dismissed L-1A Case: Elder Care

identifying data deleted to 
prevent clearly unwmanted 
invasion of personal privac~ 
PUBLIC COP; 
A 
U.S. Department of Homeland Security 
20 Mass. Ave. NW, Rm. 3000 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
File: WAC 06 114 5 1543 Office: CALIFORNIA SERVICE CENTER Date: 
Petition: 
 Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(15)(L) of the Immigration 
and Nationality Act, 8 U.S.C. 5 1101(a)(15)(L) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to 
the office that originally decided your case. Any further inquiry must be made to that office. 
(,-- ,; ...--;;;;;-; 43--& 
A' 
 J 
Robert P. Wiemann, Chief 
Administrative Appeals Office 
WAC 06 114 51543 
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 managing director as 
an L-1A nonimmigrant intracompany transferee pursuant to section 101(a)(15)(L) of the Immigration and 
Nationality Act (the Act), 8 U.S.C. fj 1101(a)(15)(L). The petitioner, a California corporation, o erates two 
residential home care facilities for the elderly. The petitioner states that it is a subsidiary of h 
I, located in the Philippines. The beneficiary was initially granted a one year period 
in L-1A classification in order to open a new office in the United States, and the petitioner now seeks to 
extend her status for two additional years. 
The director denied the petition concluding that the petitioner did not establish that the beneficiary would 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 for the petitioner disputes the director's 
findings, attempts to clarify the petitioner's staffing levels, and asserts that the beneficiary is in fact relieved 
fkom performing non-qualifying duties associated with the day-to-day business operations of the company. 
Counsel submits a brief and additional evidence in support of the appeal. 
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. fj 214.2(1)(3) states that an individual petition filed on Form 1-129 shall be 
accompanied by: 
(i) 
 Evidence that the petitioner and the organization which employed or will employ the 
alien are qualifying organizations as defined in paragraph (l)(l)(ii)(G) of this section. 
(ii) 
 Evidence that the alien will be employed in an executive, managerial, or specialized 
knowledge capacity, including a detailed description of the services to be performed. 
(iii) 
 Evidence that the alien has at least one continuous year of full time employment 
abroad with a qualifying organization within the three years preceding the filing of 
the petition. 
(iv) 
 Evidence that the alien's prior year of employment abroad was in a position that was 
managerial, executive or involved specialized knowledge and that the alien's prior 
education, training, and employment qualifies himher to perform the intended 
WAC 06 114 51543 
Page 3 
services in the United States; however, the work in the United States need not be the 
same work which the alien performed abroad. 
The regulation at 8 C.F.R. 3 214.2(1)(14)(ii) also provides that a visa petition, which involved the opening of a 
new office, may be extended by filing a new Form 1-129, accompanied by the following: 
(A) 
 Evidence that the United States and foreign entities are still qualifying organizations 
as defined in paragraph (l)(l)(ii)(G) of this section; 
(B) 
 Evidence that the United States entity has been doing business as defined in 
paragraph (l)(l)(ii)(H) 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 sole issue addressed by the director is whether the petitioner established that the beneficiary will be 
employed by the United States entity in a primarily managerial or executive capacity. 
Section 10 l(a)(44)(A) of the Act, 8 U.S.C. 3 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, function, or component of 
the organization; 
(ii) 
 supervises and controls the work of other supervisory, professional, or managerial 
employees, or manages an essential function within the organization, or a department 
or subdivision of the organization; 
(iii) 
 if another employee or other employees are directly supervised, has the authority to 
hire and fire or recommend those as well as other personnel actions (such as 
promotion and leave authorization), or if no other employee is directly supervised, 
functions at a senior level within the organizational hierarchy or with respect to the 
function managed; and 
(iv) 
 exercises discretion over the day to day operations of the activity or function for 
which the employee has authority. A first line supervisor is not considered to be 
WAC06 11451543 
Page 4 
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. 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. 
The petitioner filed the nonimmigrant petition on March 3, 2006. The petitioner indicated that the beneficiary 
would be employed as managing director of the six-person company under the extended petition, and attached 
the following position description to Form 1-129: 
In this position [the beneficiary] is responsible for managing and directing the entire business 
operations of the U.S. company. 
The following are her detailed job duties: 
1. She has full discretionary authorities to be in charge of personnel action in hiring, firing, 
and promotion of high level positions, such as the department managers, supervisors or 
professionals; 
2. She supervises the daily operations in the entire company; 
3. She confers and coordinates the heads among departments (i.e. administrative, 
accounting, and marketingipublic relations) in company's objectives and policies; 
4. She supervises her subordinates [sic] personnel to implement properly the company's 
policies and procedures; 
5. She also negotiates the company lease contracts and other business contracts with home 
care tenants and reports to the company's President; and 
6. She is has been [sic] development a management operations system according to 
company's business policies and objectives. 
The petitioner submitted an organizational chart for the U.S. company indicating that the beneficiary as "vice 
presidentloperations manager," reports to the company president and supervises an administrator, who in turn 
supervises two caregivers and one "reliever caregiver." The chart also depicts a treasurer who reports to the 
president. The petitioner indicated that the company operates two residential care facilities for the elderly 
located in Diamond Bar, California. 
WAC 06 114 51543 
Page 5 
In support of the petition, the petitioner provided a copy of its California Form DE-6, Employee Wage and 
Withholding Report, for the fourth quarter of 2005, which listed a total of four employees, including the 
beneficiary and the three individuals identified as caregivers. The Form DE-6 indicates that the company 
employed four employees during October and November 2005, and only three employees in December 2005. 
Based upon the wages paid, it appears that the "reliever caregiver" left the company prior to December 2005. 
On April 7, 2006, the director issued a request for additional evidence, in part, instructing the petitioner to 
submit additional evidence to establish that the beneficiary will be employed in the United States in a 
qualifying managerial or executive capacity. Specifically, the director requested: (1) a more detailed 
description of the beneficiary's duties in the United States, indicating exactly whom the beneficiary directs 
including their job title and position description; (2) an organizational chart for the U.S. company that clearly 
identifies the beneficiary's position and lists all employees under the beneficiary's supervision by name and 
job title; (3) if any of the petitioner's employees is a degree holder, a copy of the employee's diploma and an 
explanation as to how the education is related to the duties performed; (4) copies of the U.S. company's 
payroll summary, Forms W-2 and W-3, evidencing wages paid to employees for 2005; (5) copies of the U.S. 
company's IRS Forms 941, Employer's Quarterly Federal Tax Return, for all employees for the last four 
quarters; (6) a list of the specific goals and policies the beneficiary has established, and the specific 
discretionary decisions the beneficiary has exercised, over the last six months; and (7) a specific day-to-day 
description of the duties the beneficiary has performed over the last six months. 
In a response dated May 30, 2006, the petitioner submitted the following description of the beneficiary's 
duties: 
Having full discretionary authorities in hiring, firing, and evaluating, promoting 
subordinate professionals, namely the administrator and the financial officer and other 
staff; 
Being responsible for managing and directing the entire business operations of the 
company; 
Designating and supervising subordinate projects and tasks to ensure that projects are on 
schedule and effectively implemented the company's objectives and policies; 
Developing mechanisms of coordination among operations, marketing and finance in the 
daily operations; 
Establishing company goals, policies and operations procedures and supervising 
subordinates to properly implement company's operations procedures, policies and 
objectives; 
Negotiating together with the administrator, approving and signing the admission 
agreement contracts with home care tenants; and 
Attending, reporting and participating in Board meetings with the President and 
Directors. 
In addition, in response to the director's request for a day-to-day description of the beneficiary's duties, the 
petitioner stated: 
WAC 06 114 51543 
Page 6 
Confer, coordinate and oversee and give instructions on matters which administrator was 
in charge of about the operations of the facilities and implement company's policies and 
operations procedures. 
Devise marketing strategies to meet company's objectives and delegate assignments to 
subordinates and follow-up. 
Supervise and approved the work of finance manager including the budget and 
miscellaneous expenditures of the facilities 
Meet with and approve possible home care tenants. 
Visit the facilities and ensure that the operations and safety standards set by the company 
are met. 
The petitioner noted that the beneficiary's discretionary decisions over the last six months had included hiring 
the administrator and financial manager, establishing the company's operations policies and procedures, 
approving and signing two lease agreements, adopting marketing strategies, approving the purchase of a 
company vehicle, and approving budgets and acquisition of equipment, medical supplies and other supplies 
for the petitioner's facilities. The petitioner further indicated that the beneficiary had established personnel 
and pay policies for employees, created job descriptions for individual employees, created admission policies 
and eviction procedures for the home care facilities, devised marketing strategies to attract tenants, and 
created house rules for the petitioner's facilities. The petitioner submitted a copy of its personnel policies, an 
employee agreement, a job description for "facility administrator," the petitioner's "house rules," admission 
policy, and eviction procedures. 
In addition, the petitioner submitted a revised organizational chart, indicating that the beneficiary supervises 
the administrator and a finance officer (previously identified as "treasurer" on the initial organizational chart), 
and that the administrator in turn supervises two caregivers, one assigned to each home care facility. The 
petitioner stated that the president of the company establishes the company's objectives and supervises the 
beneficiary "in overseeing the company's operations and achieving company's objectives." The petitioner 
further indicated that the finance officer has a bachelor's degree in business administration and is responsible 
for purchasing, payroll, accounting, budget, payments and other financial aspects of the company, under the 
beneficiary's direction. 
The petitioner noted that the administrator has a bachelor's degree in biology, is qualified as a physician 
assistant, has successfully completed a "Residential-Elderly Administrator Program" and has been certified by 
the California Department of Social Services. The petitioner stated that this employee is responsible for the 
proper training of home care staff, familiarity with the rules and regulations regarding residential elderly care, 
ensures compliance with state regulations, oversees the daily operations of the facilities and the caregiver 
staff, and maintains recognized standards of care and sanitation. Finally, the petitioner stated that it has one 
caregiver assigned to each residential facility to provide personal care and assistance to the residents. 
The petitioner submitted copies of educational credentials for the finance officer and administrator, and stated 
that these employees, along with the company president, are minor stockholders of the company and have 
chosen not to receive any compensation until the company becomes profitable. 
WAC 06 114 51543 
Page 7 
The director denied the petition on August 16, 2006, concluding that the petitioner had failed to establish that 
the beneficiary would be employed in a primarily managerial or executive capacity under the extended 
petition. The director observed that the petitioner had only established that it employs the beneficiary and 
three part-time caregivers, and had not established the employment of workers in the administrative, 
accounting, and marketinglpublic relations departments claimed to be managed by the beneficiary. The 
director thus concluded that the beneficiary herself has to perform all duties related to these functions, rather 
than performing primarily managerial or executive duties. The director determined that the U.S. entity lacks 
the organizational complexity to support the beneficiary in an executive or managerial position. Finally, the 
director determined that the evidence submitted does not establish that the beneficiary supervises a 
subordinate staff of professional, managerial, or supervisory personnel who will relieve her from performing 
non-qualifying duties. 
On appeal, counsel for the petitioner asserts that the petitioner did in fact have sufficient staff to perform the 
day-to-day operations of the petitioning company, noting that the petitioner has continually employed two 
caregivers to staff its facilities, while the other employees, including the president, finance managerltreasurer, 
and administrator, are shareholders of the company who have opted to work for the petitioner without pay in 
exchange for stock options. The petitioner notes that its facilities are currently not fully occupied and the 
current staff is sufficient to provide care for the six residents living at the two facilities. Counsel further 
asserts that the petitioner began to pay wages to the treasurerlfinance manager as of June 2006. 
In support of the appeal, the petitioner submits state and federal uarterl wage reports for the last quarter of 
2005 and first two quarters of 2006; a statement from dated August 28, 2006, confirming 
that he is the treasurer of the petitioning company, works 40 hours per week, 
purchasing, payroll and other financial aspects of the company; a statement from 
August 25, 2006, confirming that she works 20 hours per week as the administrator of the petitioning 
company with respon 
 tering and overseeing the operation of the facilities; and business 
documents, identifyin nd company representatives. 
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(1)(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 has provided a vague and nonspecific description of the beneficiary's duties that fails to 
demonstrate what the beneficiary does on a day-to-day basis. For example, the petitioner stated that the 
beneficiary is responsible for "managing and directing the entire business operation of the company"; 
"designating and supervising subordinate projects and tasks to ensure that projects are on schedule"; 
establishing company goals, policies and operations procedures," "effectively implemented company's 
objectives and procedures," and giving "instructions on matters regarding the company's business operations, 
policies and objectives"; "participating in Board meetings"; and "developing mechanisms of coordination 
among operations, marketing and finance in the daily operations." These vaguely-defined responsibilities 
appear to overlap with those functions attributed to the president of the company, and raise questions 
regarding the need for a company with, at most, six employees, to employ two persons to establish policies 
WAC 06 114 51543 
Page 8 
and objectives and oversee the management and direction of the entire business. Reciting the beneficiary's 
vague job responsibilities or broadly-cast business objectives is not sufficient; the regulations require a 
detailed description of the beneficiary's daily job duties. The petitioner has failed to provide any detail or 
explanation of the beneficiary's activities in the course of her daily routine. The actual duties themselves will 
reveal the true nature of the employment. Fedin Bros. Co., Ltd. v. Suva, 724 F. Supp. 1 103, 1 108 (E.D.N.Y. 
1989), affd, 905 F.2d 41 (2d. Cir. 1990). The petitioner's description of the beneficiary's ongoing duties is 
not specific enough to establish the tasks she will perform under the extended petition, such that they could be 
classified as managerial or executive in nature. 
Although the beneficiary is not required to supervise personnel, if it is claimed that a beneficiary qualifies for 
managerial capacity as a personnel manager, the petitioner must demonstrate that the beneficiary primarily 
supervises and controls the work of supervisory, professional, or managerial employees. See 
10 1 (a)(44)(A)(ii) of the Act. 
The petitioner claims that the beneficiary directly supervises two employees, a finance rnanagerltreasurer and 
an administrator. However, the AAO notes that the petitioner initially indicated that the finance manager 
reports directly to the president of the company, and not to the beneficiary, who was depicted on the initial 
organizational chart as supervising only the administrator. 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). A petitioner may not make material 
changes to a petition in an effort to make a deficient petition conform to CIS requirements. See Matter of 
Izummi, 22 I&N Dec. 169, 176 (Assoc. Comm. 1998). Therefore, the petitioner has not demonstrated that the 
beneficiary manages the finance managerltreasurer. 
While it appears that the administrator may be employed in a professional andlor supervisory capacity, 
evidence submitted on appeal indicates that this employee works only 20 hours per week. Given that the 
petitioner operates two facilities which are required to be staffed 24 hours per day, the record does not 
establish that supervising the administrator is in fact the beneficiary's primary responsibility, and therefore, 
she cannot be considered to be employed in a primarily managerial capacity based on her supervisory 
responsibilities alone. Whether the beneficiary is a managerial or executive employee turns on whether the 
petitioner has sustained its burden of proving that the beneficiary's duties are "primarily" managerial or 
executive. See sections 101(a)(44)(A) and (B) of the Act. Here, the petitioner fails to document what 
proportion of the beneficiary's duties would be managerial functions and what proportion would be non- 
managerial. For this reason, the AAO cannot determine whether the beneficiary is primarily performing the 
duties of a manager or executive. See, e.g., IKEA US, Inc. v. U.S. Dept. of Justice, 48 F. Supp. 2d 22, 24 
(D.D.C. 1999). 
Without a detailed description of the beneficiary's duties on which to base his determination, the director 
reasonably looked to the petitioner's staffing levels to determine if the petitioner submitted evidence to 
support its claim that the beneficiary would be employed in a primarily managerial or executive capacity. The 
petitioner's description of the beneficiary's duties cannot be read or considered in the abstract, rather the 
AAO must determine based on a totality of the record whether the description of the beneficiary's duties 
represents a credible perspective of the beneficiary's role within the organizational hierarchy. 
WAC 06 114 51543 
Page 9 
As required by section 101(a)(44)(C) of the Act, if staffing levels are used as a factor in determining whether 
an individual is acting in a managerial or executive capacity, USCIS must take into account the reasonable 
needs of the organization, in light of the overall purpose and stage of development of the organization. In the 
present matter, however, the regulations provide strict evidentiary requirements for the extension of a "new 
office" petition and require CIS to examine the organizational structure and staffing levels of the petitioner. 
See 8 C.F.R. 4 214.2(1)(14)(ii)(D). The regulation at 8 C.F.R. 4 214.2(1)(3)(v)(C) allows the "new office" 
operation one year within the date of approval of the petition to support an executive or managerial position. 
There is no provision in CIS regulations that allows for an extension of this one-year period. If the business 
does not have sufficient staffing after one year to relieve the beneficiary from primarily performing 
operational and administrative tasks, the petitioner is ineligible by regulation for an extension. 
At the time of filing, the petitioner was a one-year-old company operating two residential elderly care 
facilities with a maximum capacity of twelve residents and a current population of six residents, who were 
placed at both of the company's locations. According to the petitioner's brochure, the facilities provide three 
meals per day, medication monitoring, 24-hour professional staff, assistance with daily life activities, 
housekeeping and laundry services, social activities and recreational programs, individual care plans, 
transportation to medical appointments and documentation of each resident's daily activities. At the time of 
filing, the company employed the beneficiary as vice presidentloperations manager, a president, a 
treasurerlfinance manager, a part-time administrator, and two caregivers. 
Based on the petitioner's representations regarding the nature of its business and the services it provides, the 
record does not establish that two caregivers, even if employed full-time, could attend to all of the resident's 
needs in two facilities 24 hours per day, seven days per week. Although the record does suggest that the 
petitioner may have a live-in arrangement with the caregivers, the petitioner has not clearly described the 
schedules worked by these employees, nor established how a single employee could perform all of the duties 
associated with caring for residents and maintaining the facilities without some relief, assistance, or 
supervision. It is appropriate for CIS to consider the size of the petitioning company in conjunction with other 
relevant factors, such as a company's small personnel size, the absence of employees who would perform the 
non-managerial or non-executive operations of the company, or a "shell company" that does not conduct 
business in a regular and continuous manner. See, e.g. Systronics Corp. v. INS, 153 F. Supp. 2d 7, 15 (D.D.C. 
2001). The size of a company may be especially relevant when CIS notes discrepancies in the record and 
fails to believe that the facts asserted are true. Id. 
The only person claimed to supervise the caregivers is the administrator, who works only 20 hours per week 
and therefore could spend no more than two hours per day at each facility. On appeal, counsel notes that the 
"officers" have substituted for the caregivers as necessary. However, based on the petitioner's staffing levels it 
is reasonable to assume, and has not been shown to be otherwise, that the beneficiary, who has a medical 
background, is required to assist in the day-to-day operation of the petitioner's home care facilities andlor 
directly supervise the caregivers on a regular basis in order for the facilities to remain operational and in 
compliance with regulatory requirements. 
Therefore, the director appropriately concluded that the petitioner does not yet have a supporting staff who 
could relieve the beneficiary from performing primarily operational tasks associated with operating two 
elderly care facilities. An employee who "primarily" performs the tasks necessary to produce a product or to 
WAC06 11451543 
Page 10 
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 (requiring that one "primarily" perform the enumerated managerial 
or executive duties); see also Matter of Church Scientology Int 'I, 19 I&N Dec. 593, 604 (Cornm. 1988). 
In sum, the petitioner has not demonstrated that the beneficiary, as a personnel manager, will be primarily 
supervising a subordinate staff of professional, managerial, or supervisory personnel. See section 
101(a)(44)(A)(ii) of the Act. Furthermore, the petitioner has not established that it employs a staff that will 
relieve the beneficiary from performing non-qualifying duties so that the beneficiary may primarily engage in 
managerial duties. Further, regardless of the beneficiary's position title, the record is not persuasive that the 
beneficiary will function at a senior level within an organizational hierarchy. Even though the enterprise is in 
a preliminary stage of organizational development, the petitioner is not relieved from meeting the statutory 
requirements. Based on the limited documentation furnished, it cannot be found that the beneficiary will be 
employed primarily in a qualifying managerial or executive capacity. 
Although the petitioner cites delays in obtaining the licenses needed to operate its facilities as a reason for its 
delay in growth during the first year of operations, and indicates that the company expects to grow and hire 
additional employees in the future, the regulation at 8 C.F.R. 214.2(1)(3)(v)(C) allows the intended United 
States operation one year within the date of approval of the petition to support an executive or managerial 
position. There is no provision in CIS regulations that allows for an extension of this one-year period. If the 
business is not sufficiently operational after one year, the petitioner is ineligble by regulation for an 
extension. In the instant matter, the petitioner has not reached the point that it can employ the beneficiary in a 
predominantly managerial or executive position. Accordingly, the appeal will be dismissed. 
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. 
ORDER: The appeal is dismissed.