dismissed L-1A Case: Elder Care

U.S. Department of Homeland Security 
20 Massachusetts Ave.. N.W.? Rm. A3042 
Washington, DC 20529 
&wed@ 
':A a* , i I' 3-ec U.S. Citizenship 
,'P%-J?A.v;$~ w~ - 
and Immigration 
w 
File: WAC-02-279-5360.5 Office: CALIFORNIA SERVICE CENTER Date: 
Petition: Petition for a Nonimmigrant Worker Pursuant to Section. 10 1 (a)(15)(L) of the Immigration 
and Nationality Act, 8 U.S.C. fj 1 101(a)(15)(L) 
IN BEHALF OF PET!TIONER: 
This is the decision of the Adn~inistrative 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. 
Wielnann, Direct& 
ministrative Appeals Office 
WAC-02-279-53605 
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 petition seeking to extend the employment of its President as an L-IA 
nonimmigrant intracompany transferee pursuant to section 101(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 in the State of California 
that operates a residential care facility for the elderly. The petitioner claims thatXit is the affiliate om 
located in Cebu City, Philippines. The beneficiary was initially granted a period of stay in L-I A 
status, and the petitioner now seeks to extend the beneficiary's stay for a two-year period. 
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 th'e AAO for review. On appeal, cpunseLfor the petitioner asserts that the beneficiary 
will be employed in a primarily managerial or executive capacity, - and that other employees will perform the 
tasks necessary to provide the petitioner's-care services. -In support of these assertions, counsel for the 
2- 
petitioner submits a brief. 
To establish eligibility for the L-l nonimmigrant visa classification, the petitioner must meet the criteria 
outlined in section 101(a)(l5)(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 (I)(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 himlher to perform the intended 
WAC-02-279-53605 
Page 3 
services in the United States; however, the work in the United States need not be the 
same work which the alien abroad. 
The 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 11-01(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 tc [he 
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 Se 
acting in a managerial capacity merely by virtue of the supervisor's supervisory 
duties unless the employees supervised are professional. 
Section I0 l(a)(44)(B) of the Act, 8 U.S.C. 5 1 101(a)(44)(B), defines the term "execgtive 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 
(ivj receives only general supervision or direction from higher level executives, the board 
of directors, or stockholders of the organization. 
In a letter filed with the initial petition on September 16, 2002, the petitioner described the beneficiary's job 
duties as follows: 
WAC-02-279-53605 
Page 4 
[The beneficiary] is the President of both [the foreign entity] and [the petitioner] . . . . [The 
beneficiary] is required to direct the management of the U.S. affiliate and establish 
organizational goals and policies. He exercises a wide- latitude of discretionary decision- 
making. He hiredfires personnel and has complete autonomy regarding personnel matters. 
[The beneficiary] formulates company financial - and business goals and develops business 
strategies. [The beneficiary] develops marketing strategies to increase business, investigates 
new markets if [sic] investment and acts as a liaison with the home company. 
[The beneficiary] is responsible for the supervision, control and coordination of the activities 
of the managerial and administrative personnel such as the Manager and Accountant . . . . 
We contemplate that at least a two-year extended assignment in the United States wiil be 
necessary for the completion of a refocus of ope~ations here and the expanded enterprise is 
expected to have hired additional personne!;at all levels within the coming year for the two 
residential care facilities. . 
On November 5, 2002, the director requested additional evidence. In part. the director requested: (i) an 
organizational chart for the petitioner; (2) a description of the beneficiary's subordinates, including their 
duties, educational level, and annual compensation; and (3) a more detailed description of the beneficiary's 
duties, including an indication of the percentage cf time the beneficiary devotes to his respective tasks. 
In a response dated January 21, 2003, in part the petitioner submitted an organizational chart and a letter 
addressing the director's concerns. The letter further described the beneficiary's subordinates and duties as 
follows: 
i 
The beneficiary at present directly supervises the Administrator/Registered Nurse . . ., who is 
a fully Registered Nurse in the State af California. [The petitioner] employs one full-time 
certified caregiver. . ., and one part-time caregiver. . . when needed on a 1099 basis. 
[The beneficiary] is not required to supervise any of the actual day-to-day labor, which is the 
care giving itself and the looking after all of the needs and requests of the residents, rather he 
is an entrepreneur actively seeking to expand the investment of the foreign entity. ~e is 
managing the function of expansion and all overlying decision making for [the petitioner] . . . 
WAC-02-279-53605 
Page 5 
The beneficiary has invested the management and allocation of all day-to-day operations to 
[the AdministratorIRegistered Nurse] . . . . 
It is planned with the most recent projections, that [the petitioner] will operate two Elderly 
Residential Care Facilities before the end of 2003, for which an additional team will be hired. 
[W]e provide the following information reflecting a regular work week for the beneficiary; 
Development of the business; 
Negotiating contracts 10% of work week 
- for the food, supplies, and other commodities.  h he beneficiary] is also required to reassess 
the fees associated with the care provided should a resident become more dependant [sic1 on 
the services of [the petitioner]. 
MarketingIAdvertising Facility and Employment Opy. 15% of work week 
Beneficiary contacts and proofs the advertisements with the Elderlink, NewLifestyles.com 
and similar residential correspondence. He is actively involved in the internet marketing as 
well and has been conducting a feasibility study and research of additional target areas for the 
second [guest home of the petitioner], by studying the competition. 
lI,iaisoe between the foreign entity and the US Investment Venture: 25% of work week; 
[The beneficiary] is actively involved with interim Operating Manager of [the foreign entity] 
. . . . He. is required to negotiate contracts, and ensure that efficiency and effectiveness are 
still in place even after the temporary transfer of [the beneficiary] to the US . . . . [The 
beneficiary] is in the process of opening a second hardware store in the Cebu City area, and 
will be required to temporarily travel to the Ph~lippines sometime in MarchIApril to 
personalize the deal and supervise the first few weeks oioperaiinns. 
Actively seeking/Pursuing New investment ventures For the petitioner; 30% of work 
week 1 I 
[The beneficiary] has spent a great deal of !is L-I transfer on the field actively seeking 
further investments as it has been relatively easy to allow the current staff to run the facility 
without his daily presence. Work with real estate brokers on available properties for the 
[petitioner's second guest home]. Visit the place3 with the broker when applicable. 
Financial related responsibilities; 20% of work week 
Monthly meeting with accountant on the investment ventures (budgeting, projections, cash 
flow, expenses, sales figui-es, accounts payable ...) Arranging the investment finance in co- 
Page 6 
ordination [sic] with the parent company. Deal with the administrator weekly and address 
any suggestions and ways to cut costs while maintaining complete resident satisfaction. 
On January 31, 2004, the director denied the petition. The director determined that the petitioner did not 
establish that the beneficiary will be employed in the United States in a primarily managerial or executive 
capacity. Specifically, the director stated: 
The information provided by the petitioner describes the beneficiary's duties only in broad 
and general terms. There is insufficient detail regarding the'ictual duties of the beneficiary. 
Duties described as responsible for the supervision, control and coordination of the activities 
of the managerial and administrative personnel such as the manager and accountant are 
without any context in which to reach a determination as to whether they would be 
qualifying. The use of the position title of "president: is not.sufficient. 
Further, the petitioner's evidence is not sufficient in establishing that the beneficiary has been 
ar will be managing a subordinate staff of professional, managerial, or supervisory personnel . 
who relieve himfher from performing nonqualifying duties. 
On appeal, counsel for the petitioner asserts that the beneficiary will be employed in a primarily managerial or 
executive capacity, and that other employees will perform the tasks necessary to provide the petitioner's care 
services. Counsel submits a brief, in which he describes the beneficiary's duties as follows: 
Beneficiary wiil be performing the following executive duties for Petitioner: 
Negotiate all contracts with guests and family members of the guests at the care 
home to secure the best deal possible which in turn allowed for increase profit; (20%) 
Be responsible for planning and developing market strategies to increase the 
company's awareness to potential guests; (1 5%) 
Be responsible for the preparation of all legal matters regarding contracts drafted, 
company yearly registration requirements, and all aspects of governmental required 
registiation involved with running a care home; (1 5%) 
Be responsible for all major financial decisions regarding bank loans, pricelist 
computations and profit margins; (25%) 
Work on the uarterl forecast for profit and loss with the company's CF~ 
- - 
WAC-02-279-53605 
Page 7 
Meet wit-dministrator of the company to discuss employee 
progress reviews to ensure that the employees understand their roles in advancing the 
company; (5%) 
Work on the updated training schedules for employees and pass along memos 
addressing performance indicators to keep the employees challenged; (5%) 
Work with the accounting firm on the yearly financial statements and tax returns. 
(1 0%) 
Counsel asserts that the beneficiary's duties meet the two-part test for managerial or executive capacity 
discussed by the Board of Immigration Appeals in Matter of Church Scientology Infernafional, 19 I&N Dec. 
593, 597 (Comm. 1988). Counsel further cites an unpublished AAO decision to stand for the proposition that 
a beneficiary's duties, not the petitioner's staff size, determine whether a beneficiary is employed in a 
primarily managerial or executive capacity. 
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. 
214.2()(3)(). 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. The petitioner must specifically state whether the beneficiary is primarily employed in a 
managerial or executive capacity. A beneficiary may not claim to be employed as a hybrid 
"executive/manager" and rely on partial sections of the two statutory definitions. 
In the instant case, the petitioner asserts that the beneficiary is primarily engaged in both managerial duties 
and executive duties. To sustain such an assertion, the petitioner must establish that the beneficiary meets 
each of the four criteria set forth in the statutory definition for executive duties under section 10 l(a)(44)(B) of 
the.Act, and the statutory definition for managerial duties under section 101(a)(44)(;4) of the Act. At a 
minimum, the petitioner must establish that the beneficiary is primarily employed in one or the other capacity. 
See 8 C.F.R.' 9 2 14.2(1)(3)(ii). 
The petitioner states that the beneficiary will spend 10 percent of his time negotiating contracts for food, 
supplies, and other commodities, as well as evaluating existing contracts for guests at the petitioner's Facility. 
However, the petitioner has provided no evidence of such contracts for f~od and supplies. Going on record 
without supporting documentary evidence is not sufficient for purposes of meeting the burden of proof in 
these pr~ceedings. Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm. 1972). While the 
petitioner submitted copies of three contracts for care giving services, it is doubtful that negotiation for these 
three contracts required or will require 10 percent of the beneficiary's time. The petitioner states that the 
beneficiary will spend 15 percent of his time performing marketing and advertising tasks. As the petitioner 
has not indicated that the beneficiary's subordinates assist with these duties, it is presumed that the beneficiary. 
is exclusively responsible for all related non-qualifying duties such as creating advertisements and contacting 
media sources to arrange for placement of such ads. The petitioner provides that the beneficiary will spend 
25 percent of his time acting as a !iaison between the foreign entity and the petitioner. Yet, the petitioner has 
WAC-02-279-53605 
Page 8 
not sufficiently described the beneficiary's duties in this regard such that the AAO can determine whether they 
are managerial or executive in nature. The petitioner indicates that the beneficiary will spend 30 percent of 
his time seeking new investment ventures for the petitioner, such as searching for a location for a second care 
giving facility. Yet, the petitioner has not provided a detailed explanation or documentation to reflect what 
efforts the beneficiary has undertaken, and what he will do in the future. 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 Crafr of California, 14 I&N Dec. at 190. Thus, these duties have not been 
shown to be managerial or executive. The petitioner has failed to establish that these duties, comprising 80 
' 
percent of the beneficiary's time, are devoted to managerial or executive tasks. 
<, 
On appeal, counsel provided a new breakdown of the beneficiary',~ duties and the amount of time he will 
/ devote to his respective tasks. However, this breakdown is indonsistent with the breakdown of duties 
submitted in response to the director's request for evidence. For $xample, counsel states that the beneficiary 
will spend 20 percent of his time negotiating contracts, while the petitioner previously stated he will devote 
10 percent of his time to this task. Counsel stads that the beneficiary will spend 25 percent of his time 
performing financial tasks, while the petitioner breviously stated he will devote 20 percent of his time to these 
duties. The petitioner previously provided that the beneficiary will devote 30 percent of his time to pursuing 
new investment ventures, yet on appeal counsel accounts for 100 percent of the beneficiary's time but does 
not name this as one of the his responsibilities. On appeal, a petitioner cannot offer a new position to the 
beneficiary, or materially change a position's title, its level of authority within the organizational hierarchy, or 
the associated job responsibilities. The petitioner must establish that the position offered to the beneficial? 
when the petition was filed merits classification as a managerial or executive position. Mutter 0J~12fichelin 
Tire Corp., 17 I&N Dec. 248, 249 (Reg. Con~m. 1978). A petitioner may not make material changes to a 
petition in an effort to make a deficient petitiorr conform to CIS requirements. See Matter oflzunmti, 22 !&N 
Dec. 169, 176 (Assoc. Comm. 1998). As counsel's job description provided on appeal contains material 
changes to the beneficiary's duties, it will not be given weight in this proceeding. 
The petitioner's organizational chart reflects that the beneficiary will have supervisory authority over three 
employees, including an adrninistratorlregistered nurse, a part-time caregiver, and a full-time caregiver. Yet, 
on Form 1- 129 the petitioner indicates that it has only one employee. Further, the petitioner's documentation 
presents inconsistent information regarding who is the administratorlregistered nurse. In response to the 
director's request for evidence, the petitioner stated that its administratorlregistered nurse 
t the petitioner's payroll documents do not include evidence of payments to this in d!lm!lm 
further noted that some of the petitioner's contracts were signed by the administrator. On appeal, 
counsel now claims that the administrator iet counsel fails to explain whether there was J 
change in the petitioner's staffing. It is incumbent upon the petitioner to resolve any inconsistencies in the 
record by independent objective evidence. Any attempt to explain or ieconcile such inconsistencies will not 
suffice unless the petitioner submits competent objective evidence pointing to where the truth lies. Mutter oj 
Ho, 19 T&N Dec. 582, 591 -92 (BIA 1988). Thus, the petitioner has failed to sufficiently establish the number 
of individuals it employs, or who those individuals are. 
WAC-02-279-53605 
Page 9 
Although the beneficiary is not required to supeyise personnel, if it is claimed that his duties involve 
supervising employees, the petitioner must establish that the subordinate employees are supervisory, 
professional, or managerial. See 9 10 1 (a)(44)(A)(ii) ofthe Act. 
In evaluating whether the beneficiary manages professional employees, the AAO must evaluate whether the 
subordinate positions require a baccalaureate degree as a minimum for entry into the field of endeavor. 
Section 10l(a)(32) of the Act, 8 U.S.C. 9 1101(a)(32), states that "[tlhe termprofession shall include but not 
be limited to architects, engineers, lawyers, physicians, surgeons, and teachers in elementary or secondary 
schools, colleges, academies, or seminaries." The term "profession" contemplates knowledge or learning, not 
merely skill, of an advanced type in a given field gained by a prolonged course of specialized instruction and 
study of at least baccalaureate level, which is a realistic prerequisite to entry into the particular field of 
endeavor. Mutter ($Sea, 19 I&N Dec. 817 (Comm. 1988); Matter of ling, 13 I&N Dec. 35 (R.C. 1968); 
Mailer ofshin, 1 1 I&N Dec. 686 (D.D. 1966). 
Therefore, the AAO must focus on the level of education required by the position, rather than the degree held 
by a subordinate employee. The possession of a bachelor's degree by a subordinate employee does not 
automatically lead to the conclusion that an employee is employed in a professional capacity as that term is 
defined above. In the instant case, the petitioner indicates that the administratorlregistered nurse earned a 
k2chelor1s degree in nursing. A bachelor's degree in nursing is understandably a prerequisite to managing the 
care of the petitioner's elderly clients and ensuring that the two caregivers adhere to safe procedures. Thus, 
the petitioner has provided sufficient explanation to establish that the administratorlregistered nurse is n 
i;rofessional. The petitioner states that its two caregivers completed bachelor's degrees, yet it does not 
.ipecifv what subject was studied. Accordingly, the petitioner has not shown that such training is required in 
crder to perform the duties of the caregivers, and they cannot be deemed professionals. Nor has the petitioner 
shown ihat the caregivers supervise subordinate staff members or manage a clearly defined department or 
function of the petitioner, such that they could be classitied as managers or supervisors. 
1 
While the petitioner has shown that the beneficiary oversees one subordinate who is a professional, the 
petitioner has indicated that the beneficiary spends a minimal amount of time actually performing supervisory 
duties. In the breakdown of the time the beneficiary devotes to his duties, the petitioner only mentions the 
beneficiary's Interaction with the administrator in the section that provides that the beneficiary devotes 20 
percent of his time to financial matters. The definitions of executive and managerial capacity have two parts. 
First, thc petitioner must show that the beneficiary performs the high level responsibilities that are specified in 
!he definitions. Second, the petitioner must prove that the beneficiary primarily performs these specified 
responsibilities and does not spend a majority of his or her time on day-to-day functions. Champion World, 
Inc. v. INS, 940 F.2d 1533 (Table), 1991 WL 144470 (9th Cir. July 30, 1991). While the petitioner has 
established that the beneficiary engages in the managerial task of supervising a professional, it has not shown 
that the beneficiary is primarily engaged with managerial or executive tasks. Thus, contrary to counsel's 
assertion, the petitioner has riot established that the beneficiary's duties are "primarily at the managerial or 
executive level" as discussed in Marier of Church Scientolow International, 19 I&N Dec. 593, 597 (Comm. 
1988). 
WAC-02-279-53605 
Page 10 
Counsel cites an unpublished AAO decision to stand for the proposition that a beneficiary's duties, not the 
petitioner's staff size, determine whether a beneficiary is employed in a primarily managerial or executive 
capacity. While 8 C.F.R. 3 103.3(c) provides that AAO precedent decisions are binding on all CIS employees 
in the administration of the Act, unpublished decisions are not similarly binding. Further, as discussed above. 
the beneficiary's duties do not show that he is primarily engaged with managerial or executive duties. 
The record is not persuasive in demonstrating that the beneficiary has been or will be employed in a primarily 
managerial or executive capacity. The petitioner indicates that it plans to hire additional managers and 
employees in the future. However, 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, the petitioner has not established that the beneficiary will be employed in a 
primarily or managerial capacity, as required by 8 C.F.R. 5 214.2(1)(3)(ii). For this reason, the appeal will be 
dismissed. 
111 visa petition proceedings, the burden of proving eligibility for the benefit sought remains entirely with the 
petitioner. Section 291 ofthe Act, 8 U.S.C. 4 1361. Here, that burden has not been met. 
ORDER: The appeal is dismissed.