dismissed L-1A Case: Construction

U.S. Department of Homeland Security 
20 Massachusetts Ave., N.W., Rrn. 3000 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
File: WAC 08 012 50706 Office: CALIFORNIA SERVICE CENTER Date: 6 2008 
IN RE: 
Petition: 
 Petition for a Nonimmigrant Worker Pursuant to Section 10 1 (a)@ 5)(L) of the Immigration 
and Nationality Act, 8 U.S.C. $ 1101(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. 
A inistrative Appeals Office 
P 
WAC 08 012 50706 
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 AAO will dismiss the appeal. 
The petitioner filed this nonimmigrant visa petition seeking to employ the beneficiary as its president as an L- 
1A nonimmigrant intracompany transferee pursuant to section 1 O l (a)(15)(L) of the Immigration and 
Nationality Act (the Act), 8 U.S.C. 5 1101(a)(15)(L). The petitioner is a corporation organized under the laws 
of the State of Arizona and is allegedly in the construction business. 
The director denied the petition concluding that the petitioner failed to establish: (1) that it and the foreign 
employer are qualifying organizations; (2) that the beneficiary will be employed in the United States in a 
primarily managerial or executive capacity; or (3) that the beneficiary was employed abroad 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 asserts that the petitioner and the foreign 
entity are "affiliates" both controlled by the beneficiary and that the beneficiary has been and will be 
employed in a managerial or executive capacity. Counsel also argues that the director should have requested 
additional evidence prior to denying the petition. In support of the appeal, 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. tj 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 hider to perform the intended 
WAC 08 012 50706 
Page 3 
services in the United States; however, the work in the United States need not be the 
same work which the alien performed abroad. 
I. Qualifying Relationship 
The first issue is the present matter is whether the petitioner has established that it has a qualifying 
relationship with the foreign employer. 
The regulation at 8 C.F.R. 5 214.2(1)(3)(i) states that a petition filed on Form 1-129 shall be accompanied by 
"[elvidence that the petitioner and the organization which employed or will employ the alien are qualifying 
organizations." Title 8 C.F.R. fj 214.2(1)(l)(ii)(G) defines a "qualifying organization" as a firm, corporation, 
or other legal entity which "meets exactly one of the qualifying relationships specified in the definitions of a 
parent, branch, affiliate or subsidiary specified in paragraph (l)(l)(ii) of this section" and "is or will be doing 
business." "Affiliate" is defined in pertinent part as "[olne of two subsidiaries both of which are owned and 
controlled by the same parent or individual" or as "[olne of two legal entities owned and controlled by the same 
group of individuals, each individual owning and controlling approximately the same share or proportion of each 
entity." 8 C.F.R. $9 214.2(1)(1)(ii)(L)(I)-(2). 
In this matter, the petitioner asserts that it is an "affiliate" of the foreign employer. While the petitioner claims in 
the Form 1-129 to be 100% owned and controlled by the beneficiary, counsel notes in an undated letter appended 
to the petition that the beneficiary has "divested himself of most of the shares of [the foreign employer]." 
Consistent with this claim, the petitioner submitted organizational documents and stock certificates pertaining to 
both the United States entity and the foreign employer, a Canadian corporation. The Canadian stock certificates 
and resolutions indicate that. as of Se~tember 7.2006. the beneficiarv owned 100 shares of "Class A" stock in the 
Canadian corporation. The beneficiary's children, 
 and , each owned 50 shares, and 
- owned 100 shares. Accordingly, the beneficiary appears to own a 33.3% interest in the foreign 
corporation represented by 100 "Class A" shares of stock. 
Furthermore, the petitioner submitted copies of resolutions addressing the beneficiary's divestiture of a majority 
of his shares in the Canadian co oration and the appointment of 
 as president, = 
as vice president, and 
 as secretary-treasurer.- 
and are also the three directors of the corporation. It appears as if the beneficiary is no longer a 
director or officer of the Canadian corporation. 
The petitioner also submitted a fifth stock certificate, C-1, which indicates that the beneficiary owns 10,000 
"Class C" shares of stock in the Canadian corporation. However, the petitioner did not submit any evidence 
addressing the significance of these "Class C" shares, such as a Shareholders' Agreement. It is noted that, while 
the petitioner submitted a copy of the articles of incorporation for the Canadian corporation, these articles fail to 
address the different classes of stock or their corresponding voting rights, if any. Finally, it is noted that the 
record is devoid of any proxy agreements or other evidence divesting, or 
of the power to legally vote their shares or otherwise exercise majority control over the 
corporation. 
WAC 08 012 50706 
Page 4 
On October 24, 2007, the director denied the petition. The director concluded that the petitioner failed to 
establish that it has a qualifying relationship with the foreign employer. 
On appeal, counsel asserts that the record establishes that the two entities are "affiliates" as defined in the 
regulations. 
 Specifically, counsel argues that the Canadian corporation is owned and controlled by the 
beneficiary as its "largest shareholder." Counsel also argues that the beneficiary, as the prior sole director of the 
corporation and as the holder of a Quebecois contractor license, has both de facto and de jure control over the 
Moreover, counsel submits as additional evidence affidavits from-and - 
in which these two shareholders, the beneficiary's children, express their intention to vote their shares, if 
necessary, in accordance with the beneficiary's wishes, and additional business documents which purportedly 
establish that the beneficiary is the "effective head" of the Canadian corporation. Finally, counsel argues that the 
director should have requested additional evidence prior to denying the petition. 
Upon review, counsel's assertions are not persuasive. 
As a threshold issue, the AAO will address counsel's claim that the director should have first requested 
additional evidence prior to denying the instant petition. 
Title 8 C.F.R. 9 103.2(b)(8)(ii), the revision of which went into effect on June 18, 2007, states as follows: 
If all required initial evidence is not submitted with the application or petition or does not 
demonstrate eligibility, [Citizenship and Immigration Services (CIS)] in its discretion may 
deny the application or petition for lack of initial evidence or for ineligibility or request that 
the missing initial evidence be submitted within a specified period of time as determined by 
[CIS]. 
Id.; see also 72 F.R. 19100 (April 17, 2007). As the instant petition was filed on October 15, 2007, the 
director was not obligated to request additional evidence if the petition fails to demonstrate eligibility for the 
benefit sought. As further explained below, since the petition failed to establish either (1) that the petitioner 
and the foreign employer are qualifying organizations, or (2) that the beneficiary has been or will be 
employed in a primarily managerial or executive capacity, the director's denial of the petition in her discretion 
without first requesting additional evidence was appropriate. Even if the AAO were to find that the director 
should have requested evidence before denying the petition, the director's error would be harmless. Because 
the director did not request evidence prior to her decision, the petitioners had the opportunity to submit 
additional evidence to the AAO on appeal. C' Matter of Soriano, 19 I&N Dec. 764 (BIA 1988). The 
petitioner did not avail itself of this opportunity. 
In view of the above, the regulations 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 
(Comm. 1988); see also Matter of Siemens Medical Systems, Inc., 19 I&N Dec. 362 (Comm. 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 
WAC 08 012 50706 
Page 5 
means the direct or indirect legal right and authority to direct the establishment, management, and operations 
of an entity. Matter of Church Scientologv International, 19 I&N Dec. at 595. 
In this matter, the petitioner and the foreign employer do not share common ownership and control and, 
therefore, are not "qualifying organizations." First, while the beneficiary appears to own a 100% interest in 
the petitioner, he only appears to own a 33.3% interest in the foreign employer. Accordingly, the beneficiary 
appears to control the petitioner but does not exercise similar control, de jure or de facto, over the foreign 
employer. Although counsel argues on appeal that the size of the beneficiary's interest in comparison to the 
other shareholders' interests establishes that he has "effective de jure or de facto control" over the Canadian 
corporation, the record is devoid of evidence supporting this claim. It is emphasized that the burden of proving 
eligibility for the benefit sought remains entirely with the petitioner. Section 291 of the Act, 8 U.S.C. 4 1361. 
contra& to counsel's claims, the record indicates that the beneficiary and each o&33.3% 
interests in the Canadian corporation and that the beneficiary's children each own 16.7% interests. The record 
does not establish that the beneficiary's exercises de facto or de jure control because of the size of his minority 
interest. Furthermore, counsel's argument on appeal that the beneficiary exercises control over the foreign 
employer because of his possession of a contractor's license and involvement in the business is not persuasive. 
While the beneficiary's personal involvement, reputation, good credit, and leadership may be valuable to the 
Canadian corporation's business, the petitioner has not established that this involvement constitutes "the direct or 
indirect legal right and authority to direct the establishment, management, and operations of an entity." Once 
again, the burden of proof remains entirely with the petitioner. Id. It is also noted that, contrary to counsel's 
claim on appeal, the record indicates that the beneficiary is no longer an officer or a director of the Canadian 
corporation. The officers and directors are the three other shareholders.' 
Second, counsel argues that the organizations are qualifying because the beneficiary and his children 
collectively own and control both entities. However, this familial relationship does not constitute a qualifying 
relationship under the regulations. As counsel is claiming that the beneficiary essentially controls the foreign 
employer through his children, it must be established that the beneficiary has gained de facto control. In order 
to establish de facto control, the petitioner must provide agreements relating to the control of a majority of the 
shares' voting rights through proxy agreements. Matter of Hughes, 18 I&N Dec. at 293. A proxy agreement 
is a legal contract that allows one individual to act as a substitute and vote the shares of another shareholder. 
See Black's Law Dictionary 1241 (7th Ed. 1999). As the record in this matter is devoid of evidence 
establishing that the minority shareholder "controls" the foreign employer, it has not been established that the 
Canadian corporation has a qualifying relationship with the petitioner. 
'while both counsel and the petitioner indicate that the beneficiary is also the owner of 10,000 "Class C" 
shares of stock in the Canadian corporation, the record is devoid of evidence, such as a shareholders' 
agreement, which addresses the significance of these shares or their impact, if any, on the beneficiary's 
purported control over the corporation. It appears from the few documents in the record which address these 
10,000 "Class C" shares, e.g., the Sale of Shares Agreement, that the issuance of these shares was not 
intended to affect the control of the corporation by the "Class A" shareholders. Instead, the issuance of these 
shares appears to relate to the "Carl Ross dividend," the relevance of which was not addressed by the 
petitioner. Going on record without supporting documentary evidence is not sufficient for purposes of 
meeting the burden of proof in these proceedings. Matter of Sofici, 22 I&N Dec. 158, 165 (Comm. 1998) 
(citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm. 1972)). 
WAC 08 012 50706 
Page 6 
It is further noted that the affidavits submitted on appeal in which the beneficiary's children express that they 
will vote their shares in accordance with their father's wishes are not persuasive in establishing that 
beneficiary exercises control over the Canadian corporation. These gratuitous statements do not credibly 
establish that these shareholders have legally transferred or otherwise ceded their voting rights to the 
beneficiary. Once again, the burden of proof in these proceedings remains entirely with the petitioner. 
Section 291 of the Act. Finally, as these affidavits were prepared after the filing of the instant petition, they 
have no evidentiary value even if they were established to be a proper transfer of voting rights. 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). 
Accordingly, as the petitioner has failed to establish that it and the foreign employer maintain a qualifying 
relationship, the petition may not be approved. 
11. 
 Managerial or Executive Employment in the United States 
The second issue in the present matter is whether the beneficiary will 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. 5 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; 
(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. 4 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; 
WAC 08 012 50706 
Page 7 
(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 from higher level executives, the board 
of directors, or stockholders of the organization. 
The petitioner does not clarify in the initial petition whether the beneficiary will primarily perform managerial 
duties under section 101(a)(44)(A) of the Act, or primarily executive duties under section 101(a)(44)(B) of 
the Act, and counsel claims in the undated letter appended to the petition that the beneficiary will "serve in a 
managerial/executive capacity." A petitioner may not claim that a beneficiary will be employed as a hybrid 
"manager/executive" and rely on partial sections of the two statutory definitions. If the petitioner is indeed 
representing the beneficiary as both an executive and a manager, it must establish that the beneficiary meets 
each of the four criteria set forth in the statutory definition for executive and the statutory definition for 
manager. 
Counsel describes the beneficiary's proposed duties in the United States as "president" as follows: 
[The beneficiary], alone will establish goals and policies of the company. 
 Only [the 
beneficiary] will have decision making authority over business contracts, employee hiring, 
subcontractor and vendor relationship, marketing strategy, as well as financial debt and asset 
allocation. [The petitioner] has no higher executives to supervise [the beneficiary] since [the 
beneficiary], himself, in the President and CEO. 
[The beneficiary's] specific job duties are essentially, but not limited to, as follows: 
1. 
 Plans, develops, and establishes policies and objectives of business organization[.] 
2. 
 [Dlevelops organizational policies to coordinate functions and operations between 
divisions and departments, and to establish responsibilities and procedures for 
attaining objectives. 
3. 
 Reviews activity reports and financial statements to determine progress and status in 
attaining objectives and revises objectives and plans in accordance with current 
conditions. 
4. 
 Directs and coordinates formulation of financial programs to provide funding for new 
or continuing operations to maximize returns on investments, and to increase 
productivity. 
5. 
 Plans and develops industrial, labor, and public reIations policies designed to 
improve company's image and relations with customers and employees, and public. 
6. 
 Evaluates performance of employees for compliance with established policies and 
objectives of domestic company and contributions in attaining objectives. 
The petitioner claims to employ three workers, including the beneficiary. It appears from the wage reports 
and employment materials that the petitioner employs an office clerk and a truck driver. These two positions 
are described in the record as being responsible for performing the tasks necessary to the provision of the 
WAC 08 012 50706 
Page 8 
petitioner's services, e.g., answering the telephone, processing accounts payable and receivable, clerical tasks, 
and driving a truck. 
On October 24, 2007, the director denied the petition. The director concluded that the petitioner failed to 
establish that the beneficiary will be employed primarily in a managerial or executive capacity. 
On appeal, counsel asserts that the record sufficiently establishes that the beneficiary will perform qualifying 
duties in the United States. 
Upon review, counsel's assertions are not persuasive. 
As a threshold matter, it must be noted that the petitioner's plans to expand its business or to hire additional 
staff members may not be used to establish that the beneficiary will be employed in a managerial or executive 
duty 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 based on speculation of future eligibility or 
after the petitioner or beneficiary becomes eligible under a new set of facts. See Matter of Michelin Tire 
Corp., 17 I&N Dec. 248; Matter of Katigbak, 14 I&N Dec. 45, 49 (Comm. 1971). Accordingly, the 
petitioner's employment, or planned employment, of additional staff members is not relevant to the AAO's 
consideration of the instant petition. Based on the payroll records pertaining to the time period in which the 
instant petition was filed, it appears that the petitioner employed three workers including the beneficiary. 
Therefore, as further explained below, the petitioner's business has not reached the point that it can employ 
the beneficiary in a predominantly managerial or executive position. 
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 
either in an executive or managerial capacity. Id. 
It must be noted, contrary to counsel's assertions, the record is devoid of any evidence addressing the duties of 
the beneficiary in the United States. While counsel described the beneficiary's duties in the United States in 
his letter of support appended to the Form 1-129, such uncorroborated attorney letters or briefs do not 
constitute evidence. 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). Accordingly, as the record is devoid of 
evidence establishing that the beneficiary will be employed in a managerial or executive capacity, the petition 
may not be approved. 
Regardless, counsel's description of the beneficiary's job duties fails to establish that the beneficiary will act 
in a "managerial" or "executive" capacity. In support of the petition, counsel has submitted a vague and non- 
specific job description which fails to sufficiently describe what the beneficiary will do on a day-to-day basis. 
For example, counsel states that the beneficiary will establish goals, policies, and objectives, establish 
responsibilities and procedures for attaining objectives, and direct the formulation of financial programs. 
However, the petitioner does not specifically define any of these goals, policies, objectives, responsibilities, 
WAC 08 012 50706 
Page 9 
procedures, or financial programs. Furthermore, vague managerial-sounding duties such as having "decision 
making authority" and an inflated job title are not probative of the beneficiary actually performing qualifying 
duties. Specifics are clearly an important indication of whether a beneficiary's duties will be 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. 1 103 (E.D.N.Y. 1989), aff'd, 905 F.2d 41 (2d. 
Cir. 1990). Once again, 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. 
Consequently, the petitioner has not established that the beneficiary will primarily perform managerial or 
executive duties as its "president" and principal owner. To the contrary, it appears more likely than not that 
the beneficiary will primarily perform non-qualifying administrative or operational tasks inherent to the 
operation of a three-employee construction business. In addition to being vague, the job duties ascribed to 
beneficiary appear to concern primarily non-qualifying tasks and not managerial or executive duties. For 
example, the petitioner claims that the beneficiary will be responsible for "subcontractor and vendor 
relationship[s]" and the petitioner's "marketing strategy." The petitioner also claims that the beneficiary will 
"develop industrial, labor, and public relations policies designed to improve company's image and relations 
with customers and employees, and public" and will review "activity reports and financial statements to 
determine progress and status in attaining objectives." However, the job descriptions for the two subordinate 
workers do not indicate that either of these employees will relieve the beneficiary of the need to perform the 
non-qualifying tasks inherent to marketing, maintaining relationships with clients and subcontractors, and 
creating activity reports and financial statements. Given the lack of workers dedicated to performing such 
inherent non-qualifying tasks, it is more likely than not that the beneficiary will perform such tasks. 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 10 l(a)(44)(A) and 
(B) of the Act (requiring that one "primarily" perform the enumerated managerial or executive duties); see 
also Matter of Churclz Scientology International, 19 I&N Dec. at 604. 
The petitioner has also failed to establish that the beneficiary will supervise and control the work of other 
supervisory, managerial, or professional employees, or will manage an essential function of the organization. 
As noted above, it appears that the beneficiary will supervise an officer clerk and a truck driver. As neither of 
these workers appears to be a supervisory, managerial, or professional worker, it appears that the beneficiary 
will be, at most, a first-line supervisor. A managerial or executive employee must have authority over day-to- 
day operations beyond the level normally vested in a first-line supervisor. See 101(a)(44) of the Act; see also 
Matter of Church Scientology International, 19 I&N Dec. at 604. Therefore, the petitioner has not 
established that the beneficiary will be employed primarily in a managerial capacity.2 
2 
While the petitioner has not argued that the beneficiary will manage an essential function of the organization, 
the record nevertheless would not support this position even if taken. 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 
101(a)(44)(A)(ii) of the Act. 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 written 
job offer that clearly describes the duties to be performed in managing the essential function, i.e., identify the 
WAC 08 012 50706 
Page 10 
Similarly, the petitioner has failed to establish that the beneficiary will act in an "executive" capacity. The 
statutory definition of the term "executive capacity" focuses on a person's elevated position within a complex 
organizational hierarchy, including major components or functions of the organization, and that person's 
authority to direct the organization. Section 101(a)(44)(B) of the Act. Under the statute, a beneficiary must 
have the ability to "direct the management" and "establish the goals and policies" of that organization. 
Inherent to the definition, the organization must have a subordinate level of employees for the beneficiary to 
direct, and the beneficiary must primarily focus on the broad goals and policies of the organization rather than 
the day-to-day operations of the enterprise. An individual will not be deemed an executive under the statute 
simply because they have an executive title or because they "direct" the enterprise as the owner or sole 
managerial employee. The beneficiary must also exercise "wide latitude in discretionary decision making" 
and receive only "general supervision or direction from higher level executives, the board of directors, or 
stockholders of the organization." Id. For the same reasons indicated above, the petitioner has failed to 
establish that the beneficiary will act primarily in an executive capacity. The job description provided for the 
beneficiary is so vague that the AAO cannot deduce what the beneficiary will do on a day-to-day basis. 
Moreover, as explained above, it appears that the beneficiary will be primarily employed as a first-line 
supervisor and will perform the tasks necessary to produce a product or to provide a service. Therefore, the 
petitioner has not established that the beneficiary will be employed primarily in an executive capacity. 
In reviewing the relevance of the number of employees a petitioner has, federal courts have generally agreed 
that CIS "may properly consider an organization's small size as one factor in assessing whether its operations 
are substantial enough to support a manager." Family, Inc. v. US. Citizenship and Immigration Services, 469 
F.3d 13 13 (9th Cir. 2006) (citing with approval Republic of Transkei v. INS, 923 F.2d 175, 178 (D.C. Cir. 
199 1); Fedin Bros. Co. v. Sava, 905 F.2d 41, 42 (2d Cir. 1990) (per curiam); Q Data Consulting, Inc. v. INS, 
293 F. Supp. 2d 25, 29 (D.D.C. 2003)). Furthermore, 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 7, 15 (D.D.C. 2001). 
Accordingly, the petitioner has failed to establish that the beneficiary will primarily perform managerial or 
executive duties in the United States, and the petition may not be approved for that reason. 
function with specificity, articulate 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. 3 214.2(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. In this matter, the petitioner has 
not provided evidence that the beneficiary will manage an essential function. The petitioner's vague job 
description fails to document that the beneficiary's duties will be primarily managerial. Also, as explained 
above, the record establishes that the beneficiary will primarily be a first-line supervisor of non-professional 
employees and/or will perform non-qualifying operational or administrative tasks. Absent a clear and 
credible breakdown of the time spent by the beneficiary performing his duties, the AAO cannot determine 
what proportion of his duties will be managerial, nor can it deduce whether the beneficiary will primarily 
perform the duties of a function manager. See IKEA US, Inc. v. US. Dept. of Justice, 48 F. Supp. 2d 22, 24 
(D.D.C. 1999). 
WAC 08 012 50706 
Page 11 
111. Employment Abroad 
The third issue in the present matter is whether the beneficiary was employed abroad in a primarily 
managerial or executive capacity. 
The petitioner claims in a letter dated September 20, 2007, and in the Form 1-129, that the beneficiary was 
employed as "owner and president" of the foreign employer, a Canadian corporation, from 1983 until 2006. 
The petitioner also submits payroll evidence indicating that the petitioner employed 13 people in 2007. 
However, the record is devoid of evidence addressing the specific duties of these workers. Also, the payroll 
documents fail to indicate whether any of the 2007 workers were employed abroad at the time the beneficiary 
last served as "president" in 2006. Moreover, the petitioner described the beneficiary's duties in the Form I- 
129 as follows: 
[The beneficiary] retained ultimate decision and goal making authority for both the foreign 
corporation and for [the petitioner]. [The beneficiary] delegated to subordinates clerical and 
acounting [sic] duties, while [the petitioner] focused on building business partnerships, 
entering and signing contracts with subcontractors, customers and vendors. While an 
employee would type out checks for business expenses, only applicant was authorized to sign 
said checks. 
Finally, the petitioner submitted a variety of business documents indicating that the beneficiary previously 
operated the business of the foreign employer in Canada as its principal owner and president. 
On October 24, 2007, the director denied the petition. The director concluded that the petitioner failed to 
establish that the beneficiary was employed abroad primarily in a managerial or executive capacity. 
On appeal, counsel asserts that the record sufficiently establishes that the beneficiary performed qualifying 
duties abroad as "owner and president." 
Upon review, counsel's assertions are not persuasive. 
Again, when examining the executive or managerial capacity of the beneficiary abroad, the AAO will look 
first to the petitioner's description of the job duties. See 8 C.F.R. 9 214.2(1)(3). In this matter, the petitioner 
failed to specifically describe the beneficiary's job duties abroad. Specifics are clearly an important indication 
of whether a beneficiary's duties were 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, ard, 905 F.2d 41. An individual will not be deemed a manager or executive under the statute 
simply because he had an executive title or because he "directed" the enterprise as the owner or sole 
managerial employee. As it must be established that the beneficiary primarily performed managerial or 
executive duties, it must also be shown that the beneficiary was relieved of the need to perform the non- 
qualifying tasks necessary to the provision of service by a subordinate staff. This has not been established in 
this matter. 
Furthermore, the petitioner failed to describe the duties of the beneficiary's purported subordinates abroad or 
WAC 08 012 50706 
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to establish how many workers identified in the payroll documents were employed at the time the beneficiary 
served as "president," if any. Absent detailed descriptions of the duties of both the beneficiary and his 
purported subordinates, it is impossible for CIS to discern whether the beneficiary was "primarily" engaged in 
performing managerial or executive duties abroad. See sections 101(a)(44)(A) and (B) of the Act; see also 
Matter of Church Scientology International, 19 I&N Dec. at 604. Once again, 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. 
Accordingly, the petitioner has failed to establish that the beneficiary was employed abroad in a primarily 
managerial or executive capacity, and the petition may not be approved for this additional reason. 
Beyond the decision of the director, the petitioner has not established that the beneficiary's services will be 
used for a temporary period and that the beneficiary will be transferred to an assignment abroad upon 
completion of the temporary assignment in the United States. 8 C.F.R. 3 214.2(1)(3)(vii). 
In this matter, the petitioner claims to be 100% owned and controlled by the beneficiary. As a purported 
owner of the petitioner, the petitioner is obligated to establish that the beneficiary's services will be used for a 
temporary period and that he will be transferred to an assignment abroad upon completion of the assignment. 
Id. However, the record is devoid of any evidence establishing that the beneficiary's services will be used 
temporarily. Once 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. at 165 (citing 
Matter of Treasure Craft of California, 14 I&N Dec. 190). 
Accordingly, as the petitioner has not established that the beneficiary's services will be used for a temporary 
period and that the beneficiary will be transferred to an assignment abroad upon completion of the temporary 
assignment in the United States, the petition may not be approved for this additional reason. 
An application or petition that fails to comply with the technical requirements of the law may be denied by 
the AAO even if the Service Center does not identify all of the grounds for denial in the initial decision. See 
Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 2001), afyd, 345 F.3d 683 
(9th Cir. 2003); see also Dor v. INS, 891 F.2d 997, 1002 n. 9 (2d Cir. 1989) (noting that the AAO reviews 
appeals on a de novo basis). 
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 it is shown that the AAO abused its discretion with respect to all of the AAO's 
enumerated grounds. See Spencer Enterprises, Inc., 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. Here, that burden has not been met. Accordingly, the appeal will be 
dismissed. 
ORDER: The appeal is dismissed.