dismissed L-1A Case: Construction

U.S. Department of Homeland Security 
20 Mass, Rm. A3042,425 1 Street, N.W. 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
- 
PUBLIC COPY 
File: SRC 03 049 50067 Office: TEXAS SERVICE CENTER Date: JUH. 2 8 2005 
Petition: Petition for a Nonimmigrant Worker Pursuant to Section 10 1 (a)(15)(L) of the Immigration 
and Nationality Act, 8 U.S.C. 5 1 1 0 l (a)(] S)(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. 
SRC 03 049 50067 
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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 business development 
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. $ 1101(a)(15)(~).' The petitioner is a Louisiana limited 
liability company that is engaged in the construction business. The petitioner claims that it is the subsidiary 
0-located in Bogota, Colombia. 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. 
The director denied the petition concluding that the petitioner did not establish that the beneficiary would 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 that the beneficiary 
qualifies as an intra-company employee who has both executive/managerial capacity and specialized 
knowledge capacity as described under 8 C.F.R. $ 214.2(1)(l)(ii). In support of this assertion, the petitioner 
submits additional evidence. 
To establish eligibility for the L-1 nonimmigrant visa classification, the petitioner must meet the criteria 
outlined in section lOl(a)(lS)(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. § 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. 
1 The AAO notes that the petitioner's Citizenship and Immigration Services (CIS) Form I- 129, Petition for a 
Non-Immigrant Worker, shows that at the time the petition for extension of status was filed, the beneficiary 
was in L-1B status. However, the petitioner indicated on the Form 1-129 that it is seeking L-IA classification 
for the beneficiary due to a change in previous employment. 
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(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 
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 (I)(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 first issue in the present matter is whether the beneficiary would be employed by the United States entity 
in a primarily managerial or executive capacity. 
Section 101(a)(44)(A) of the Act, 8 U.S.C. § 1101(a)(44)(A), defines the term "managerial capacity" as an 
assignment within an organization in which the employee primarily: 
(i) manages the organization, or a department, subdivision, function, or component of 
the organization; 
(ii) supervises and controls the work of other supervisory, professional, or managerial 
employees, or manages an essential function within the organization, or a department 
or subdivision of the organization; 
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(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 10 l(a)(44)(B) of the Act, 8 U.S.C. 5 1 101(a)(44)(B), defines the term "executive capacity" as an 
assignment within an organization in which the employee primarily: 
(i) directs the management of the organization or a major component or function of the 
organization; 
(ii) establishes the goals and policies of the organization, component, or function; 
(iii) exercises wide latitude in discretionary decision making; and 
(iv) receives only general supervision or direction Erom higher level executives, the board 
of directors, or stockholders of the organization. 
On the Form 1-129, the petitioner stated that the beneficiary's proposed job duties in the United States would 
be to "supervise and give direction to other top executives including the Administrative and Financial 
Director and the marketing technology and Commercial Director, as well as, make all internal decisions 
[sic]." The petitioner's Form 1-129 indicates that the U.S. entity has five employees. In a letter dated 
November 21, 2002, submitted with the petition, the petitioner stated that the beneficiary "has been 
responsible for establishing and executing company goals, policies, strategies, and procedures for the different 
business units established by the company" and that he "supervises and gives direction to other Habitat 
Digital executives including the Administrative and Financial Director." The petitioner also indicated 
generally that the beneficiary "has all rights and powers conferred by law, as more particularly described in 
the Operational Agreement" of the U.S. entity. 
The petitioner also stated in that letter that the staff of the U.S entity includes, in addition to the beneficiary, 
an administrative and financial director, a commercial and marketing director, a commercial assistant, sales 
associates, and project managers of the general contractors. 
On March 14, 2003, the director requested additional evidence to establish that the beneficiary will be acting 
primarily in a managerial/executive capacity. The director also requested, in connection with the U.S. entity, 
copies of the Employer's Quarterly Wage Return for the third and fourth quarter of 2002, with attachments 
listing the names, social security numbers, and wages of all employees; a copy of the company's commercial 
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lease; a copy of the audited financial statement for 2002; a list of all jobs completed or pending in 2002; and 
the actual revenues generated by the U.S. entity. The director also requested that the petitioner establish that 
it has generated sufficient business to support an executive position. The director further requested additional 
evidence relating to the foreign company, including a copy of the corporate tax return for 2002; a copy of the 
employer register for November and December 2002; evidence of business conducted during November and 
December 2002; and copies of the business license and current lease. 
On June 2, 2003, the petitioner submitted additional evidence in response to the director's request. The 
petitioner stated in the response letter that since his arrival in the United States as a legal employee of the U.S. 
entity, the beneficiary "has been actively involved in managerial activities related to the following: 
Establishment of the office in New Orleans and Baton Rouge Area 
Obtain of Occupancy Licenses [sic], and proper registration in the State 
Hiring of employees 
Buying and selling properties 
Obtain credit loans 
Networking and establishment of strategic, commercial and technical alliances 
Establishment of the company's strategic and operational plan 
Enrollment in Industry Related Associations . . . 
Proposal preparation 
Company representation in contracting 
Importing support 
Acting as a Principal and Qualifying Party in the process of obtaining the required State Building 
License as a Builder fo ." 
The petitioner further indicated that after the earlier stages of securing licenses and regulatory compliance, 
development of strategy ad marketing and hiring and training personnel, the company had "reached the point 
in which projects have begun to be performed on a more regular bases [sic]." In the same letter, the petitioner 
stated that the staff at that time consisted of an office manager, a maintenance person, three sales 
representatives, and the full time participation of all partners. 
On September 22, 2003, the director denied the petition. The director determined that the evidence was not 
sufficient to show that the beneficiary would be employed primarily in a managerial or executive capacity by 
the U.S. entity. Specifically, the director noted that the petitioner already has one manager who was granted 
L-1A status until December 2005, and questioned whether the petitioner's need for two executive/managerial 
level employees is justified since there are only four persons on its staff, In addition, the director found that 
the beneficiary would not have the requisite authority over the petitioner's contract personnel, and does not 
supervise and control the work of other supervisory, professional, or managerial employees. Finally, the 
director found that although the beneficiary is given the title of business development manager, the petitioner 
has not clearly demonstrated that the company has such a complex structure as to warrant business 
development as a separate function within the organization. 
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On appeal, counsel for the petitioner asserts that the beneficiary qualifies as an intra-company employee who 
has both executive/managerial capacity and specialized knowledge capacity as described under 8 C.F.R. 5 
214.2(1)(l)(ii). With respect to the beneficiary's managerial/executive capacity, counsel asserts that in the 
petition, the petitioner erroneously used the title "business development manager" in reference to the 
beneficiary. Counsel states that the beneficiary is in fact the general manager and technical director of the 
company. Counsel then restates the beneficiary's job responsibilities. In response to the director's concern as 
to whether there is enough work at the managerial/executive level for two managers, counsel contends that 
the evidence submitted shows that the organization demands the management and specialized knowledge 
capacities of both of these managers. Counsel also asserts that there should not be exclusive focus on the 
number of persons employed without taking into account the reasonable needs of the company in light of its 
overall purpose and stage of development. 
On reviewing the petition and the evidence, the AAO finds the petitioner has not established that the 
beneficiary has been or will be 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. $ 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 petitioner cannot claim that some 
of the duties of the position entail executive responsibilities, while other duties are managerial. A beneficiary 
may not claim to be employed as a hybrid "executive/manager" and rely on partial sections of the two 
statutory definitions. 
The AAO notes that the petitioner did not specify whether the duties to be performed by the beneficiary are in 
an executive or managerial capacity. Moreover, the descriptions of the beneficiary's duties provided by the 
petitioner are vague and nonspecific, and fail to demonstrate what the beneficiary does on a day-to-day basis. 
For example, the petitioner stated that the beneficiary would "supervise and give direction to other top 
executives," "make all internal decisions" and that the beneficiary "has been responsible for establishing and 
executing company goals, policies, strategies, and procedures for the different business units established by 
the company." However, the petitioner did not define such goals, policies, strategies and procedures, or give 
any specifics relating to the beneficiary's supervisory role. Similarly, in response to the director's request for 
further evidence, the petitioner merely indicated that the beneficiary "has been actively involved in 
managerial activities" in connection with certain projects of the company, without clarifying or providing 
further details of what such managerial activities entailed. 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. 1 103 (E.D.N.Y. 1989), uf'd, 905 F.2d 4 1 (2d. Cir. 1990). 
Counsel's assertions on appeal with respect to the beneficiary's job duties also are not persuasive. With 
respect to the beneficiary's job responsibilities, counsel states that "in addition to supervise [sic] other 
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managers, [the beneficiary] directs the management of the organization, establishes the goals and policies of 
the organization, exercises wide latitude in discretionary decision making, and receives general supervision or 
direction from the board of directors of the organization." Rather than providing any specific details relating 
to the beneficiary's duties, counsel merely paraphrased the statutory definition of executive capacity. See 
section 10l(a)(44)(A) of the Act, 8 U.S.C. $ 1101(a)(44)(A). Again, conclusory assertions regarding the 
beneficiary's employment capacity are not sufficient to meet the petitioner's burden of proof. Merely 
repeating the language of the statute or regulations does not satisfy the petitioner's burden of proof. Fedin 
Bros. Co., Ltd. v. Sava, supra at 1108; Avyr Associates Inc. v. Meissner, 1997 WL 188942 at *5 (S.D.N.Y.). 
Moreover, 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 oflaureano, 19 I&N Dec. I (BIA 1983); Matter ofRamirez-Sanchez, 
17 I&N Dec. 503,506 (BIA 1980). 
Furthermore, the AAO finds that there are substantial inconsistencies in the evidence of record, which casts 
doubt upon the petitioner's representation of the personnel structure of the U.S. entity, as well as the role of 
the beneficiary within it. Initially, the petitioner indicated in the Form 1-129 and in its November 21, 2002 
letter of support that it seeks to employ the beneficiary as its "business development manager." However, the 
U.S. entity's organization chart depicts the beneficiary as the "general manager and technical director" of the 
company. The petitioner did not account for this discrepancy in the record. It is incumbent upon the 
petitioner to resolve any inconsistencies in the record by independent objective evidence. Any attempt to 
explain or reconcile such inconsistencies will not suffice unless the petitioner submits competent objective 
evidence pointing to where the truth lies. Matter of Ho, 19 I&N Dec. 582, 591-92 (BIA 1988). The AAO 
notes that on appeal, counsel explains that the discrepancy is "the result of improper communication by 
petitioner with the Service." However, given that the petition was signed, and therefore presumably 
reviewed, by the managing partner of the beneficiary's employer, such a significant oversight does not appear 
reasonable. Furthermore, counsel presented no evidence in support of his claim. As noted earlier, without 
supporting documentation, the assertions of counsel will not satisfy the petitioner's burden of proof. Matter of 
Obaigbena, 19 I&N Dec, at 534; Matter of Laureano, 19 I&N Dec. at 1 ; Matter of Ramirez-Sanchez, 17 I&N 
Dec. at 506. 
In addition, the petitioner's representations regarding the number and structure of its staff were inconsistent 
throughout the record. In the Form 1-129, the petitioner indicated that it has five employees. In its letter of 
support, the petitioner stated that its staff includes "the administrative and financial director, commercial and 
marketing director, a commercial assistant, sales associates, and project managers of the general contractors" 
in addition to the beneficiary, thus more than five in all. The U.S. entity's organizational chart, on the other 
hand, presented yet another staff structure with at least ten employees, including the general 
managerltechnical director, the commercial director, the administrative director, three sale associates and four 
assistants. In the June 2, 2003 letter responding to the director's request for further evidence, the petitioner 
gave a different description of its staff, stating that it is "made up of an office manager, a maintenance person 
to maintain properties under contract, and three sales representative, coupled with the full time participation 
of all partners." In the same letter, the petitioner stated that it filed no IRS Form 941, Employer's Quarterly 
Federal Tax Return for the third and fourth quarter of 2002 because two of the sale representatives hired at 
that time worked on a commission basis; this fails to account for the other employees purportedly on its staff 
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when the petition was filed in December 2002. Similarly, the IRS Form 941 for the first quarter of 2003 that 
the petitioner did submit indicates that the petitioner has only one employee during that pay period, rather 
than the ten or more listed in the organizational chart, or the eight set forth on the list of employees provided 
by the petitioner in the same packet of evidence. 
Given these conflicting descriptions of the petitioner's staff and the beneficiary's position, the AAO is unable 
to determine based on the record what is the exact composition of the U.S. entity's staff, or the beneficiary's 
role within it. Furthermore, the petitioner failed to reconcile or explain these material inconsistencies in the 
record. As previously noted, it is incumbent upon the petitioner to resolve any inconsistencies in the record 
by independent objective evidence. Any attempt to explain or reconcile such inconsistencies will not suffice 
unless the petitioner submits competent objective evidence pointing to where the truth lies. Matter ofHo, 
19 I&N Dec. at 591. In light of these unexplained inconsistencies, the AAO must question the veracity of the 
petitioner's representations regarding its staff. Doubt cast on any aspect of the petitioner's proof may, of 
course, lead to a reevaluation of the reliability and sufficiency of the remaining evidence offered in support of 
the visa petition. Id, If CIS fails to believe that a fact stated in the petition is true, CIS may reject that fact. 
Section 204(b) of the Act, 8 U.S.C. 5 1154(b); see also Anetekhai v. I.N.S., 876 F.2d 1218, 1220 (5th 
Cir.1989); Lu-Ann Bakery Shop, Inc. v. Nelson, 705 F. Supp. 7, 10 (D.D.C.1988); Systronics Corp. v. INS, 
153 F. Supp. 2d 7, 15 (D.D.C. 2001). 
In all, the record is not persuasive in demonstrating that the beneficiary's duties in the proposed position will be 
primarily managerial or executive in nature. Given the indefinite description of the beneficiary's job duties and 
the indiscriminate manner in which the petitioning company uses position titles, the petitioner has not established 
that the beneficiary 1s to be employed in a primarily managerial or executive position. The descriptions of the 
duties to be performed by the beneficiary in the proposed position are vague and do not persuasively demonstrate 
that the beneficiary will have managerial control and authority over a function, department, subdivision or 
component of the company. Further, the record contains conflicting information regarding the petitioner's staff, 
and does not sufficiently demonstrate that the beneficiary will manage a subordinate staff of professional, 
managerial, or supervisory personnel who will relieve him from performing non-qualifying duties. CIS is not 
compelled to deem the beneficiary to be a manager or executive simply because the beneficiary possesses a 
managerial or executive title. In light of the foregoing, the AAO concludes that the petitioner has not established 
that the beneficiary will be employed in a primarily managerial or executive capacity. For this reason, the petition 
will not be approved. 
The AAO notes that counsel also challenges on appeal the director's determination that the petitioner's 
business is not sufficiently developed to justify the need for two managers. Counsel correctly observes that 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. See 9 10 1 (a)(44)(C) of the Act, 
8 U.S.C. 5 1101 (a)(44)(C). However, it is appropriate for CIS to consider the size of the petitioning company 
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, e.g. Systronics Corp, v. 
INS, 153 F.Supp.2d at 15. The size of a company may be especially relevant when CIS notes discrepancies in 
the record and fails to believe that the facts asserted are true, as is the case in this proceeding. Id. Moreover, 
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the reasonable needs of the petitioner serve only as a factor in evaluating the lack of staff in the context of 
reviewing the claimed managerial or executive duties. The petitioner must still establish that the beneficiary 
is to be employed in the United States in a primariIy managerial or executive capacity, pursuant to sections 
101(a)(44)(A) and (B) or the Act. As discussed above, the petitioner has not established this essential 
element of eligibility. 
Finally, the AAO notes counsel's assertion on appeal that the beneficiary qualifies alternatively as an 
employee with a specialized knowledge capacity, based on past experience with the Colombian company, his 
extensive knowledge of the company's system, his language capabilities, and his understanding of the 
management and technical aspects of the company. The petitioner clearly indicated on the petition and in its 
letter of support dated November 21, 2002, submitted with the petition, that it sought to classify the 
beneficiary "as a L-1A intra-company transferee in his executive or managerial capacity." There was no 
indication that the petitioner wished to request consideration for L-1B status for the beneficiary based on his 
specialized knowledge capacity, nor was there any evidence submitted to that effect."bsent an explicit 
request by the petitioner at the time the petition was filed, the AAO will not consider such request by counsel 
at this time. 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). Moreover, as noted 
earlier, without documentary evidence to support the claim, the assertions of counsel will not satisfy the 
petitioner's burden of proof. See Matter of Obaigbenu, 19 I&N Dec, at 534; Matter of laureano, 19 I&N 
Dec. at I; Matter of Ramirez-Sanchez, 17 I&N Dec. at 506. 
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. 
2 The AAO notes that the record includes a copy of a petition for L-1B status, filed by the petitioner on behalf 
of the beneficiary in October 2001. The record also indicates that the beneficiary was granted L-1B status 
through December 20, 2002 based on that petition. In light of that grant, and of the fact that information in 
that petition is neither timely nor relevant to this Ll -A proceeding, the AAO will not consider that petition as 
an alternative request for L-1B status under the current petition.