dismissed L-1A Case: Construction

,- - L wl~Y~~~~ le, 
preverli clearly unwarranh 
invasion of Pen0m-d privacy 
PUBLIC COPY 
U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. A3000 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
File: SRC-03-117-5 1565 Office: TEXAS SERVICE CENTER Date: sp 0 5 2m 
IN RE: Petitioner: 
Beneficiary: 
Petition: 
 Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(15)(L) of the Immigration 
and Nationality Act, 8 U.S.C. 4 1 101(a)(15)(L) 
IN BEHALF OF PETITIONER: 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to 
the office that originally decided your case. Any further inquiry must be made to that office. 
./--< c, 
~6be~&E*em'ann, Chief 
Administrative Appeals Office 
SRC-03-117-5 1565 
Page 2 
DISCUSSION: The director, Texas Service Center, denied the petition for a nonirnmigrant 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 vice president as an 
L-1A nonimmigrant intracompany transferee pursuant to section 101(a)(15)(L) of the Immigration and 
Nationality Act (the Act), 8 U.S.C. fj 1101(a)(15)(L). The petitioner is a corporation organized under the laws 
of the state of Texas and is en aged in the construction business. 
 The petitioner claims that it is the 
subsidiary of - in Karachi, Pakistan. The beneficiary was initially granted a one-year 
period of stay 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 will be 
employed in the United States in a primarily managerial or executive capacity. 
The petitioner subsequently filed a motion to reopen with the service center. In the motion counsel asserted 
that the petitioner was qualified for the benefit sought and submitted additional evidence. 
The director subsequently denied the motion finding that the beneficiary had not established that beneficiary 
would be employed in a managerial or executive capacity and that petitioner had not been doing business as it 
is defined by 8 C.F.R. §214.2(1)(l)(ii)(G)(2). 
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. 
To establish eligibility for an extension the L-1 nonimmigrant visa classification for a new office, 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. 9 214.2(1)(3) that evidence for individual petitions 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. 
SRC-03-117-5 1565 
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(iv) 
 Evidence that the alien's prior year of employment abroad was in a position that was 
managerial, executive, or involved specialized knowledge and that the alien's prior education, 
training, and employment qualifies himher to perform the intended services in the United 
States; however, the work in the United States need not be the same work which the alien 
performed abroad. 
As required by 8 C.F.R. 214.2(1)(3)(~), if the petition indicates that the beneficiary initially came to the 
United States as a manager or executive to open or to be employed in a new office in the United States, the 
petitioner shall submit evidence that: 
(A) 
 Sufficient physical premises to house the new office have been secured; 
(B) 
 The beneficiary has been employed for one continuous year in the three year period 
preceding the filing of the petition in an executive or managerial capacity and that the 
proposed employment involved executive or managerial authority over the new operation; 
and 
(C) 
 The intended United States operation, within one year of the approval of the petition, will 
support an executive or managerial position as defined in paragraphs (l)(l)(ii)(B) or (C) of 
this section, supported by information regarding: 
(1) 
 The proposed nature of the office describing the scope of the entity, its organizational 
structure, and its financial goals; 
(2) 
 The size of the United States investment and the financial ability of the foreign entity 
to remunerate the beneficiary and to commence doing business in the United States; 
and 
(3) 
 The organizational structure of the foreign entity. 
The regulation at 8 C.F.R. 8 214.2(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 (I)(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; 
SRC-03- 1 17-5 1565 
Page 4 
(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 first issue in this matter is whether the petitioner established that the beneficiary had been and will be 
employed primarily in a managerial or executive capacity. Section 101(a)(44)(A) of the Act, 8 U.S.C. 9 
1 101 (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 
function managed; and 
(iv) 
 exercises discretion over the day to day operations of the activity or function for 
which the employee has authority. A first line supervisor is not considered to be 
acting in a managerial capacity merely by virtue of the supervisor's supervisory 
duties unless the employees supervised are professional. 
Section 101(a)(44)(B) of the Act, 8 U.S.C. 9 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 f?om higher level executives, the board 
of directors, or stockholders of the organization. 
SRC-03-117-51565 
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In the initial petition, the petitioner did not substantively describe the beneficiary's job duties, nor did the 
petitioner submit any supporting evidence, despite the fact that basic initial evidence is required by 8 C.F.R. 
214.2(1)(3) and 8 C.F.R. § 214.2(1)(14). 
On June 2, 2003 the director requested additional evidence. Specifically, the director requested, inter alia, 
documentary evidence that the petitioner had been doing business for the last year, documentary evidence of 
the ownership and control of petitioner by foreign qualifying organization and a definitive statement of the 
beneficiary's duties including a percentage of time spent on each duty, the number of employees that report 
directly to the beneficiary, a description of their job titles and duties with educational backgrounds, or a 
specification of what essential function was managed by beneficiary. 
In response, counsel for petitioner submitted brief responses to the director's queries and some additional 
evidence. 
On September 5, 2003, the director denied the petition concluding that the petitioner did not establish that the 
beneficiary will be employed in the United States in a primarily managerial or executive capacity and that 
there was not a qualifying relationship with a foreign qualifying organization. Further, the director pointed 
out serious inconsistencies in the record and counsel's assertions as well as not having shown proof that 
beneficiary and the petitioner's only other employees had registered with Citizenship and Immigration 
Services as required under the NSEERS regulations. 
The petitioner subsequently filed a motion to reopen and reconsider on October 23, 2003. Petitioner made 
vague conclusory assertions and described the beneficiary's duties in unspecific terms. The AAO would also 
note that the inconsistencies and deficiencies noted in the first denial went unaddressed by counsel and no 
percentage breakdown of the beneficiary's managerial or executive duties was ever provided. 
On January 26, 2004, the director denied the motion. The director determined that the beneficiary would not 
be employed primarily in a managerial or executive capacity. The petitioner subsequently appealed and the 
matter is now before the AAO. 
The regulation states that the petitioner shall submit additional evidence as the director, in his or her 
discretion, may deem necessary. 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. §§ 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 Soriano, 19 I&N Dec. 764 (BIA 1988); see also Matter of Obaigbena, 19 I&N Dec. 533 
(BIA 1988). If the petitioner had wanted the submitted evidence to be considered, it should have submitted 
the documents in response to the director's request for evidence. Id. Under the circumstances, the AAO need 
not and does not consider the sufficiency of the evidence submitted on appeal. 
SRC-03-117-5 1565 
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Upon review, counsel's assertions are not persuasive and the decision of the director will be upheld. 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. 8 214.2(1)(3)(ii). The petitioner's description of the job duties must 
clearly, and in detailed manner, 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 petitioner may not claim that the beneficiary is to be employed as a hybrid 
"executive/manager" and rely on partial sections of the two statutory definitions. 
In the instant case petitioner stated that the beneficiary was its vice president but did not clearly state whether 
beneficiary's employment would be in a primarily managerial or executive capacity. Documentation 
throughout the record alternatively paraphrases text from the statutory definition of each capacity without 
ever clearly specifying that the beneficiary met each of the four criteria for both capacities as would be 
required of a petitioner claiming hybrid managerlexecutive capacity for a beneficiary. 
On appeal counsel makes numerous assertions that are not supported by documentary evidence and fails to 
address the inconsistencies contained in the record.' Without documentary evidence to support the claim, the 
assertions of counsel will not satisfy the petitioner's burden of proof. The unsupported assertions of counsel 
do not constitute evidence. Matter of Obaigbena, 19 I&N Dec. 533, 534 (BIA 1988); Matter of Laureano, 19 
I&N Dec. 1 (BIA 1983); Matter of Ramirez-Sanchez, 17 I&N Dec. 503, 506 (BIA 1980). 
The petitioner has never provided a detailed, specific description of beneficiary's 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 answer a 
critical question in this case: What does the beneficiary primarily do on a daily basis? The actual duties 
themselves will reveal the true nature of the employment. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1103, 
1 108 (E.D.N.Y. 1989), affd, 905 F.2d 41 (2d. Cir. 1990). 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. Id. 
When examining the managerial or executive capacity of a beneficiary, Citizenship and Imrmgration Services 
(CIS) reviews the totality of the record, including descriptions of a beneficiary's duties and his or her 
subordinate employees, the nature of the petitioner's business, the employment and remuneration of 
employees, and any other facts contributing to a complete understanding of a beneficiary's actual role in a 
business. The evidence must substantiate that the duties of the beneficiary and his or her subordinates 
correspond to their placement in an organization's structural hierarchy; artificial tiers of subordinate 
employees and inflated job titles are not probative and will not establish that an organization is sufficiently 
complex to support an executive or manager position. An individual whose primary duties are those of a 
-- - - 
1 
 E.g., on appeal counsel states "[allthough the record may seem somewhat confusing, we advise that the 
[bleneficiary is managing the overall operations of LFM. The . . . documents stipulate that Abdul Karim Tai 
[not beneficiad is designated as managing the organization. However, this is not business reality." 
SRC-03-117-5 1565 
Page 7 
first-line supervisor will not be considered to be acting in a managerial capacity merely by virtue of his or her 
supervisory duties unless the employees supervised are professional. Section 101(a)(44)(A)(iv) of the Act. 
In the present matter, the totality of the record does not support a conclusion that the beneficiary's 
subordinates are supervisors, managers, or professionals. Instead, the record indicates that the beneficiary and 
the only other employee perform the actual day-to-day tasks of operating third party organizations. The 
petitioner has not provided evidence of an organizational structure sufficient to elevate the beneficiary to a 
supervisory position that is higher than a first-line supervisor of non-professional employees. Pursuant to 
section 101(a)(44)(A)(iv) of the Act, the beneficiary's position does not qualify as primarily managerial or 
executive under the statutory definitions. 
In determining whether the beneficiary manages professional employees, the AAO must evaluate whether the 
subordinate positions require a baccalaureate degree as a minimum for entry into the field of endeavor. 
Section 101(a)(32) of the Act, 8 U.S.C. 9 1101(a)(32), states that "[tlhe termprofession shall include but not 
be limited to architects, engneers, lawyers, physicians, surgeons, and teachers in elementary or secondary 
schools, colleges, academies, or seminaries." The term "profession" contemplates knowledge or learning, not 
merely skill, of an advanced type in a given field gained by a prolonged course of specialized instruction and 
study of at least baccalaureate level, which is a realistic prerequisite to entry into the particular field of 
endeavor. Matter of Sea, 19 I&N Dec. 81 7 (Comm. 1988); Matter of ling, 13 I&N Dec. 35 (R.C. 1968); 
Matter of Shin, 11 I&N Dec. 686 (D.D. 1966). 
In the instant case petitioner has not submitted any probative evidence that the beneficiary manages 
professional or managerial employees. In fact, counsel simply makes the assertion that contracts with third 
party organizations provide the basis for a acting in a managerial capacity. However, the petitioner failed to 
substantiate that such projects have actually occurred. 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 (Comm. 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. 
Comm. 1972)). Without probative supporting documentary evidence the AAO is unable to determine that the 
alleged sub-contractors beneficiary "manages" qualifies as professionals or managerial employees, or that the 
beneficiary's interaction with the contractors rises above a first-line supervisor capacity. Thus, the sub- 
contractors (which are not employees of petitioner) "managed" by beneficiary are not professionals and any 
duties pertaining to management of this or other non-professional employees as a first-line supervisor do not 
qualify as executive or managerial in capacity.2 
The petitioner also claims that beneficiary is a functional manager. An analysis of being a functional manager 
rests on a finding that beneficiary performs in a primarily managerial or executive capacity. Whether the 
beneficiary is an "activity" or "function" manager turns in part on whether the petitioner has sustained its 
burden of proving that his duties are "primarily" managerial. Here, the petitioner has failed to carry the 
burden that beneficiary's duties would be primarily managerial functions. 
 The petitioner lists the 
2 
 The AAO also notes that petitioner attempts to cite Department of Labor materials in support of their 
argument for this CIS proceeding. The Department of Labor is a separate federal agency operating under 
different congressional mandates and petitioner has failed to explain how Department of Labor materials 
carry any weight in these proceedings. 
SRC-03-117-5 1565 
Page 8 
beneficiary's duties as managerial, but it fails to describe in detail what the duties entail on a day-to-day basis. 
This failure of documentation is important because several of the beneficiary's daily tasks, such as "on-site 
management" and "transferring business management responsibilities for business convenience" 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 function manager. See IKEA US, 
Inc. v. U.S. Dept. of Justice, 48 F. Supp. 2d 22,24 (D.D.C. 1999). 
Thus, the counsel is not persuasive in demonstrating, and the record does not support, that the beneficiary has 
been or will be employed in a primarily managerial or executive capacity. The petitioner has provided a 
vague, nonspecific description of the beneficiary's duties that fails to demonstrate what the beneficiary does 
on a day-to-day basis. On appeal counsel states that the beneficiary's duties include "on-site management of 
operations conducted by the construction aspect of the company" and "making management decisions with 
respect to projects, timelines, costs and productivity". 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 as petitioner has done in the instant case. 
Fedin Bros. Co., Ltd. v. Suva, 724 F. Supp. at 1103 (E.D.N.Y. 1989), aff'd, 905 F.2d 41 (2d. Cir. 1990). The 
actual duties themselves reveal the true nature of the employment. Id. In the instant case petitioner has not 
detailed exactly what the daily duties of the beneficiary are on a day-to-day basis and illustrating how they are 
managerial or executive in nature versus the performance of tasks necessary to provide a product or service. 
The second issue in this matter is the lack of evidence that petitioner is doing business. The term "doing 
business" is defined in the regulations as "the regular, systematic, and continuous provision of goods andlor 
services by a qualifying organization and does not include the mere presence of an agent or office of the 
qualifying organization in the United States and abroad." 8 C.F.R. tj 214.2(1)(l)(ii). The petitioner has not 
submitted any further evidence that existed at the time of filing from the normal course of business upon the 
successful completion or even implementation of such projects. Much of the "evidence" provided by counsel 
are summaries put together by petitioner long after they were requested by the director. See Summary of 
work done in 2002 and 2003, petitioner, undated, attached hereto as petitioner's appeal exhibit 5. Summaries 
of work compiled by the petitioner are insufficient to demonstrate the conduct of business as the underlying 
presumption that the work is actually occurring is not supported by any evidentiary submissions. 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). Evidence that is created after the director has given notice of a deficiency is not sufficiently 
independent or objective. Submitting a summary which relies on presumption of the fact summarized is not 
sufficient. The petitioner must submit independent and objective evidence demonstrating eligibility at the 
time the petition was filed. 
In the Request for Evidence the director asked petitioner to provide documentary support demonstrating that 
it has been doing business during 2002-2003. The regulations specifically allow the director to request 
additional evidence in appropriate cases. See 8 C.F.R. 9 214.2(1)(3)(viii). 
SRC-03-117-51565 
Page 9 
Counsel has submitted several contracts as evidence of doing business but then admits that these are 
"examples of the work petitioner was conducting . . . between 2002 - 2003." All of the agreements submitted 
are contingent on "funding dates" which are not given anywhere. In short, the contracts have not been 
performed and are merely executory. There is also, as mentioned by the director, no subsequent evidence that 
the projects were ever funded or ever took place. The non-existence or other unavailability of required 
evidence creates a presumption of ineligibility. 8 C.F.R. 9 103.2(b)(2)(i). Other documents submitted as 
evidence of doing business are summaries compiled by petitioner of factual assertions without documentary 
support for the underlying assertion. 
Failure to submit all evidence requested by the director is grounds for denial based on abandonment. 8 C.F.R. 
tj 103.2@)(13). It is noted that the required initial evidence for a new office extension was never submitted, 
another ground for denial based on abandonment. 8 C.F.R. 3 103.2(b)(13). The non-existence or other 
unavailability of required evidence creates a presumption of ineligibility. 8 C.F.R. 5 103.2(b)(2)(i). 
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), affd. 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). 
The petition will be denied for the above stated reasons, with each considered as an independent and 
alternative basis for denial. 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. 8 1361. Here, that burden has 
not been met. Consequently, the appeal will be dismissed and the petition is hereby denied. 
ORDER: The appeal is dismissed.