dismissed L-1A Case: Construction

U.S. Department of Homeland Security 
U.S. Citizenship and Imm~gration Services 
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 U. S. Citizenship 
and Immigration 
File: WAC 08 098 5 1367 0ffice:CALIFORNU SERVICE CENTER Date: MAR 3 0 2009 
Petition: 
 Petition for a Nonimmigrant Worker Pursuant to Section 10 1 (a)(15)(L) of the Immigration and 
Nationality Act, 8 U.S.C. fj 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. 
If you believe the law was inappropriately applied or you have additional information that you wish to have 
considered, you may file a motion to reconsider or a motion to reopen. Please refer to 8 C.F.R. § 103.5 for the 
specific requirements. All motions must be submitted to the office that originally decided your case by filing a 
Form I-290B, Notice of Appeal or Motion, with a fee of $585. Any motion must be filed within 30 days of the 
decision that the motion seeks to reconsider, as required by 8 C.F.R. 9 103.5(a)(l)(i). 
Appeals Office 
WAC 08 098 51367 
Page 2 
DISCUSSION: The Director, California Service Center, denied the petition for a nonimmigrant visa. The 
matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. 
The petitioner filed this nonimmigrant petition seeking to employ the beneficiary as an L-IA nonimmigrant 
intracompany transferee pursuant to section 10 l(a)( 15)(L) of the Immigration and Nationality Act (the Act), 8 
U .S.C. 9 1 10 1 (a)(15)(L). The petitioner, a Hawaii corporation engaged in general construction services, 
states that it is a subsidiary of -., located in the Philippines. It seeks to 
employ the beneficiary as its vice president of operations for a three-year period. 
The director denied the petition on May 30, 2008, concluding that the petitioner had failed to 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 director 
misinterpreted the evidence submitted and failed to understand the nature of the beneficiary's position, which 
counsel claims is clearly in a managerial or executive capacity. Counsel submits a brief and additional 
evidence in support of the appeal. 
To establish eligibility for the L-l 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. 
(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 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. 
WAC 08 098 5 1367 
Page 3 
, 
The sole issue address by the director is whether the petitioner established that the beneficiary will be 
employed in the United States in a primarily managerial or executive capacity. 
Section 10 1 (a)(44)(A) of the Act, 8 U.S.C. 5 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. fj 1 101 (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 fknction; 
(iii) 
 Exercises wide latitude in discretionary decision-making; and 
(iv) 
 Receives only general supervision or direction from higher level executives, the board of 
directors, or stockholders of the organization. 
The petitioner filed the nonimmigrant petition on February 21, 2008. The petitioner is described as a general 
construction service and claims to have approximately seven full-time employees, excluding subcontractors 
and temporary hires. It seeks to employ the beneficiary as its vice president of operations. The petitioner 
described the proposed position as follows: 
* WAC 08 098 5 1367 
Page 4 
Oversees construction management personnel and activities occurring at project 
construction sites. Travel to project sites periodically to review progress and provide 
guidance to Site Construction Manager. 
Resolves construction related issues that cannot be resolved by Site Construction 
Manager and or makes recommendations to supervisor as to how to resolve major 
issues. 
In cooperation with or under the direction of supervisor, prepares and evaluates bid 
packages and negotiations contracts with construction materials suppliers and 
contractors. 
Assist in the development and implementation of department policies and procedures, 
including those related to budgeting, scheduling and construction progress tracking. 
Work with the accounting department and other Project Management Department 
personnel to establish project costs. 
Aids in monitoring contract requirements to verify compliance and reviews pay request 
from vendors and contractors. 
Responsible for preparation, monitoring and updating of project budgets and 
schedules. 
Provides construction issue support for other departments. 
Reviews and approves draw requests to financing parties and/or owners for 
construction progress payments. 
Supervises Construction Site Manager and QA/QC Managers. Carries out supervisory 
responsibilities in accordance with the organization's policies and applicable laws. 
Other duties as assigned by President. 
The petitioner submitted an organizational chart which indicates that the beneficiary reports directly to an 
executive vice president, who in turn reports to the company's president. There are two 
positions that are depicted as lateral to the beneficiary's position - a vice president, marketing and a vice 
president of administration and finance. The chart indicates that the beneficiary supervises 
Manager of Construction and Engineering, and 
 Manager of Custodial Services. 
The petitioner submitted a payroll check register for the payroll period ended on February 15, 2008, which 
shows payments to the beneficiary, the vice president of administration, the president and the manager of 
construction and engineering. 
The director found the initial evidence insufficient to establish that the beneficiary would be employed in a 
primarily managerial or executive capacity. Accordingly, on February 25, 2008, the director issued a request 
for evidence (RFE) instructing the petitioner to submit: (1) a more detailed description of the beneficiary's 
specific duties in the United States and the percentage of time he spends performing each duty; (2) a more 
detailed organizational chart accompanied by information regarding each company employee including name, 
job title, job duties, education level, annual salary, immigration status and source of remuneration; (3) copies 
of the petitioner's quarterly wage reports and Federal quarterly tax returns (Form 941) for the last four 
quarters; and (4) evidence that the petitioner has engaged the services of independent contractors, including 
proof of payments, copies of contracts, and Forms 1099. 
In response to the director's request, the petitioner submitted the following expanded job description: 
: WAC 08 098 5 1367 
Page 5 
Owners' Consultant (4%). Reports directly to the company owners. Advises owners on all 
aspects of all construction projects including estimating, planning, budgeting, coordinating 
and directing of all construction related activities. Assists in the development and 
implementation of department policies and procedures, including those related to budgeting, 
scheduling and construction progress tracking. 
Bidding and Estimating (1 5%). Continually searches for government and private projects and 
recommends projects for bidding based on size, scope, schedule and complexity. Assembles 
list of licensed specialty contractors as required by specifications. Reviews and compares 
proposals from each subcontractor and suppliers for best value and negotiates as necessary. 
Determines direct costs and overhead and profit margins based on acceptable company 
practices. Attends pre-bid site visits for all contraction and non-construction projects. 
Planning (15%). After award of each project and taking other projects into account (in- 
progress and future), prepares a schedule using bar charts, coordinating each phase of the 
schedule with project owners, consultants, specialty contractors, etc. Continually updates 
schedule and advises every person involved of any schedule changes. Secures permits and 
licenses required by each project[.] 
Directing (45%). Oversees all construction management activities and personnel at all project 
sites. Visits project sites regularly to review progress and provide guidance to Site 
Construction supervisors and workers. Track progress of construction operations such as 
arrival and utilization of materials, supplies, tools, machinery, equipment, and vehicles. 
Resolves construction related issues that cannot be resolved by Site Construction Manager 
and or makes recommendations to supervisor as to how to resolve major issues. Reviews 
progress reports prior to submission to upper management. 
Coordinating (7%). Coordinates, through subordinate supervisory personnel, all activities 
concerned with the construction and maintenance of structures, facilities, and systems. 
Budgeting and Finance (7%). 
 Prepares cost proposals, monitors manhours expended in 
relation to job progress, assigns appropriate job activities to each worker in relation to their 
wage rates and skills, monitors usage and wastage of supplies and material. Monitors budget 
versus actual job cost and advises management of any discrepancies. Monitors construction 
progress versus projected schedule. Prepares request for payments based on actual job 
progress. Approves request for payments by subcontractors based on job progress. 
Supervisory Responsibilities (6%). Supervises all Construction Site managers, laborers, 
QA/QC Managers and non-construction personnel such as janitorial staff. Responsible for the 
screening and selection of qualified new employees and subcontractors. Evaluates employees 
performance under his supervision and prepares performance reports. Provides counseling to 
employees on areas needing improvements and insures only qualified and motivated 
employees are retained. Carries out supervisory responsibilities in accordance with the 
organization's policies and applicable labor laws. 
WAC 08 098 5 1367 
Page 6 
Ancillary Duties (1%). Alternate Safety Officer. Alternate Training Officer. Other duties 
assigned by President. 
The petitioner submitted an updated organizational chart which included employees not depicted on the chart 
provided at the time of filing. Specifically, the second chart indicates that the vice president of administration 
and finance supervises three personnel, the manager of custodial services supervises three personnel, the 
manager of engineering and construction supervises a project superintendent, , and 
supervises eight personnel. 
As evidence of its use of independent contractors, the petitioner submitted a list of subcontractors. To 
document its payments to contractors, the petitioner submitted: (I) a Western Union receipt showing a $4,000 
payment to in May 2007; (2) a price quotation from Access Signs & Graphics; and (3) 
copies of two checks issued to Mechanical Trends in May 2008. The AAO notes that appears to 
work for the petitioner's office in Guam. The petitioner did not provide copies of contracts or Forms 1099 
evidencing its use of contract personnel. 
The petitioner provided a list of twelve employees claimed to be supervised by the beneficiary, along with 
their job titles, education level, annual salaries and a brief description of job duties. The construction 
employees listed include the quality control and construction managerlsafety officer, the project 
superintendent, three carpentersllaborers, one masonllaborer, one part-time electrician, one part-time laborer, 
and one employee whose job title was not identified. The petitioner indicated that the beneficiary's immediate 
subordinate has a bachelor's degree in civil engineering. The salaries listed for the subordinate construction 
employees ranged from $66,000 for the construction manager, $1 10,000 for the project superintendent, and 
$83,200 for each carpenterllaborer. The beneficiary's proposed salary is $48,000, considerably lower than that 
of the subordinate staff he is claimed to supervise. The employee list also included three custodians (one of 
which was previously identified as a manager), whose salaries range from $4,290 to $8,500. 
The petitioner's evidence shows that in 2007, the company paid a total of $18,600 to construction employees, 
including the president, the vice president of finance and administration, and the beneficiary. The petitioner 
paid a total of $20,611 to five custodial personnel during 2007. The petitioner also submitted year-to-date 
payroll reports for its construction and custodial staff, dated May 3, 2008. The report shows payments to nine 
construction laborers who worked between 15 and 57 hours. , the project superintendent, was 
listed among the laborers and worked only 42 hours. The company paid total wages of $72,687 to managerial 
and construction personnel through the first four months of 2008. 
The director denied the petition on May 30, 2008, concluding that the petitioner failed to establish that the 
beneficiary would be employed in a primarily managerial or executive capacity. In denying the petition, the 
director emphasized that the petitioner failed to provide evidence that it employed the subordinate staff 
claimed to be working under the beneficiary's supervision at the time the petition was filed. The director 
further noted that it did not appear that the petitioner has the ability to pay the salaries listed for the 
beneficiary's claimed subordinate employees. The director thus concluded that the petitioner did not establish 
that the beneficiary would be relieved from performing non-managerial duties. 
On appeal, counsel for the petitioner asserts that the director misinterpreted the nature of the beneficiary's 
position with the petitioner, and failed to understand that he does in fact perform the high-level 
- WAC 08 098 51367 
Page 7 
responsibilities contemplated by the statutory definitions of managerial and executive capacity. Counsel 
further explains the beneficiary's role as follows: 
[The beneficiary] has been involved in every aspect of petitioner's company. He is 
responsible for the supervision of daily operations of the company. His duties include 
overseeing particular projects, assessing their progress and attending to the various needs of 
the site supervisors. [The beneficiary] is often responsible for bidding and estimating 
potential projects as opportunities for the company arise. 
Despite that fact that his main function is at the executive level of the company, [the 
beneficiary] is not above performing more menial duties as they arise. Such duties include 
ordering and delivering construction material. Should the situation demand it, [the 
beneficiary] is willing and able to participating [sic] in actual construction work. However, 
these duties are performed at the sole discretion of [the beneficiary] and in not way impinge 
on his primary function as supervisor. As [the petitioner] continues to grow as a business, the 
need for [the beneficiary] to assist in these respects will diminish altogether. 
In support of the appeal, the petitioner submits letters from five of its clients and associates, who confirm the 
beneficiary's involvement in the petitioner's projects during 2008, and describe the beneficiary as "an 
invaluable asset," whose absence could delay project completion. 
The petitioner submits payroll records for the months of May through July 2008. As of July 2008, the 
petitioner appears to employ four full-time employees, including the beneficiary, and two-part time 
employees. 
Upon review, and for the reasons discussed below, the petition has not established that the beneficiary will be 
employed in the United States in a primarily 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. 5 214.2(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 
in either an executive or a managerial capacity. Id. 
The definitions of executive and managerial capacity have two parts. First, the petitioner must show that the 
beneficiary performs the high-level responsibilities that are specified in the definitions. Second, the petitioner 
must prove that the beneficiary primarily performs these specified responsibilities and does not spend a 
majority of his or her time on day-to-day functions. Champion World, Inc. v. INS, 940 F.2d 1533 (Table), 
1991 WL 144470 (9th Cir. July 30, 1991). While it appears that the beneficiary in this matter would perform 
some managerial duties in his capacity as vice president of operations, the evidence of record falls short of 
establishing that the beneficiary would be performing primarily managerial or executive duties. 
The petitioner has provided a lengthy, but vague and nonspecific description of the beneficiary's duties that is 
insufficient to establish that the beneficiary would be employed in a primarily managerial or executive 
capacity. For example, the petitioner generally classified the beneficiary's duties as consulting with the 
company owners, bidding and estimating, planning, directing, coordinating, budgeting and finance, and 
supervision. The petitioner indicated that all duties would be managerial and that 99% of the beneficiary's 
- WAC 08 098 51367 
Page 8 
time would be delegated to such functions. However, the petitioner identified only broad managerial functions 
and offered little specific information as to what the beneficiary would be doing on a day-to-day basis as the 
petitioner's vice president of operations. For example, the petitioner indicates that the beneficiary devotes the 
largest portion of his time to "directing" which includes overseeing "all construction management activities," 
tracking and reviewing progress, and resolving "issues." This description offers little insight into the specific 
tasks the beneficiary performs. 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. 1103 (E.D.N.Y. 1989), afd, 905 F.2d 
41 (2d. Cir. 1990). 
Furthermore, the description suggests that the beneficiary will primarily cany out his responsibilities through 
subordinate personnel, yet, as discussed further infia, the record contains very little documentation of such 
employees and the job description, as a whole, is not supported by the totality of the evidence. 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 failed to provide any detail 
or explanation of the beneficiary's activities in the course of his daily routine. The actual duties themselves 
will reveal the true nature of the employment. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1103, 1108 
(E.D.N.Y. 1989), afS, 905 F.2d 41 (2d. Cir. 1990). 
Finally, the AAO notes that, on appeal, counsel concedes that the beneficiary "is not above performing more 
menial duties," such as ordering and delivering construction materials and participating in actual construction 
work. While counsel submits that there will be less need for the beneficiary to participate in such activities as 
the company grows, and claims that such duties "in no way impinge on his primary function as a supervisor." 
However, it must be noted that the petitioner did not include such "menial duties" in either previous iteration 
of the beneficiary's job duties. Thus, it is reasonable to conclude that the petitioner's description of the 
beneficiary's duties was either inaccurate or incomplete. 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. Matter of Ho, 19 I&N Dec. 582, 591 (BIA 1988). The AAO will not accept 
counsel's unsupported assertions that the "menial tasks" described are secondary to the claimed managerial 
tasks. 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). 
Overall, absent a clear, specific, consistent and credible description of the actual duties to be performed and 
the amount of time he will devote to managerial duties, it cannot concluded that the beneficiary's position 
with the U.S. company will be in a primarily managerial or executive capacity. 
The petitioner's description of the beneficiary's duties cannot be read or considered in the abstract, rather the 
AAO must determine based on a totality of the record whether the description of the beneficiary's duties 
represents a credible perspective of the beneficiary's role within the organizational hierarchy. A review of the 
record with respect to the petitioner's staffing levels undermines the petitioner's claim that the beneficiary 
will primarily perform managerial or executive duties. 
The statutory definition of "managerial capacity" allows for both "personnel managers" and "function 
managers." See section 101 (a)(44)(A)(i) and (ii) of the Act, 8 U.S.C. 5 1 10 1 (a)(44)(A)(i) and (ii). Personnel 
1 WAC 08 098 5 1367 
Page 9 
managers are required to primarily supervise and control the work of other supervisory, professional, or 
managerial employees. Contrary to the common understanding of the word "manager," the statute plainly 
states that 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 
lOl(a)(44)(A)(iv) of the Act; 8 C.F.R. 5 214.2(1)(1)(ii)(B)(2). If a beneficiary directly supervises other 
employees, the beneficiary must also have the authority to hire and fire those employees, or recommend those 
actions, and take other personnel actions. 8 C.F.R. 5 2 14.2(1)(1)(ii)(B)(3). 
Here, the petitioner initially indicated that the beneficiary will directly supervise site construction managers, 
project superintendents, site supervisors, quality assurance/quality control managers and laborers, as well as 
independent contractors. However, the petitioner has not corroborated its claim that it actually employed the 
majority of the subordinate staff as of February 2008 when the petition was filed. 
At the time of filing, the petitioner claimed to have seven payroll employees including the president, an 
executive vice president, three vice presidents, and two managers. The petitioner did not indicate that it had 
any lower-level staff to perform the actual construction work, nor did the petitioner provide evidence of 
payments to subcontracted staff, other than two payments totaling $20,000 paid three months after the petition 
was filed. At the same time, the petitioner claims to be simultaneously engaged in multiple construction 
projects. The beneficiary's claimed subordinate, does appear to have been hired just prior to the 
filing of the petition, but the petitioner has not established that he was supervising subordinate employees in 
his capacity as engineering and construction manager. 
Although the petitioner later submitted an organizational chart showing that the beneficiary supervises two 
managers who in turn supervise a total of 1 1 subordinates, 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). Furthermore, the petitioner's payroll records through May 2008 did not support 
its claims that its laborers and subordinate construction managers were earning the claimed wages ranging 
from $66,000 to $1 10,000 annually. According to the payroll records, the construction laborers were working 
part-time for considerably lower wages. Finally, the AAO notes that the beneficiary's offered salary of 
$48,000 is considerably lower than that of his claimed direct and indirect subordinates. Although a 
beneficiary's salary is not indicative of his employment capacity, the discrepancy here is significant and raises 
questions regarding his actual level of authority in the company. 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 petitioner has not established that it actually employs, either directly or indirectly, the majority of the 
claimed subordinate staff of managers, site supervisors and laborers that the beneficiary is claimed to 
supervise. Going on record without supporting documentary evidence is not sufficient for purposes of 
meeting the burden of proof in these proceedings. Matter of Soflci, 22 I&N Dec. 158, 165 (Comm. 1998) 
(citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm. 1972)). Therefore, 
notwithstanding the petitioner's assertions, the record does not support a finding that the beneficiary will 
supervise and control a subordinate staff composed of supervisory, professional, or managerial employees, as 
required by section lOl(a)(44)(A)(ii) of the Act. Furthermore, the lack of evidence relating to subordinate 
personnel and contract staff working for the company at the time of filing raises questions as to who would be 
WAC 08 098 51367 
Page 10 
performing the company's day-to-day activities, or, alternatively, the credibility of the petitioner's claims 
regarding the scope of its operations. 
The term "function manager" applies generally when a beneficiary does not supervise or control the work of a 
subordinate staff but instead is primarily responsible for managing an "essential function" within the 
organization. See section 10 1 (a)(44)(A)(ii) of the Act, 8 U.S.C. 5 1 10 1 (a)(44)(A)(ii). The term "essential 
function" is not defined by statute or regulation. If a petitioner claims that the beneficiary is managing an 
essential function, the petitioner must furnish a position description that clearly describes the duties to be 
performed in managing the essential function, i.e. identify the function with specificity, articulates the 
essential nature of the function, and establish the proportion of the beneficiary's daily duties attributed to 
managing the essential function. See 8 C.F.R. 5 214.2(1)(3)(ii). In addition, the petitioner's description of the 
beneficiary's daily duties must demonstrate that the beneficiary manages the function rather than performs the 
duties related to the function. An employee who "primarily" performs the tasks necessary to produce a 
product or to provide services is not considered to be "primarily" employed in a managerial or executive 
capacity. See sections 101(a)(44)(A) and (B) of the Act (requiring that one "primarily" perform the 
enumerated managerial or executive duties); see also Matter of Church Scientology Int'l., 19 I&N Dec. 593, 
604 (Comm. 1988). 
While the record establishes that the beneficiary will likely have oversight authority over the day-to-day 
activities of construction projects secured by the company in the future, it does not contain sufficient evidence 
to establish that he would assume primarily managerial duties upon approval of the petition. While the 
petitioner's organization may eventually develop to the point where it requires the beneficiary's services in a 
primarily managerial capacity, 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). The 
petitioner did not establish that it had subordinate staff in place at the time of filing to relieve the beneficiary 
from primarily performing non-qualifying operational or first-line supervisory tasks associated with the 
petitioner's construction activities. 
Overall, the petitioner's claims are undermined by its failure to provide a detailed, credible description of the 
beneficiary's duties, and its failure to document that it employs the beneficiary's claimed subordinate and 
contract staff. Again, 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)). 
Based on the foregoing discussion, the petitioner has not established that the beneficiary will be employed in 
the United States in a primarily managerial or executive capacity. Accordingly, the appeal will be dismissed. 
Beyond the decision of the director, the petitioner has not established that the U.S. company and the 
beneficiary's foreign employer maintain a qualifying relationship. To establish a "qualifying relationship" 
under the Act and the regulations, the petitioner must show that the beneficiary's foreign employer and the 
proposed U.S. employer are the same employer (i.e. one entity with "branch" offices), or related as a "parent 
and subsidiary" or as "affiliates." See generally section 101(a)(15)(L) of the Act; 8 C.F.R. 5 214.2(1). 
: WAC 08 098 51367 
Page 11 
The petitioner stated on Form 1-129 that the U.S. company is a subsidiary of the foreign entity - 
," located in the Philippines. In a letter dated February 20, 2008, counsel for the 
petitioner described the relationship between the two companies as follows: 
began as a sole proprietorship started by [the 
beneficiary] in the year 2000. In January of 2004, [the beneficiary] then sold 50% of his 
shares to of [the petitioner]. Subsequently, in November of 2004, the 
companies also formed a joint venture agreement called. Also 
find attached hereto as Exhibit "9" is the Joint Jenture [sic] agreement signed by both 
principal companies. The Joint Venture was formed between the two companies so that they 
could pursue jobs together in the Philippines and expand into US Federal jobs in Guam. The 
two companies have collaborated to work together on projects in both Guam and the 
Philippines abroad. 
The ~etitioner attached a document labeled "Exhibit A. Consent Form." which refers to the "Joint Venture 
~~reement dated November 15, 2004 . . . by and among but did nor provide a 
copy of the actual joint venture agreement. 
The petitioner also submitted a Certificate of Business Name Registration issued by the Department of Trade 
and Industry in the Philippines, showing that the beneficiary registered to do business as - 
from May 26, 2005 until May 26, 2010. The petitioner also submitted the 
beneficiary's individual tax returns and independent auditor's report which show that he operates a sole 
proprietorship in the Philippines. The evidence of record shows that 
 is the sole owner of the 
U.S. company. 
Upon review, the petitioner has not established that the petitioner and the foreign entity have a qualifying 
relationship. 
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 Church 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 the 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 Dec. at 595. 
The petitioner has not established any common ownership and control between the foreign entity and the 
petitioning company. Although counsel claims that the beneficiary sold 50 percent of his "shares" in the 
foreign entity to in January 2004, it has not explained why the beneficiary has continued to 
register the business and pay taxes in the Philippines as a sole proprietor. The petitioner has failed to submit 
documentary evidence of claimed 50 percent ownership in the foreign entity. 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. at 165. 
With respect to the claimed joint venture between the petitioner and the foreign entity, USCIS accepts the 
:WAC 08 098 51367 
Page 12 
interpretation that a 50-50 joint venture creates a subsidiary relationship for purposes of section 101(a)(15)(L) 
of the Act. See 8 C.F.R. 3 214.2(1)(l)(ii)(K). Neither the Act nor the regulations provides a definition of the 
term "joint venture." However, the AAO has applied a broad definition of joint venture in prior decisions. 
Matter of Hughes states that a joint venture is "a business enterprise in which two or more economic entities 
from different countries participate on a permanent basis." Matter of Hughes, 18 I&N Dec. 289 (Comm. 
1982) (quoting a definition from International Business Enterprise (Prentice Hall, 1973)). 
Matter of Siemens Medical Systems, Inc. states: "Where each of two corporations (parents) owns and controls 
50 percent of a third corporation (joint venture), the joint venture is a subsidiary of each of the parents." 19 
I&N Dec. 362, 364 (BIA 1986). In order to meet the definition of "qualifying organization," a joint venture 
must be formed as a corporation or other legal entity. 8 C.F.R. tj 214.2(1)(l)(ii)(G). A business created by a 
contract as opposed to one created under corporation law is not be deemed a "legal entity" as used in section 
101(a)(15)(L) of the Immigration and Nationality Act. Matter of Hughes, 18 I&N Dec. 289, 294 (Comm. 
1982); see also Matter of Schick, 13 I&N Dec. 647 (Reg. Comm. 1970). 
As noted above, the petitioner did not provide a copy of the actual joint venture agreement. It is unclear if the 
agreement is more than a contractual arrangement between the petitioner and the beneficiary, as there is no 
evidence of a bona fide "third corporation," or other legal entity created as a result of the agreement. Such 
evidence would include articles of incorporation or articles of organization for the company formed as a result 
of the joint venture agreement and evidence that the company is doing business. 
Further, it is noted that, even if the petitioner and the foreign entity had formed a qualifying 50-50 joint 
venture prior to the date of filing the petition, the petitioner in this case is not the joint venture itself, but 
rather one of the partners or shareholders in the claimed joint venture. The partners or shareholders of a 50-50 
joint venture do not acquire a qualifying corporate relationship by virtue of forming a joint venture; the 
qualifying relationship formed exists only between each individual parent and the joint venture entity. The 
limited evidence in the record indicates that the beneficiary, while employed abroad, was employed by his 
own sole proprietorship and not by the "joint venture." 
Based on the foregoing discussion, the petitioner and the foreign entity do not have a qualifying relationship 
for the purposes of this visa classification. For this additional reason, the petition cannot be approved. 
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. When the AAO denies a petition on multiple alternative grounds, a plaintiff can 
succeed on a challenge only if he or she shows that the AAO abused its discretion with respect to all of the 
AAO's enumerated grounds. See Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d at 1043. 
In visa petition proceedings, the burden of proving eligibility for the benefit sought remains entirely with the 
petitioner. Section 291 of the Act, 8 U.S.C. tj 1361. Here, the petitioner has not met that burden. 
ORDER: The appeal is dismissed.