officer" of the company. Neither the petitioner nor 
counsel has addressed the inconsistent references to the beneficiary's position, nor clarified the position of the 
beneficiary. In order to determine the beneficiary's true employment capacity the petitioner must be 
consistent in identifying the position offered to the beneficiary. As the regulations allow for employment in 
either a "managerial capacity" or an "executive capacity," it is essential that the petitioner clearly identify the 
beneficiary's specific job position and how the position satisfies either capacity. 
When examining the executive or managerial capacity of the beneficiary, the AAO will look to the 
petitioner's description of the job duties. See 8 C.F.R. 3 214.2(1)(3)(ii). 
Notwithstanding the inconsistent job titlles assigned to the beneficiary, the petitioner's description of the 
beneficiary's job duties indicate that he would be engaged in performing non-qualifying operations of the 
business. Counsel stated in its March 13, 2002 response to the director's request for evidence that the 
beneficiary's tasks as project and general manager would include obtaining financing, permits and materials, 
and meeting and negotiating with contractors and real estate brokers. Based on counsel's description, the 
beneficiary would personally perform thle non-managerial and non-executive functions associated with the 
petitioner's business as a construction company, rather than managing employees who would relieve the 
beneficiary from performing these day-tot-day operations. In addition, the record contains proposals signed 
and sent from the beneficiary to prospective customers, thereby demonstrating that the beneficiary is 
personally performing the negotiations and sales of the petitioning organization. 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 at 604. 
WAC 03 083 51087 
Page 11 
The director correctly observes that the reasonable needs of the petitioning organization would not be met by 
the services of petitioner's staff, which includes the beneficiary only. As required by section 10 1 (a)(44)(C) of 
the Act, if staffing levels are used as a factor in determining whether an individual is acting in a managerial or 
executive capacity, CIS must take into account the reasonable needs of the organization, in light of the overall 
purpose and stage of development of the organization. On motion, although counsel submitted a list of 
contractors used by the petitioning organization, there is no evidence that the company utilized these 
contractors or the claimed subcontractors at the time of filing the petition. The petitioner must establish 
eligibility at the time of filing the nonimrnigrant visa petition. A visa petition may not be approved at a future 
date after the petitioner or beneficiary blecomes eligible under a new set of facts. Matter of Michelin Tire 
Corp., 17 I&N at 248. Additionally, the petitioner has not explained how the services of the contracted 
employees obviate the need for the beneficiary to primarily conduct the petitioner's business. Without 
documentary evidence to support its statements, the petitioner does not meet its burden of proof in these 
proceedings. Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm. 1972). 
Moreover, the additional job description provided by counsel on motion fails to define the specific job duties 
the beneficiary would perform as either a general manager or a chief executive officer. Counsel's broad 
claims that the beneficiary would plan and establish policies and business objectives, develop organizational 
policies, coordinate functions between divisions and departments, direct financial programs, develop 
marketing strategies and oversee hiring are mere generalizations of high-level responsibilities. The petitioner 
is obligated to provide a detailed description of the services to be performed by the beneficiary. See 8 C.F.R. 
3 214.2(1)(3)(ii). The actual duties themselves reveal the true nature of the employment. Fedin Bros. Co., Ltd. 
v. Suva, 724 F. Supp. 1103, 1108 (E.D.N.Y. 1989), afd, 905 F.2d 41 (2d. Cir. 1990). 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 at 534; Matter Of Laureano, 
19 I&N Dec. 1 (BIA 1983); Matter of Ramirez-Sanchez, 17 I&N Dec. 503,506 (BIA 1980). 
The AAO recognizes counsel's claim that since the filing of the petition the petitioner has expanded its 
personnel to include an administrative assistant and cost estimator. This evidence however will not be 
considered as the workers were not employed by the petitioner at the time the petition was filed. 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 at 248. 
Based on the foregoing discussion, the petitioner has not demonstrated that the beneficiary would be 
employed by the United States entity in a primarily managerial or executive capacity. Accordingly, the 
appeal will be dismissed for this additional reason. 
The AAO will next address counsel's claim on appeal that the actions of the petitioner's former counsel 
constituted ineffective assistance of counsel. 
Any appeal or motion based upon a claim of ineffective assistance of counsel requires: (1) that the claim be 
supported by an affidavit of the allegedly aggrieved respondent setting forth in detail the agreement that was 
entered into with counsel with respect to the actions to be taken and what representations counsel did or did 
not make to the respondent in this regard, (2) that counsel whose integrity or competence is being impugned 
be informed of the allegations leveled against him and be given an opportunity to respond, and (3) that the 
appeal or motion reflect whether a complaint has been filed with appropriate disciplinary authorities with 
WAC 03 083 5 1087 
Page 12 
respect to any violation of counsel's ethical or legal responsibilities, and if not, why not. Matter of lozada, 19 
I&N Dec. 637 (BIA 1988), afyd, 857 F.2d 10 (1st Cir. 1988). 
Here, counsel has not satisfied the above-outlined requirements. Therefore, the AAO will not consider the 
claim of ineffective assistant of counsel. The statements of counsel on appeal or in a motion are not evidence 
and thus are not entitled to any evidentiary weight. See INS v. Phinpathya, 464 U.S. 183, 188-89 n.6 (1984); 
Matter of Ramirez-Sanchez, 17 I&N at 503. 
Beyond the decision of the director, an additional issue is whether the petitioning organization has been doing 
business in the United States for the previous year as required in the regulation at 8 C.F.R. 
tj 2 14.2(1)(14)(ii)(R). While the petitioner submitted invoices and statements dated throughout the year 2001, 
this documentation actually applies to the business operations of443f New 
York. The petitioner's articles of incorporation indicate that the organization was not incorporated 
under the laws of the State of California until December 2001. Of the additional documentation reflecting 
transactions by the petitioner in 2002, the earliest is dated July 26, 2002. As the instant petition was filed on 
December 2 1, 2002, five months after the petitioner began its business operations, the petitioner has failed to 
satisfy the regulatory requirement that it has been doing business for the year prior to filing the petition. For 
this additional reason, the appeal will be dismissed. 
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), 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. 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.