dismissed L-1A Case: Dental Services

U.S. Department of Homeland Security 
20 Mass. Ave.. N.W., Rm. A3042 
Washington, DC 20529 
FILE: WAC 01 298 5 1555 Office: CALIFORNIA SERVICE CENTER Date: 0 1 l@ 
IN RE: Petitioner: 
Beneficiary: 
PETITION: Petition for a Nonimrnigrant Worker F'ursuant to Section lOl(a)(lS)(L) of the 
Immigration and ~ationalit~ Act, 8 U.S.C. 9 1 lOl(a)(lS)(L) 
ON BEHALF OF PETITIONER: 
SELF-REPRESENTED 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Office in your case. All documents have been 
returned to the office that originally decided your case. Any further inquiry must be made to that 
office. 
Robert P. Wiernann, Directdr 
drninistrative Appeals Office 
WAC 0 1 298 5 1555 
Page 2 
DISCUSSION: The nonimmigrant visa petition was denied by the Director, California Service 
Center, and is now before the Administrative Appeals Office (AAO) on appeal. The appeal will 
be dismissed. 
The petitioner, General Staff USA, Inc., endeavors to classify the beneficiary as a nonimmigrant 
manager or executive pursuant to section 101(a)(15)(L) of the Immigration and Nationality Act 
(the Act), 8 U.S.C. 5 I lOl(a)(15)(L). The petitioner is a wholly owned subsidiary of = 
, located in Japan. The petitioner is engaged in the dental services business. The initial 
petition was approved to allow the petitioner to open a new office. It seeks to extend the petition's 
validity and the beneficiary's stay for three years as the U.S. entity's general manager. The 
petitioner was incorporated in the State of California in June 2000 and claims to have six 
employees. 
On May 9, 2002, the director denied the petition because the petitioner had not established that 
the beneficiary will be employed in a primarily executive or managerial capacity. 
On appeal, the petitioner's counsel states that the beneficiary "undertakes numerous managerial 
and executive functions."' 
To establish L-1 eligibility under section 101(a)(15)(L) of the Act, the petitioner must meet 
certain criteria. Specifically, within three years preceding the beneficiary's application for 
admission into the United States, 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. Furthermore, 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. 
In relevant part, the regulations at 8 C.F.R. Q 214.2(1)(3) state 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 (1XlXiiXG) of this 
section. 
I The AAO notes that the petitioner's counsel, failed to submit a properly 
filed G-28. The AAO contacted counsel on 26,2004 at 4:44 p.m., 
a representative from the AAO informed counsel that he needed to submit a properly filed G-28. 
The representative contacted counsel again on November 2, 2004 and left a voice message. On 
November 10, 2004, the AAO spoke with counsel who stated that he was waiting for the 
petitioner to sign the Fonn G-28 and then he would fax a copy to the AAO. On November 18, 
2004, the representative spoke again with counsel who stated that he would fax a copy of the 
Form G-28 that day. The AAO never received the copy. Finally, on November 24,2004 at 11:21 
a.m., the representative left a message on counsel's voice mail to call the AAO concerning his 
Form G-28. 
WAC 01 298 51555 
Page 3 
(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. 
Further, the regulations at 8 C.F.R. 9 214.2(1)(14)(ii) require that a visa petition under section 
101(a)(15)(L) of the Act which involved the opening of a new office may be extended by filing a 
new Form 1-129, accompanied by the folIowing: 
(A) Evidence that the United States and foreign entities are stil qualifying 
organizations as defined in paragraph (l)(l)fii)(G) of this section; 
(B) Evidence that the United States entity has been doing business as defined in 
paragraph (l)(l)(ii)/N) of this section for the previous year; 
(C) A statement of the duties performed by the beneficiary for the previous year 
and the duties the beneficiary will perform under the extended petition; 
(D) A statement describing the staffing of the new operation, including the 
number of employees and types of positions held accompanied by evidence of wages 
paid to employees when the beneficiary will be employed in a managerial or 
executive capacity; and 
(E) Evidence of the financial status of the United States operation. 
The issue in this proceeding is whether the petitioner will employ the beneficiary in a primarily 
managerial or executive capacity. Section 101 (a)(44)(A) of the Act, 8 U. S.C. 5 1 f 0 1(a){44)(A), 
provides: 
The term "managerial capacity" means an assignment within an organization in which the 
employee primarily- 
I. manages the organization, or a department, subdivision, function, or 
component of the organization; 
. . 
11. supervises and controls the work of other supervisory, professional, or 
rnanagerial employees, or manages an essential function within the organization, or a 
department or subdivision of the organization; 
. . . 
111. 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-today operations of the activity or function 
for which the employee has authority. A first-line supervisor is not considered to be 
WAC 01 298 51555 
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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. $ I 101 (a)(44)(B), provides: 
The term "executive capacity" means an assignment within an organization in which the 
employee primarily- 
1. directs the management of the organization or a major component or function 
of the organization; 
.. 
11. 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. 
On September 28, 2001, the petitioner filed Form 1-129, The petitioner described the 
beneficiary's U.S. duties in an August 29,2001 supporting letter as: 
Function[s] at a senior executive level and direct [sic] an essential 
function within [the U.S. Company]. Exercises policy making 
authority for direction and coordination of strategic product 
planning. procurement, and sales activities. Monitor[sl progress of 
operational and administrative programs to achieve smooth flow of 
operation. Has the authority to hire and fire personnel. Evaluates 
performance of management for compliance with corporate policies 
and standards; 
Has authority of decision making in budgeting and settlement affairs, 
cost calculation, coordination and supemi sion of 
stocktaking/inventory control, fixed asset management, and review 
of financial statements; 
Directs research of market condition for introduction of [the U.S. 
company's] services. Conducts long-range and short-term strategic 
planning and development of marketing plans; 
Directs activities of workers in the General Staff USA dental 
laboratory to ensure the quality of General Staffs products; 
Directs protective and constructive audits to ensure compliance with 
established policies and procedures. Directs record management 
procedures for s ysternatic retention, protection, retrieval, transfer and 
disposaI of records. Reviews social management studies to improve 
WAC 01 298 51555 
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workflow, simplify reports procedures and implement cost reduction 
programs. Reviews staff recommendations and approves changes in 
management procedures, information network systems, budgetary 
limitations and organizational procedures; and 
Plans and develops public relations policies designed to improve our 
U.S. corporation's public image and relations with customers, 
employees, and the public. EstabIishes policies that provide 
government, industry and community groups with economic, 
Marketing and technical information. Promotes efforts to increase 
economic growth and employment stability in local communities. 
In addition, the petitioner submitted a U.S. organizational chart and stated that the beneficiary 
will continue to "exercise wide latitude and discretionary decision making in, establishing the 
most advantageous courses of action for the successful management and direction of our national 
and international activities." 
On December 12, 2001, the director requested additional evidence. In particular, the director 
requested a more detailed description of the beneficiary's U.S. duties, the percentage of time the 
beneficiary spends on each of the duties, a description of the U.S. entity's staffing, and a 
description of the employees' duties. The director also requested Form DE-6 Quarterly Wage 
Report and copies of the U.S. entity's payroll summary. 
In response, the petitioner, through counsel, submitted a second revised U.S. organizational chart 
and a description of the U.S. employees' duties. The petitioner, througb counsel, claimed that the 
business is in the "start-up phase and is still in the process of establishing its business in the 
United States; therefore, more local hiring is expected as business grows." In addition, the 
petitioner, through counseI, claimed that the beneficiary: 
Spends the majority of her time planning and developing policies and 
objectives for the U.S. entity. 
Devotes time necessary to direct the legal affairs. 
30 percent of her time is spent planning and supervising marketing where 
a sales and marketing account manager assists the beneficiary in 
promoting and marketing the products and services and the beneficiary 
works with various advertisement agencies to create ads, brochures, and 
websites. The beneficiary makes the final decision and authorizes all 
marketing pians and promotions. 
20 percent of her time supervising financial matters. 
The petitioner also submitted a copy of Form DE-6 Quarterly Wage Report and copies of the U.S. 
entity's payroll summary including copies of the Wage and Tax Statement Forms. 
WAC 0 1 298 5 1555 
Page 6 
On May 9, 2002, the director denied the petition because the petitioner had not established that 
the beneficiary wilt be employed in a primarily executive or managerial capacity. 
On appeal, the petitioner's counsel states that the beneficiary "undertakes numerous managerial 
and executive functions." Counsel reiterates the beneficiary's duties. Counsel also claims that the 
beneficiary "functions at a senior executive level and direct an essential function within [the U.S. 
company], she exercises policy making authority for direction and coordination of strategic 
product planning, procurement, and sales activities." In addition, counsel submits a third revised 
U.S. organizational chart. 
In examining the executive or managerial capacity of the beneficiary, the AAO will look to the 
description of the beneficiary's U.S. job duties to determine whether the beneficiary is primarily 
acting in a managerial or executive capacity. See 8 C.F.R. 8 214.2(1)(3Mii). On review, the 
petitioner has provided a vague and nonspecific description of the beneficiary's duties that fails to 
establish what the beneficiary does on a day-today basis. For example, the petitioner states that 
the beneficiary's duties include spending the majority of her time "planning and developing 
policies and objectives" for the U.S. entity and "exercis[ing] policy making authority for direction 
and coordination of strategic product planning, procurement, and sales activities." However, these 
duties are generalities that fail to explain how the beneficiary will plan and develop policies and 
objectives and what authority the beneficiary will exercise. Going on record without supporting 
documentary evidence is not sufficient for pusposes of meeting the burden of proof in these 
proceedings. Matter of Treasure CraJi of California, 14 I&N Dec. 190 (Reg. Cornrn. 1972). 
In addition, the petitioner generally paraphrased the statutory definition of executive capacity. See 
section 101(a)(44)(A) of the Act. For instance, the beneficiary's position is depicted as exercising 
"wide latitude and discretionary decision making" for the successful management and direction of 
activities. However, conclusory assertions regarding the beneficiary's employment capacity 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. Sava, 724 F. Supp. 1103, 1108 (E.D.N.Y. 
1989), affd, 905 F. 26 4 1 (26. Cir. 1990); Avyr Associates Inc. v. Meissner, 1937 WL 188942 at 
*5 (S.D.N.Y.). 
Further, counsel claims that the beneficiary's U.S. duties include spending "30 percent of her 
time . . . planning and supervising marketing where a sales and marketing account manager 
assists the beneficiary in promoting and marketing the products and services." The beneficiary 
also is described as "work[ing] with various advertisement agencies to create ads, brochure[s], 
and websites." Even though counsel claims that the beneficiary "authorizes all marketing plans 
and promotions," it appears that the beneficiary authorizes her own plans for marketing. The U.S. 
entity's organizational charts and the employees' job descriptions are unclear as to who actually 
performs these marketing related tasks. Thus, either the beneficiary herself is performing the 
marketing function or she does not actually supervise the marketing function as claimed by the 
petitioner. In either case, the AAO 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 (BIA 1988). Since 
the beneficiary works with agencies to create the ads. brochures, and websites, and assists in 
WAC 01 298 51555 
Page 7 
promoting and marketing products then the beneficiary is performing the operational marketing 
tasks of the business. If the beneficiary is performing these tasks, the AAO notes that an 
employee who primarily performs the tasks necessary to produce a product or to provide services 
is not considered to be employed in a managerial or executive capacity. Matter of Church 
Scientology International, 19 I&N Dec. 593,604 (Cornm. 1988). 
Counsel also claims that the beneficiary "{flunctions at a senior executive level and (dlirects an 
essential function." However, the AAO is not persuaded that the beneficiary's duties establish the 
beneficiary has control and authority over a function of the company. If a petitioner claims that 
the beneficiary is directing an essential function, the petitioner must identify the function with 
specificity, articulate the essential nature of the function, and establish the proportion of the 
beneficiary's daily duties attributed to directing the essential function. In addition, the petitioner 
must provide a comprehensive and detailed description of the beneficiary's daily duties 
demonstrating that the beneficiary directs the function rather than performs the duties relating to 
the function. In the instant matter, it is unclear what function the beneficiary directs. To allow 
the broad application of the term "essential function" to include such broad claims, without 
identifying specifics, would render the term meaningless. 
Moreover, the record does not sufficiently demonstrate that the beneficiary will manage a 
subordinate staff of professional, managerial, or supervisory personnel. The petitioner claims that 
the beneficiary supervises employees. Although the beneficiary is not required to supervise 
personnel, if it is claimed that her duties involve supervising employees, the petitioner must 
establish that the subordinate employees are supervisory, professional, or managerial. See 5 
lOl(a)(44)(AXii) of the Act. However, it is unclear whom the beneficiary actually supervises. 
The petitioner submitted three distinct U.S. organizational charts. The initial chart depicts the 
beneficiary as having two subordinates including an administrator, and a technical department 
manager who manages a dental technician. The second revised U.S. organizational chart, 
submitted in the response to the request for additional evidence, shows that the beneficiary's 
subordinates include an administrator and a sales and marketing employee. The third revised 
chart, submitted on appeal, indicates that the beneficiary's subordinates are a secretary and 
account executive. a laboratory manager. and although unciear, six dental technicians. It is also 
noted that the first two charts indicate that one of the beneficiary's subordinates, Naomi Murphy. 
is the administrator. However, in the third revised chart, Naomi Murphy is the secretary and 
account executive. 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 {BIG 1988). Additionally, on appeal, a petitioner 
cannot materially change a position's level of authority within the organizational hierarchy or the 
associated job responsibilities. The petitioner must establish that the position offered to the 
beneficiary when the petition was filed merits classification as a managerial or executive position. 
Matter of Michelin Tire Corporation, 17 I&N Dec. 248, 249 (Reg. Comm. 1978). A petitioner 
may not make material changes to a petition in an effort to make a deficient petition confonn to 
CIS requirements. See Maner oflzummi, 22 I&N Dec. 169, 176 (Assoc. Cornm. 1998). 
Finally, the petitioner claimed that it is in the "start-up phase and is still in the process of 
establishing its business in the United States; therefore, more local hiring is expected as business 
WAC 01 298 51555 
Page 8 
grows." However, the petitioner must establish eligibility at the time of filing the nonimmigrank 
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. Mutter of Michelin Tire Corp., 17 I&N 
Dec. 248 (Reg. Comm. 19781. In addition, the regulations at 8 C.F.R. 8 214.2(1)(3)(v)(C) aIlows 
the intended United States operation one year within the date of approval of the petition to 
support an executive or managerial position. At the time of filing, the petitioner had not reached 
the point that it can employ the beneficiary in a predominantly managerial or executive position. 
After careful consideration of the evidence, the AAO concludes that the beneficiary will not be 
employed in a primarily managerial or executive capacity. For this reason, the petition may not be 
approved. 
Beyond the decision of the director, the AAO is not persuaded that the beneficiary has been 
employed in a primarily managerial or executive capacity abroad as defined in section 101(a)(44) 
of the Act. As previously stated, to establish L-1 eligibility under section 101(a)(15)(L) of the 
Act, the petitioner must submit evidence that within three years preceding the beneficiary's 
application for admission into the United States, the foreign organization employed the 
beneficiary in a qualifying managerial or executive capacity, or in a specialized knowledge 
capacity, for one continuous year. See id. The petitioner submitted a broad description of the 
beneficiary's duties. For example, the petitioner described the beneficiary as the manager of the 
sales department who "establishfed] our parent company's business temtories and expandled] 
and develop[ed] the sales of our parent company's services." For this additional reason, the 
petition may not 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 Stares, 229 F. Supp. 2d 1025, 1043 
(E.D. Cal. 2001), a,. 345 F.3d 683 (9th Cir. 2003); see also Dor v. INS, 891 F.2d 997, 1002 n. 9 
126 Cir* 1989)(noting 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. 8 1361. Here, that burden has not 
been met. Accordingly, the appeal will be dismissed. 
ORDER: The appeal is dismissed.