dismissed L-1A Case: Construction And Renovation

U.S. ~cpartment of Homeland Security 
20 Mass. Ave, N.W., Rm. A3042 
Wash~ngton, DC 20529 
U.S. Citizenship 
and Immigration 
Services 
File: EAC 03 159 52083 Office: VERMONT SERVICE CENTER Date: MAY 1 1 m)5 
Petition: ' Petition for a Nonimmigrant Worker Pursuant to Section 10 1 (a)(15)(L) of the Immigration 
and Nationality Act, 8 U.S.C. 1 10 1 (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 ofice. 
Administrative Appeals Office 
EAC 03 159 52083 
Page 2 
DISCUSSION: The Director, Vermont 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 seeks to employ the beneficiary temporarily in the United States as an L-1A nonimmigrant 
intracompany transferee pursuant to sectlon 101(a)(15)(L) of the Immigration and Nationality Act (the Act), 8 
U.S.C. $1 101(a)(15)(L). The U.S. petitioner, a corporation organized in the State of New Jersey, 1s engaged 
m construction and renovation. It seeks to employ the benefic~ary as its chief operating officer. The 
petitioner claims that it is a subsidiary of located in Istanbul, Turkey. 
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 immediately or at the end of 
the first year of operations. In addition, the director found that the beneficiary had not been employed abroad 
in a capacity that was prima~jly managerial or executive. 
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, the petitioner asserts that the beneficiary has in fact 
been employed in a qualifying capacity, and requests reconsideration on this matter. 
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 (I)(l)(ii)(G) of this section. 
(ii) Evidence that the alien will be employed in an executive, managerial, or specialized 
howledge 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 speciahzed knowledge and that the alien's prior 
education, training, and employment qualifies himher to perform the intended 
EAC 03 159 52083 
Page 3 
servlces m the United States; however, the work in the United States need not be the 
same work which the allen performed abroad. 
J 
The regulation at 8 C.F.R. 214.2(1)(3)(~) further provides that if the petihon indicates that the beneficiary is 
coming to the Un~ted States as a manager or execuhve to open or to be employed in a new office in the United 
States, the pehhoner shall submit evidence that: 
(A) Sufficient physical premises to house the new office have been secured; 
, , 
. , 
(B) The beneficiary has be& employed for one continuous year in the three year period 
preceding the filing of the petition in an executive or managerial capacity and that the 
.' proposed employment involved executive or managerial authority over the new' , . 
operation; and 
(C) The intended United States eration, within one year of the approval of the 
petition, will support an executive or managerial position as defined in paragraphs 
(l)(l)(ii)(B) or (C) of thls section, supported by information regarding: 
(I) The proposed nature of the office describing the scope of the entity, its 
organizational structure, and its financial goals; 
(2) The size of the United States investment and the financial ability of the 
foreign entity to remunerate the beneficiary and to commence doing business in 
the United States; and 
(3) The organizational structure of the foreign entity. 
The first issue in this matter is whether the beneficiary was employed abroad in a primarily managerial or 
executive capacity. 
The regulatjon at 8 C.F.R. fj 214.2(1)(3)(iv) states that an individual petition filed on Form 1-129 shall be 
accompanied ..by 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 hhdher,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. 
In a letterdated April 24,2003, counsel for the petitioner stated that the beneficiary had been a director of the 
foreign entity since its inception. The foreign entity's business was described as a third party transportation 
contracting service providing buses and other vehicles for tours and tourists within Turkey. It also claimed to 
be engaged in the sale of goods, as well as home restoration and renovation. With regard to the beneficiary's 
duties, counsel stated: 
EAC 03 159 52083 
Page 4 
The beneficiary's managerial tasks for the Turkish company . . . included the hiring and firing . 
of all personnel, supervision of lower level employees, asset purchase decisions, traveling 
abroad for business conventions, contracting with companies and negotiating services 
agreements, conducting the financial affairs of the company, execution of business decisions 
for the business operations, negotiating with private and government organizations, and 
exercising direction over the day-to-day operations of the company. 
No additional documentary evidence to corroborate these stated duties was provided. 
Consequently, the director requested additional evidence establishing that the beneficiary was qualified for 
the benefit sought on June 23, 2003. Specifically, the director requested a "plain English" descnption of the 
foreign ent~ty's business, the number of employees it currently retained with their job titles, and the 2002 
tncome of the company. 
In a response dated August 1, 2003, the petitioner, through counsel, submitted a detailed letter accompanied 
by the documentation requested by the director. Counsel's response included a letter from the petitioner dated 
July 17, 2003, which stated that the foreign entity employed six persons. Specifically, the petitioner indicated 
that these employees consisted of two chauffeurs/drivers, two handymen, one manager and one bookkeeper. 
The petitioner'also restated its business structure, and emphasized that the home restoration and renovation 
area was to be expanded by the beneficiary to the United States, and stated that its annual income for 2002 
was $1 10,000. 
On November 15, 2003 the director denied the petition. The director determined that the evidence in the 
record did not establish that .the beneficiary had been employed in a primarily managerial or executive . 
capacity while abroad, given the nature and size of the foreign entity. 
On appeal, counsel for the petitioner asserts that the evidence provided in response to the request for evidence 
clearly established that the beneficiary had been employed abroad as a manager. Counsel refers to the 
petihonefi letter of August 1, 2003, and states that "the list of employees indicates that his position was a 
manager.! In addition, counsel asserts that "the beneficiary's duties were solely to manage the cbmpany, 
make policy-making decisions, being in charge of hiring and firing employees, and negotiating contracts on 
behalf of the company." Finally, counsel states that "there is no evidence to contradict and/or doubt this." 
The AAO disagrees. The record contains no independent evidence, other than the statements of counsel and 
the petitioner, which support a finding that the beneficiary was employed primarily as a manager while 
abroad. Counsel's arguments on appeal essentially quote the regulatory definition of managerial capacity, and 
claim that by v~rtue of his managerial title, the beneficiary is qualified for the benefit sought. Conclusory 
assertions regarding the beneficiav's employment capacity, however, are not sufficient. Merely repeating 
the' language of the statute or regulations does not satisfy the petitioner's burden of proof. Fedin Bros. Co.. 
Ltd. v. Suva, 724 F. Supp. 1 103, 1 108 (E.D.N.Y. 1989), afd, 905 F. 2d 4 1 (2d. Cir. 1990); Ayr Associates, 
Inc. v. ~eissner, 1997 WL 188942 at *S (S.D.N.Y.). 
EAC 03 159 52083 
Page 5 
Furthermore, there 1s no Independent evidence to support the claims made by counsel and the petitioner. 
Going on record wlthout supporting documentary evidence is not sufficient for purposes of meeting the 
burden of proof ~n these proceedings. Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm. 
1972). Furthermore, without documentary evidence to support the claim, the assertions of counsel will not 
satisfy the petitloner's burden of proof. The assertions of counsel do not constitute evidence. Matter of 
Ohaigbena, 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). 
Even though the petitioner claims that the beneficiary directs and manages the company, ~t does not claim to 
have anyone on its staff to actually perform the sales and marketing of the company's business. The petitioner 
claims to have two drivers, two handymen, and a bookkeeper who also serves as a tour guide. If the 
beneficiary is exclusively performing managerial tasks, who manages the tour bookings? Who answers the 
phones and provides customer service to tourists? Assuming that the drivers and the bookkeeper, when acting 
as a tour gulde, are absent fiom the office, how does the business operate in terms of sales, marketing, and 
customer service? In addition, there was no discussion of who handles the sale and resale of goods, or who 
handles the home restoration and renovation functions of the business. 
Thus, it appears that the beneficiary himself is performing the necessary customer service and sales functions 
in the absence of evldence that a dedicated employee has been appointed to handle such tasks. The AAO, 
therefore, is left to question the validity of the petitioner's claim and the remainder of the beneficiary's 
claimed duties. 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 (BX.4 1988). If the beneficiary 1s performing these functions, the AAO notes that an 
employee who primarily perfoms the tasks necessary to produce a product or to provlde services is not 
considered to be employed m a managerial or executive capacity. Matter of Church Scientology 
International, 19 I&N Dec. 593,604 (Comm. 1988). 
For these reasons, the petitioner has failed to demonstrate that the beneficiary, was employed in a capacity that 
was primarily managerial while abroad. Consequently, the petition may not be approved. 
The second issue in this matter is whether the beneficiary will be employed by the United States entity in a 
primarily managerial or executive capacity. 
Sectlon 101(a)(44)(A) of the Act, 8 U.S.C. 3 1101(a)(44)(A), defines the term "managerial capacity" as an 
assignment within an organization in which the employee primarily: 
(1) manages the organization, or a department, subdivision, functron, 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; 
EAC 03 159 52083 
Page 6 
(ili) 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 vlrtue 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 1101(a)(44)(B), defines the term "executive capacity" as an 
assignment within an organization in which the employee primarily: 
(I) directs the management of the organization or a major component or function of the 
organization; 
(ii) establishes the goals and policies of the organization, component, or function; 
(iii) exercises wide latitude in discretionary decision making; and 
(iv) receives only general supervision or direction fkom higher level executives, the board 
of directors, or stockholders of the organization. 
In the initial petition, counsel for the petitioner stated in his April 25,2003 letter: 
The beneficiary is the founder of the business in the United States and continues to be in 
complete charge of all policy and decision-making. The beneficiary shall serve in a 
managerial position. 
The beneficiary's business plans are to contract with independent and general contractors to 
' 
secure contracts, as well as marketing its services directly to the public. In addition, the 
beneficiary will seek job orders as a subcontractor at various projects, as he has already done, 
as well as expanding the corporation's activities. 
In addition, counsel subm~tted a letter from the petitioner dated Apr1122,2003 which restated these dutles and 
also provided: 
As the business develops, he hopes to concentrate his time more in local construction job 
orders, project management and services development. At this time, the beneficiary IS the 
sole employee. 
EAC 03 159 52083 
Page 7 
The petitioner concluded by emphasizing that the U.S. business would eventually expand and hire new 
employees as a result of the beneficiary's time and effort. 
The director found these statements to be insufficient to establish that the beneficiary would be primarily 
employed in a managerial or executive capacity, and requested additional evidence on August 6, 2003. 
Specifically, the director requested the estimated number of employees the petitioner intended to employ in a 
year, including. their job titles. Also noted was the fact that the U.S. business appeared to be a small home 
repair business, and thus it appeared that the beneficiary would be performing non-qualifying tasks if he was 
the only ernplojek. 
h a response dated August 1, 2003, the petitioner, through counsel, submitted a detailed letter addressing 
these issues. Specifically, the petitioner stated in its letter of July 19, 2003 that the petitioner had already 
secured job orders on a number of projects, and that it would eventually hire tradesmen to perform the work 
when the jobs became current. The petitioner indicated that at the end of the first year, it hoped to employ 
seven employees; namely, the beneficiary, a secretaryhookkeeper, and five tradesmen. 
On November 15, 2003 the director denied the petition. The director determined that the evidence in the 
record did not establish that the beneficiary would be employed in a primarily managerial or executive 
capacity while in the United States, nor did the evidence sufficiently establish that the U.S. petitloner would 
be able to support a managerial or executive position at the end of the first year of operations. 
When examining the executive or managerial capacity of the beneficiary, the AAO will look first to the 
petitioner's description of the job duties. See 8 C.F.R. $214.2(1)(3)(ii). In this case, counsel and the petitioner 
failed to provide a detailed description of the beneficiary's proposed duties. The brief description included in 
the initial letters indicates that his primary duty will be to enter into contracts. This description, however, is 
insufficient to identify with specificity what the beneficiary would actually be doing on a daily basis during 
the first year of the U.S. entity's operations. 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.Br0.s. Co., Ltd..v. Sava, 724 F. Supp. 1103 (E.D.N.Y. 
1989), afd, 905 F.2d 41 (2d. Cir. 1990). 
Furthermore, counsel and the petitioner assert in the response to the request for evidence that the beneficiary 
founded the U.S. company and thus will be its manager. This statement, without more, is insufficient to 
qualify the beneficiary for the benefit sought. The only evidence submitted with regard to the beneficiary's 
proposed duties are the statements of counsel and the petitioner provided in the above-referenced letters, 
which claim that the beneficiary will in fact be a managerial employee. Conclusory assertions regarding the 
beneficiary's employment capacity are not sufficient. Merely repeating the language of the statute or 
regulations does not satisfjr the petitioner's burden of proof Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. at 
1 108; Avyr Associates, Inc. v. Meissner, 1997 WL 188942 at *5 (S.D.N.Y.). Finally, the assert~ons of counsel 
do not constitute evidence. Matter ofobaigbena, 19 I&N Dec. 533,534 (BIA 1988); Matter ofLaureano, 19 
I&N Dec. 1 (BIA 1983); Matter of Ramirez-Sanchez, 17 I&N Dec. 503, 506 (BLA 1980). Wlthout 
documentary evidence to support the claim, the assertions of counsel will not satisfy the petitioner's burden of 
proof. 
EAC 03 159 52083 
Page 8' 
When a new business is established and commences operations, the regulations recognize that a designated 
manager or ,executive responsible for setting up operations wili be engaged in a variety of activities not 
normally performed by employees at the executive or managerial level and that often the full range of 
managerial responsibility cannot be performed. In order to qualify for L-1 nonimmigrant classification during 
the first year of operations, the regulations require the petitioner to disclose the business plans and the size of 
the United States investment, and thereby establish that the proposed enterprise will support an executive or 
m$nhgerial position within one year'of the approval of the petition. See 8 C.F.R. 214.2(1)(3)(v)(C). This 
evidence should demonstrate a realistic expectation that the enterprise will succeed and rapidly expand as it 
moves away from the developmental stage to full operations, where there would be an actual need for a 
manager or executive who will primarily perform qualifying duties. 
~lthou~h the petitioner claims that the beneficiary will direct and manage the company, it does not claim to 
have anyone on its staff to actually perform contracting and renovation services for which the beneficiary is 
co&acting. The petitioner claims it will eventually hire tradesmen. ,Until then, it seems that the benef ciary 
himself will perform some of the necessary labor in order to fulfill these proposals. If the beneficiary refrains 
from working,on these jobs until tradesmen are hired and merely enters into contract after contract, it is 
unclear how the business will continue to operate without an influx of income. Furthermore, once tradesmen 
are actually hired and begin working for the petitioner, the beneficiary will merely be a first-line supervisor 
overseeing a. staff of non-professional employees. A managerial or executive employee must have authority 
over day-to-day ope'ratiohs beyond the level normally vested in a first-line supervisor, unless the supervised 
employees are professionals. See Matter ofchurch Scientology International, 19 I&N Dec. 593,604 (Comm. 
1988). ~urthermbre, if the beneficiary performs any of the .functions provided'for in the service contracts, he 
is merely an employee who primarily performs the tasks necessary to produce a product or to provide services 
and is thus not considered to be employed in a managerial or executive capacity. Matter of Church 
Scientology International, 19 I&N Dec. 593,604 (Comm. 1988). 
Finally, the petitioner, failed to provide sufficient' evidence outlining its business plan and organizational 
hierarchy as required by 8'C.F.R. 5 2 14.2(1)(3)(v)(i). Although a lease agreement was submitted along with 
photographs of the alleged .business location, the identified premises appears to merely be a residential 
dwelling. In fact, the personal documentation submitted on behalf of the beneficiary indicates that this same 
address is the beneficiary's home address. It is incumbent upon the petitioner to resolve any inconsistencies in 
the record by independent objective evidence. Any attempt to explain or redoncile such-inconsistencies will 
not suffice unless the petitioner submitscompetent objective evidence pointing to where the truth lies. Matter 
ofHo, 19 I&N Dec. 582,591-92 (BIA 1988). ~onse~uentl~, it appears that the petitioner is merely operating 
a home-based business from the petitioner's residence. This evidence is insufficient to credibly suggest that 
the petitioner intends to operate a legitimate and flourishing business as required by the regulations. 
On review, the record as presently constituted is not persuasive in demonstrating that the beneficiary will be 
employed in a priinarily managerial or executive capacity, nor does the record establish that the petitioner will 
be able to support a managerial or executive position after the first year of operations. For this reason, the . . 
petition may not be approved.' 
Beyond the decision of the director, the evidence is not persuasive that a qualifying relationship exists 
between the petitioner and a foreignentity as required by 8 C.F.R. 5 214.2(1)(l)(ii)(G). The petitioner claims 
EAC 03 159 52083' 
Page 9 
on form 1-129 that the foreign entity is the sole owner of the U.S. entity. However, the petitioner's 2002 Form 
1120, U.S. Corporation Tax Return, indicates on Schedule K that it is not a member of a parent-subsidiary 
group, nor IS it owned by a foreign person. On line 5, however, it indicates that one individual owns 100% of 
the company, and the attachment to the return indicates that person is- A stock purchase 
agreement between the foreign entity and dated April 13, 2003, is included to demonstrate 
that ~r.ould sell 50 percent of his shares to the foreign entity. This evidence is insufficient to 
establish that the foreign entity is the outright owner of the U.S. petitioner, particularly slnce Mr. is 
cla~med to be the sole shareholder of the petitioner. If this is the case, selling 50 percent of his shares in the 
U.S. entity to the foreign entity does not attribute ownership and control of the U.S. petitioner to the foreign 
entity, since, ~rould still retain a 50 percent interest. 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). 
As general evidence of a petitioner's claimed qualifying relationship, stock certificates alone are not sufficient ' 
evidence to determine whether a stockholder maintains ownership and control of a corporate entity. The 
corporate stock certificate ledger, stock certificate registry, corporate bylaws, and the minutes of relevant 
annual shareholder meetings must also be examined to determine the total number of shares.issued, the exact 
number issued 'to the shareholder, and the subsequent percentage ownership and its effect on corporate 
control. Additionally; a petitioning company must disclose all agreements relating to the voting of shares, the 
distribution of profit, the management and direction of the subsidiary, and any other factor affecting actual 
control of the entity. See Matter of Siemens Medical Systems, Inc. 19 I&N Dec. 362 (BIA 1986). Without 
full disclosure of all relevant documents, CIS is unable to determine the elements of ownership and control. 
As the appeal will be dismissed on the grounds discussed, these issues need not be addressed further. As 
previously stated, going on record without supporting documentary evidence is not sufficient for purposes of 
meeting the burden of proof in these' proceedings. Matter of Treasure Craji of California, 14 I&N Dec. at 
190. 
~&-thermore,the initial petition indicates that the beneficiary owns 80 percent of the foreign entity. The 
regulation ati8 C.F.R. $ 214.2(1)(3)(vii) states that if the beneficiary is an owner or major stockholder of the 
company, the petition must be accompanied by evidence that the beneficiary's services are to be used for a 
temporary'period and that the beneficiary will be transferred to an assignment abroad upon the completion of 
the temporary services in the United States. In this matter, the petitioner has not furnished evidence that the 
beneficiary's services are for i temporary peridd and that the beneficiary will be transferred abroad upon 
completion of the assignment. As the appeal will be dismissed on the grounds discussed, these issues need 
not bk examined further. 
As discussed briefly in the body of this decision, a final issue is whether the petitioner has established that it 
has secured sufficient physical premises to house the new office. The petitioner has submitted a copy of its 
lease. In this matter, the petitioner has not described its anticipated space requirements for its construction 
bus~ness and the lease in question does not specify the amount or type of space secured. In addition, it is 
confirmed that the leased premises pewits the operation of a "home office," and thus gives rise to the 
question 'of where the building materials and tools will be stored., Based on the insufficiency of the 
EAC 03 159 32083 
Page 10 
information furnished, it cannot be concluded that the petitioner has secured sufficient space to house the new 
office. For this additional reason, the petition may not be approved. 
An application or petltion that fails to comply w~th the technical requirements of the law may be denied by 
the AAO even if the Service Center does not Identify a11 of the grounds for denial in the lnitlal decision. See 
Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 2001), afd. 345 F.3d 683 
(9th Clr. 2003); see also Dor v. INS, 891 F.2d 997, 1002 n. 9 (2d Clr. 1989)(notmg that the AAO reviews 
appeals on a de novo basis). 
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.