dismissed L-1A Case: Construction

um&hgdta&~b 
c 
t clearly unw~tad 
ion of persona1 privacy 
PUBWC COPY 
U.S. Department of lIomelrnd Security 
20 Mass. Ave, N.W. Rm. A3042 
Wash~ngton, DC 20529 
U. S. Citizenship 
and Immigration 
File: LIN 04 214 52759 Office: NEBRASKA SERVICE CENTER Date: APR 0 3 2006 
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. 9 1 101(a)(15)(L) 
IN BEHALF OF PETITIONER: SELF-REPRESENTED 
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. 
L 
/~obert Lkietnann, D~rector 
Administrative Appeals Office 
LIN 04 214 52759 
Page 2 
DISCUSSION: The Director, Nebraska Service Center, denied the petition for a nonirnmigrant visa, and 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 president as an L-1A 
nonimmigrant intracompany transferee pursuant to section lOl(a)(15)(L) of the Immigration and Nationality 
Act (the Act), 8 U.S.C. 9 110l(a)(15)(L). The petitioner is a corporation organized in the State of Florida that 
was subsequently granted for an additional year. The petitioner now seeks to extend the beneficiary's stay for 
an additional three years. 
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. On appeal, counsel' for the 
petitioner contends that the beneficiary has been performing exclusively executive duties since the beginning 
of his employment with the U.S. entity. In support of this contention, counsel submits a brief and additional 
evidence. 
To establish eligibility for the L-1 nonimmigrant visa classification, the petitioner must meet the criteria 
outlined in section 101(a)(15)(L) of the Act. Specifically, a qualifying organization must have employed the 
beneficiary in a qualifying managerial or executive capacity, or in a specialized knowledge capacity, for one 
continuous year within three years preceding the beneficiary's application for admission into the United 
States. In addition, the beneficiary must seek to enter the United States temporarily to continue rendering his 
or her services to the same employer or a subsidiary or affiliate thereof in a managerial, executive, or 
specialized knowledge capacity. 
The regulation at 8 C.F.R. 5 214.2(1)(3) states that an individual petition filed on Form 1-129 shall be 
accompanied by: 
(i) 
 Evidence that the petitioner and the organization which employed or will employ the 
alien are qualifying organizations as defined in paragraph (l)(l)(ii)(G) of this section. 
(ii) 
 Evidence that the alien will be employed in an executive, managerial, or specialized 
knowledge capacity, including a detailed description of the services to be performed. 
I 
It is noted that the petition and appeal were prepared by an attorney in Canada. Although the petition is 
accompanied by a Form G-28, Notice of Entry of Appearance by an Attorney or Representative, the Canadian 
attorney has not established that she is a licensed attorney or an accredited representative authorized to 
undertake representations on a petitioner's behalf. See 8 C.F.R. $292.1. Moreover, the foreign attorney's 
claim to a right to notice in this proceeding under 5 U.S.C. $ 500(f) is unfounded, as she has not demonstrated 
that she is qualified under either section 500(f) or (c) of that same title. Accordingly, the foreign attorney's 
appearance will not be recognized, and the assertions made by the foreign attorney will not be given any 
weight in this proceeding. 
LJN 04 214 52759 
Page 3 
(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 primary issue in this matter is whether the beneficiary will be employed by the United States entity in a 
primarily managerial or executive capacity. Although the petitioner alleges that the beneficiary has been 
operating in a capacity that is primarily executive, the AAO will consider the beneficiary's eligibility under 
the regulatory definitions of both managerial and executive capacity. 
Section 10 1 (a)(44)(A) of the Act, 8 U.S.C. 9 1 10 1 (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. 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; 
LIN 04 214 52759 
Page 4 
(iii) 
 exercises wide latitude in discretionary decision making; and 
(iv) 
 receives only general supervision or direction from higher level executives, the board 
of directors, or stockholders of the organization. 
With the initial petition, counsel submitted a letter of support from the petitioner's vice president, which 
described the beneficiary's duties as follows: 
As president of [the petitioner, the beneficiary] will be in charge of the overall management, 
procedures, and operations as well as overseeing the hiring and training of key American 
personnel. He will also be responsible for the customer relations, market research and 
development and the overall administration of the company. He will be in charge of the 
administration of the corporation and head the negotiations with our clients. 
The petitioner also provided an organizational chart which demonstrated the beneficiary's position in the 
petitioner's organizational hierarchy. Specifically, the chart indicated that the beneficiary oversaw the vice- 
president, and that both he and the vice-president, Raphael Francoeur, jointly supervised and/or were assisted 
by an unidentified executive assistant. The chart further demonstrated that below the vice-president were two 
unnamed supervisors, namely, an insulation supervisor and an exterior coating installation supervisor. Below 
these supervisors were multiple laborer positions, all of which were unfilled. 
The director found this initial evidence to be insufficient, and consequently issued a request for evidence 
(RFE) on August 5, 2004. The RFE requested the petitioner to submit additional information that established 
that the beneficiary would function in a capacity that was primarily managerial or executive. Specifically, the 
director requested more specific evidence of the beneficiary's duties as president, along with an overview of 
his position in the organizational hierarchy of the petitioner and the duties and roles of his subordinates. 
In a response dated August 20, 2004, the petitioner, through counsel, submitted the requested information. 
The petitioner indicated that the beneficiary was functioning in an executive capacity, and provided the 
following updated description of his duties: 
I. Direct the management of the organization or a major component or function of the 
organization[./ 
As President and founder of the Canadian and American company, [the beneficiary] has 
executive authority on all the operations of the companies [sic]. [The beneficiary] has 
created and managed the Canadian company since 1993. He has acquired proprietary 
knowledge that makes him the only possible choice as the President of the American 
company. He represents the company or delegate[s] representatives to act on behalf of 
the company in negotiations and/or other official functions. He has the last word on any 
direction the company takes. 
2. Establishes the goals and policies of the organization, component, or function(./ 
LIN 04 214 52759 
Page 5 
[The beneficiary] establishes the short-term and long-term goals for the company and 
decides on a series of strategies and policies to ensure that these specific goals are 
achieved in the most effective way. He is [the] individual responsible for the success of 
the company. 
3. Exercises wide latitude in discretionary decision-making[.] 
[The beneficiary] 
Allocates all material, human, and financial resources to implement company 
policies and programs; 
Establish[es] all financial and administrative controls; 
Approve[s] overall personnel planning. 
4. Receives only general supervision and direction from higher level executive[sJ, the 
board of directors, or stockholders of the organization(./ 
[The beneficiary] is the Owner and President of the company. He does not report to 
anybody. 
The petitioner further provided information with re 
 he U.S. entity, and advised that in 
addition to the beneficiary and the vice-presiden 
 the petitioner also employed the 
following employees: 
The petitioner also provided copies of its W-2 Forms for 2003, which demonstrated that only the beneficiary 
and the vice-president were employed by the petitioner in 2003. The petitioner submitted quarterly wage 
reports for the quarters ending March 3 1, 2004 and June 30, 2004, both of which reported wages paid only to 
the beneficiary and the vice-president during this period. With regard to the newly-identified workers, the 
petitioner submitted some additional documentation, in the form of what appear to be payroll records, for 
various periods during 2003 and 2004. 
On September 15, 2004, the director denied the petition. The director found that the evidence in the record 
failed to establish that the beneficiary would be functioning in a primarily managerial or executive capacity. 
Specifically, the director concluded that the beneficiary would be performing the day-to-day tasks of the 
organization and would act as a first-line supervisor as opposed to a manager or executive as required by the 
regulations. 
On appeal, counsel asserts that the director's conclusion was erroneous and that the beneficiary in fact is 
primarily an executive. She claims that the beneficiary's proprietary knowledge of the petitioner's business 
makes his services absolutely essential to the success of the U.S. enterprise and that since the beneficiary 
LIN04214 52759 
Page 6 
personally holds the necessary licenses essential to the petitioner's operations, his services in the United States 
are not expendable. 
Upon review, counsel's assertions are not persuasive. Whether the beneficiary is a manager or executive 
employee turns on whether the petitioner has sustained its burden of proving that his duties are "primarily" 
managerial or executive. See $5 101(a)(44)(A) and (B) of the Act. In this case, the petitioner asserts that the 
beneficiary is primarily an executive by virtue of his position title, experience, and associated duties. 
However, the description of duties provided is vague and not comprehensive in that it fails to specify the 
exact nature of the claimed qualifying duties. 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. Suva, 724 F. Supp. 1103 (E.D.N.Y. 
1989), afd, 905 F.2d 41 (2d. Cir. 1990). 
The description of the beneficiary's duties, provided in the initial letter of support as well as in response to the 
director's request for evidence, is vague and seems to merely paraphrase the regulatory definitions. More 
specifically, counsel on appeal addresses each prong of the reguIatory definitions and summarizes the 
beneficiary's duties by inserting the key language of the regulations. The description of duties provided, 
however, does not specifically identify what the beneficiary actually does on a routine workday. The 
identification of duties such as "establish short-term and long-term goals," "establish all financial and 
administrative controls," and "approve overall personnel planning" did little to clarify what the beneficiary 
does on an average workday. In fact, some of these duties are extremely similar to the executive duties set 
forth in section 10 1 (a)(44)(B) of the Act, 8 U.S.C. 8 1 10 1 (a)(44)(B). 
Additionally, the director based his decision partially on the size of the enterprise and the number of staff 
employed by the enterprise. As required by section 101(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. 
At the time of filing, the petitioner was a 5-year-old exterior insulation and plastering business that claimed to 
have a gross annual income of $456,977.00. The firm employed the beneficiary as president, plus a 
vice-president. In response to the request for evidence, the petitioner submitted copies of payroll documents 
dated March 27,2004 and May 29,2004 which suggested that wages were paid to a polymer specialist, and in 
addition, the petitioner submitted copies of payroll records from January and February 2003 which suggested 
that wages were paid to two laborers during ,that period. The petitioner relies on this scant evidence as 
support for its claim that the beneficiary is primarily an executive. This evidence, however, is not acceptable 
for several reasons. 
With regard to the March 27, 2004 and May 29, 2004 wage documents suggesting the employment of a 
polymer specialist, there are numerous problems. First, the petitioner's quarterly wage reports for the quarters 
ending March 31, 2004 and June 30, 2004 do not list wages paid to the named polymer specialist. In fact, 
these documents indicate that wages were paid to only two employees during those two quarters; namely, the 
beneficiary and the vice-president. In addition, these documents are submitted in the French language 
without a certified translation. Because the petitioner failed to submit certified translations of the documents, 
LIN 04 214 52759 
Page 7 
the AAO cannot determine whether the evidence supports the petitioner's claims. See 8 C.F.R. 9 103.2(b)(3). 
Accordingly, the evidence is not probative and will not be accorded any weight in this proceeding. 
Consequently, the claim that the polymer specialist was employed by the petitioner at the time of filing is 
uncorroborated and cannot be established. 
Second, the documentation showing wages paid to two laborers in January and February 2003 is likewise 
insufficient. As previously stated in the body of this decision, the petitioner submitted its W-2 and W-3 
Forms for the calendar year 2003, which demonstrated that only two employees were paid wages by the 
petitioner in 2003; namely, the beneficiary and the vice-president. The wages allegedly paid to the laborers in 
the early months of that year are not documented. In addition, and most importantly, there is no evidence to 
indicate that these laborers were employed by the petitioner at the time the instant 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 ofMichelin Tire Corp., 17 I&N Dec. 248 (Reg. Comm. 1978). 
The petitioner, therefore, did not submit evidence that it employed any subordinate staff members who would 
perform the actual day-to-day, non-managerial operations of the company. Based on the petitioner's 
representations, it does not appear that the reasonable needs of the petitioning company might plausibly be 
met by the services of the beneficiary as president and a vice-president, without any other employees to 
perform the actual labor involved in providing exterior insulation and plastering. Regardless, 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 primarily 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. 
On appeal, counsel alleges that although the petitioner has become operational, it is still in an expansion 
phase. Additionally, the organizational chart submitted for the record indicates that the petitioner intends to 
hire two supervisors and several laborers in the future. Finally. counsel alleges that based on its success in 
securing lucrative contracts, the petitioner is destined to become a successful operation in the near future with 
the beneficiary as its president. These contentions are not persuasive. As previously stated, 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 
ofMichelin Tire Corp., 17 I&N Dec. at 248. 
In this matter, it appears that the beneficiary will be performing most of the day-to-day, non-qualifying tasks 
essential to the operations of the petitioner's business. While performing non-qualifying tasks necessary to 
produce a product or service will not automatically disqualify the beneficiary as long as those tasks are not the 
majority of the beneficiary's duties, the petitioner still has the burden of establishing that the beneficiary is 
"primarily" performing managerial or executive duties. 5 101(a)(44) of the Act. In this case, however, the 
petitioner has failed to establish that the beneficiary has a sufficient subordinate staff to relieve him from 
performing these non-qualifying duties. 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. 
Boyang, Ltd v. I.N.S., 67 F.3d 305 (Table), 1995 WL 576839 (9th Cir, 1995)(citing Matter of Church 
LIN 04 214 52759 
Page 8 
Scientology International, 19 I&N Dec. 593, 604 (Comm. 1988)). Absent evidence to the contrary, the record 
indicates that the beneficiary is not acting in a primarily managerial or executive capacity. For this reason, 
the petition may not be approved. 
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.