dismissed L-1A Case: E-Learning Technologies

U.S. Department of Homeland Security 
20 Massachusetts Ave., N.W., Rm. 3000 
'- ,,. . Washington, DC 20529-2090 
identifying data deleted to 
prevent clearly unwarranted 
 U. S. Citizenship 
invasion of personal privacy 
 and Immigration 
Services 
File: EAC 08 059 51312 Office: VERMONT SERVICE CENTER Date: MAR 0 4 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. 5 1 101 (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 mher 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. 5 103.5 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 or reopen, as required by 8 C.F.R. 9 103.5(a)(l)(i). 
Administrative Appeals Office 
EAC 08 059 51312 
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 filed this nonimmigrant visa petition seeking to employ the beneficiary in the position of vice 
president-delivery as an L-1 A nonimmigrant intracompany transferee pursuant to section 101 (a)(15)(L) of the 
Immigration and Nationality Act (the Act), 8 U.S.C. § 1101(a)(15)(L). The petitioner is a corporation 
organized under the laws of the Commonwealth of Virginia and is allegedly in the "e-learning technologies" 
business.' 
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. 
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 to the petitioner asserted that the director 
erred and that the beneficiary will be primarily employed in arrexecutive capacity in the United States. Also, 
on November 17, 2008, almost seven months after filing the appeal, counsel attempted to submit additional 
evidence to the AAO pertaining to the beneficiary's proposed duties in the United States. 
To establish eligibility for the L-1 nonimmigrant visa classification, the petitioner must meet the criteria 
outlined in section 10 1 (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. § 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. 
1 
It is noted that, according to the corporate records of the Commonwealth of Virginia, the petitioner's 
corporate status was automatically terminated on July 2, 2007. Therefore, since the petitioner has not taken 
steps under Virginia law to seek reinstatement, the company can no longer be considered a legal entity in the 
United States. Therefore, if the appeal were not being dismissed for the reasons set forth herein, this would 
call into question the petitioner's continued eligibility for the benefit sought. 
EAC 08 059 51312 
Page 3 
(iv) 
 Evidence that the alien's prior year of employment abroad was in a position that was 
managerial, executive or involved specialized knowledge and that the alien's prior 
education, training, and employment qualifies hider to perform the intended 
services in the United States; however, the work in the United States need not be the 
same work which the alien performed abroad. 
The primary issue in 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. 9 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, hction, 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 f~e 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 iOl(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 from higher level executives, the board 
of directors, or stockholders of the organization. 
Although the petitioner claims that the beneficiary will be employed in an "executive" capacity in the United 
. EAC 08 059 51312 
Page 4 
States, the AAO will consider both the managerial classification and the executive classification. See 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 petitioner claims in the Form 1-129 to employ 3 workers and describes its business in a letter dated 
December 17, 2007 as the provision of "end-to-end 'Learning Solutions"' to customers. The petitioner claims 
to transform "unstructured raw content" into "effective learning solutions by leveraging the expertise of a 
team of Instructional Design specialists." The instructional strategy is then "brought to fruition by a highly 
creative multimedia team of Graphic Artists, Content Writers, Animators, and Programmers." 
The petitioner also describes the beneficiary's proposed job duties in the United States as "vice president, 
delivery" in the December 17, 2007 letter. The petitioner indicates that the beneficiary will perform the same 
duties in the United States as he currently provides in India, which are described as follows: 
[H]e is responsible for the areas of operations and strategic planning for business unit. On the 
operational side, [the beneficiary] has helped [the foreign employer] put a structure to the 
growth and has successfully delivered value added services such as blended learning and 
instructor led training. He educates and trains the delivery managers on the industry best 
practices with an objective of overall industry knowledge enhancement. He is responsible for 
improving delivery practices by sharing industry best practices and working with teams to 
develop key corporate accounts. He leads a team of learning development professionals 
providing services to fortune 100 companies. [The beneficiary] acts as a chief mentor and 
developed a mentoring framework to train the business and the delivery teams. 
The petitioner further describes the beneficiary's proposed duties as follows: 
[The beneficiary's] primary responsibility would be to fuel growth of business from existing 
clients for [the petitioner]. He will be responsible to build an on-site delivery team 
comprising of Project/Delivery Managers. He will direct and oversee the providing of 
systems and processes that would allow [the petitioner] to be the preferred partner for fortune 
100 companies. 
Specifically, [the beneficiary] will be charged with overall unit operations and management 
of projects from both, financial as well as leading the team of project managersldelivery 
managers, running his unit (more than one vertical) as a profit center across all 
projects/deliveries. He is responsible for increasing revenues fiom existing customers, 
reducing costs, and/or optimizing profitability for the [petitioner] and at a microlevel, for 
relationships more than one vertical.. . . 
Beneficiary will report directly to [the global delivery head]. With only general oversight and 
direction from [the global delivery head], [the beneficiary] will have autonomy to create and 
direct productivity, develop new value added solutions to existing clients, support global 
delivery, oversee and lead setting up dedicated teams, develop new systems and define 
efficient processes. He will also establish and manage cost effective outsourcing options. 
EAC 08 059 51312 
Page 5 
The petitioner submitted an organizational chart for the United States operation. 
 The chart shows the 
beneficiary reporting directly to the global delivery head. Although the chart indicates that the beneficiary 
will supervise 3 "project managers," it appears that these positions are vacant. Therefore, it does not appear 
that the beneficiary would supervise any subordinate workers upon petition approval. 
On January 2, 2008, the director requested additional evidence. The director requested, inter alia, job 
descriptions for the beneficiary's proposed subordinates in the United States. 
In response, the petitioner submitted a description of the proposed "project manager" positions. These 
proposed positions are generally described as working directly with clients in providing the petitioner's 
services. 
On March 26, 2008, 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 beneficiary will primarily perform executive duties in the United States. 
In support, counsel submits a brief and cites legacy Immigration and Naturalization Service (INS) Operating 
Instructions and U.S. Citizenship and Immigration Services (USCIS) internal memoranda. Also, on 
November 17, 2008, almost seven months after filing the appeal, counsel attempted to submit additional 
evidence to the AAO pertaining to the beneficiary's proposed duties in the United States. 
Upon review, counsel's assertions are not persuasive. 
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. !j 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. 
As a threshold issue, it is noted that future hiring plans may not be considered in determining whether the 
petitioner has established that the beneficiary will be employed in a primarily managerial or executive 
capacity in the United States. 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 (Reg. Comrn. 1978); Matter of Katigbak, 14 I&N Dec. 45, 49 (Comm. 1971). 
Accordingly, the proposed hiring of 3 "project managers" may not be considered by the AAO in determining 
whether the beneficiary will more likely than not primarily perform qualifying managerial or executive duties 
in the United States. 
Furthermore, counsel's attempt to supplement the record almost seven months after the filing of the instant 
appeal was inappropriate, and the evidence submitted will not be considered by the AAO. The regulations 
require appellants to file "the complete appeal including any supporting brief' within 30 days after service of 
the decision. 8 C.F.R. 5 103.3(a)(2). Although the Form I-290B and the regulations permit a brief or 
additional evidence to be filed directly with the AAO within 30 days of the filing of appeal, the petitioner in 
this matter indicated in the Form I-290B that its brief and additional evidence was attached to the appeal. See 
8 C.F.R. !j 103.3(a)(2)(vii). According, not only did the petitioner attempt to supplement the record almost 
. EAC 08 059 51312 
Page 6 
seven months after filing the instant appeal, the petitioner had already indicated that its brief and additional 
evidence were attached to the Form I-290B. Therefore, the AAO will not consider these additional materials 
for any purpose. Regardless, as the petitioner was put on notice in the Request for Evidence of deficiencies in 
the record pertaining to the beneficiary's proposed duties in the United States, the petitioner may not submit 
new evidence on appeal addressing these deficiencies. See Matter of Soriano, 19 I&N Dec. 764 (BIA 1988); 
Matter of Obaigbena, 19 I&N Dec. 533 (BIA 1988). The appeal will be adjudicated based on the record of 
proceeding before the director. 
In this matter, the petitioner'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, the petitioner 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, the petitioner states that the beneficiary's "primary responsibility would be to 
fuel growth of business from existing clients." He will also build an "on-site delivery team" and will "direct 
and oversee" the provision of services. Finally, he will be "charged with overall unit operations and 
management of projects" by "increasing revenues from existing customers, reducing costs, andlor optimizing 
profitability." However, the petitioner does not explain what, exactly, the beneficiary will do to "fuel growth 
of business" or how he will "direct and oversee" client projects without first hiring a subordinate staff of 
project managers, who are described in the record as principally coordinating the provision of these services. 
The fact that a petitioner has given a beneficiary a managerial or executive title and has prepared a vague job 
description which includes inflated job duties does not establish that a beneficiary will actually perform 
managerial or executive duties. Specifics are clearly an important indication of whether a beneficiary's duties 
are primarily executive or managerial in nature; otherwise meeting the definitions would simply be a matter 
of reiterating the regulations. Fedin Bros. Co., Ltd. v. Suva, 724 F. Supp. 1103 (E.D.N.Y. 1989), aff d, 905 
F.2d 41 (2d. Cir. 1990). 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 (Reg. Cornrn. 1972). 
Consequently, the record is not persuasive in establishing that the beneficiary will primarily perform 
qualifying duties. The petitioner has not established that the beneficiary's "primary responsibility," i.e., 
fueling business growth fiom existing clients, is a bona fide managerial or executive duty. To the contrary, 
this duty appears to be a sales, marketing, or customer relations tasks which, without evidence to the contrary, 
will not rise to the level of being a qualifying managerial or executive duty. As the record does not establish 
that the beneficiary will be relieved of the need to perform the non-qualifymg tasks inherent to this ascribed 
duty, it has not been established that the beneficiary will primarily perform managerial or executive duties in 
the United States. Furthermore, the record does not establish that the beneficiary will be relieved of the need 
to perform the non-qualifying tasks inherent to his duties, chiefly the provision of services to customers. 
Although the petitioner is described as directing and overseeing client projects, the petitioner has not yet 
employed any of the subordinate "project managers" who are described as coordinating the provision of these 
services. Accordingly, it appears more likely than not that the beneficiary will perform these non-qualifying 
administrative and operational tasks until the "project managers" are hired. Therefore, it appears that the 
beneficiary will "primarily" perform the tasks necessary to the provision of a service or the production of a 
product. 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 
EAC 08 059 51312 
Page 7 
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 International, 19 I&N Dec. 593,604 (Comrn. 1988). 
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 hnction of the organization. 
As noted above, as the "project managers" have not yet been hired, the beneficiary will not supervise any 
employees in the United States. Furthermore, although counsel does not specifically argue that the 
beneficiary will manage an essential function of the organization, the record would not support this position 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 will manage 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 hnction 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. § 214.2(1)(3)(ii). In addition, the petitioner's description of the beneficiary's daily duties must 
demonstrate that the beneficiary will manage the hnction rather than perform the tasks 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 or executive. Also, as explained above, it appears more likely than not that the beneficiary will 
primarily perform non-qualifying administrative or operational 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 or executive, if any, 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). Accordingly, the petitioner has not established that the beneficiary will be employed 
primarily in a managerial capacity. 
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. As explained above, it appears 
instead that the beneficiary will primarily 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. 
EAC 08 059 51312 
Page 8 
It is important to note that, in reviewing the relevance of the number of employees a petitioner has, federal 
courts have generally agreed that USCIS "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 1313, 1316 (9' Cir. 2006) (citing with approval Republic of Transkei v. 
INS, 923 F.2d 175, 178 (D.C. Cir. 1991); 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 USCIS 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, and the petition may not be approved for that reason. 
Beyond the decision of the director, the petitioner has failed to establish that the beneficiary was employed 
abroad in a position that was primarily managerial or executive in nature. 8 C.F.R. 4 214.2(1)(3)(iv). 
The petitioner described the beneficiary's job duties abroad in the December 17, 2007 letter. As these duties 
were described as being identical to the beneficiary's proposed duties in the United States, this job description 
was already reproduced verbatim in this decision, supra. The petitioner also submitted an organizational 
chart for the foreign employer. This chart shows the beneficiary supervising a "team" consisting of "skill 
head programming," "skill head arts," "skill head QA," "skill head cont tech," "PMs," and "BMs." 
Upon review, the record is not persuasive in establishing that the beneficiary was employed abroad in a 
primarily managerial or executive capacity. The beneficiary's vague job description fails to describe the 
beneficiary as primarily performing managerial or executive duties abroad. Once again, the fact that a 
petitioner has given a beneficiary a managerial or executive title and has prepared a vague job description 
which includes inflated job duties does not establish that a beneficiary actually performed managerial or 
executive duties. 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. Sava, 724 F. Supp. 1103, aff'd, 905 F.2d 41. 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. 
2 
Finally, it is noted that counsel's reliance on legacy INS Operating Instructions and USCIS memoranda is 
inappropriate. Unlike the Act, the regulations, and precedent decisions, agency policy memoranda and 
Operating Instructions do not have the force of law and do not vest petitioners with any substantive legal 
rights. Instead, Operating Instructions and policy memoranda are simply internal directives. Romeiro de 
Silva v. Smith, 773 F.2d 1021, 1024 (9th Cir.1985); see also Prokopenko v. Ashcroft, 372 F.3d 941, 944 (8th 
Cir. 2004). Regardless, as the petitioner has failed to establish that the beneficiary will more likely than not 
primarily perform qualifying duties in the United States, the petitioner is not eligible for the benefit sought. 
This is paramount to the analysis, and neither the Operating Instructions nor internal memoranda could 
reasonably be construed to relieve the petitioner of the need to establish its eligibility under the Act and the 
regulations. 
' EAC 08 059 51312 
- Page 9 
Furthermore, the petitioner failed to describe the duties of the beneficiary's claimed subordinate employees. 
Absent job descriptions for the subordinate workers, it cannot be concluded that the beneficiary was relieved 
of the need to perform non-qualifying tasks by a subordinate staff or that he supervised and controlled the 
work of other supervisory, managerial, or professional workers. 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; see also Matter of Church 
Scientology International, 19 I&N Dec. at 604. If initial evidence does not demonstrate eligibility for the 
benefit sought, USCIS may deny the petition. 8 C.F.R. 3 103.2(b)(8)(ii). 
Accordingly, the petitioner has not established that the beneficiary was employed abroad in a primarily 
managerial or executive capacity, and 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), afd, 345 F.3d 683 
(9th Cir. 2003); see also Dor v. INS, 891 F.2d at 1002 n. 9 (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, 8 U.S.C. fj 1361. Here, that burden has not been met. Accordingly, the 
appeal will be dismissed. 
ORDER: The appeal is dismissed.