dismissed L-1A Case: Electrical Engineering

I1.S. Drpartnient of Ilomeland Security 
20 \l.lass. :\\c.. N.W.. Rm. 3000 
Ib'ahhington. I)C' 20520 
identifying data deleted to 
prevent clearly unwarranted 
invasion of personal p~vacy 
U.S. Citizenship 
and Immigration 
Services 
JUN 0 5 2007 
FILE: SRC 02 149 53394 Office: TEXAS SERVICE CENTER Date: 
PETITION: 
 Petition for a Nonimmigrant Worker Pursuant to Section 10 1 (a)(] 5)(L) of the Immigration 
and Nationality Act, 8 U.S.C. Q: 1 101 (a)(] 5)(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. 
17' / 
Administrative Appeals Office 
SRC 02 149 53394 
Page 2 
DISCUSSION: The Director, Texas 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 the instant nonimmigrant petition seeking to employ the beneficiary as an L-IA 
nonimmigrant intracompany transferee pursuant to section 10 1 (a)(15)(L) of the Immigration and Nationality 
Act (the Act), 8 U.S.C. 9 1 101(a)(15)(L). The petitioner is a corporation organized in Nairobi that claims to 
be an affiliate of the United States entity, which is organized under the laws of the State of Georgia, and is 
operating as an electrical engineering consultant. The petitioner seeks to extend the beneficiary's employment 
as the executive director of the United States organization for a three-year period. 
The director denied the petition concluding that the petitioner had not established that the beneficiary would 
be employed by the United States entity in a primarily managerial or executive capacity. 
On appeal, counsel for the petitioner contends that United States Citizenship and Immigration Services 
(USCIS) erroneously denied the requested petition extension based on the incorrect finding that the 
beneficiary would not be employed in a primarily executive capacity. Counsel submits a brief and additional 
evidence in support of the appeal. 
To establish L-1 eligibility, the petitioner must meet the criteria outlined in section 101(a)(15)(L) of the 
Immigration and Nationality Act (the Act), 8 U.S.C. 5 1101(a)(15)(L). 
 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. 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. 9 214.2(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 
services in the United States; however, the work in the United States need not be the 
same work which the alien performed abroad. 
SRC 02 149 53394 
Page 3 
In accordance with the regulation at 8 C.F.R. 9 214.2(1)(14)(ii), if a petitioner seeks to extend a visa petition 
which involved the opening of a new office, the Form 1-129 shall be accompanied by the following: 
(A) 
 Evidence that the United States and foreign entities are sill 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 (I)(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 issue in the instant proceeding is whether the beneficiary would 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. § 1 101(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; 
(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) 
 Has the authority to hire and fire or recommend those as well as other personnel actions 
(such as promotion and leave authorization) if another employee or other employees are directly 
supervised; 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 101(a)(44)(B) of the Act, 8 U.S.C. fj 1 101(a)(44)(B), provides: 
SRC 02 149 53394 
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The term "executive capacity" means 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 Form 1-129 on April 15, 2002 identifying the beneficiary as occupying the position of 
executive director, during which he would "design, layout and implement electrical engineering projects in 
commercial and residential buildings." The petitioner did not submit additional evidence with its initial filing. 
In a notice dated October 2, 2002, the director requested that the petitioner submit: a detailed description of 
the beneficiary's job duties; a list of the petitioner's employees and their job titles; and quarterly wage 
statements evidencing wages paid to its employees. The director noted that although the petitioner indicated a 
staff of twelve employees of the Form I- 129, the aggregate amount in compensation paid to employees by the 
petitioner in 2001 totaled $44,000. 
Counsel for the petitioner responded in an undated letter, in which she clarified the United States entity's 
staffing on the filing date as consisting of the beneficiary, as well as a designer-architect and an "auto-cad 
operator and systems designer." Counsel explained that the original number of twelve employees initially 
stated on the Form 1-129 pertained to the foreign entity's staffing levels. With respect to the beneficiary's 
proposed job duties, counsel stated that the beneficiary would: 
Direct the activities of Arvind Patel, architect and Harvinder Kaura, who uses computer 
assisted design and equipment to prepare project designs and plans. Coordinate projects 
and assign job duties and evaluate [the] extent to which performance meets company 
standards. Research, plan, design and administer electrical projects for clients, applying 
knowledge of electrical systems, design, layout and materials. Perform feasibility and cost 
containment studies on existing electrical systems and prepare written reports on findings. 
Analyze operating procedures to devise [the] most efficient methods of accomplishing 
work and conduct meetings with staff to implement [the] same. Negotiate contracts with 
existing and prospective clients. Coordinate employee activities in carrying out project 
design. Establish and maintain relationships with existing and potential clients. Direct the 
management staff of dry-cleaning operations facility. Direct, administer and control 
operations of [the petitioning entity] and Fabricare Cleaners. Determine standards and rates 
of production in accordance with company policy, type of equipment and work load. 
Observe and analyze work progress and transfer or hire new employees for increased 
production. Review accounting records to determine cost levels of operation. 
SRC 02 149 53394 
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Counsel further explained that since the filing of the nonimmigrant petition, the United States company had 
acquired a dry-cleaning business, in which it employed an additional five workers. 
Counsel submitted copies of the United States organization's June and September 2002 quarterly wage 
reports, and a printout of wages paid to seven employees. 
In her December 3 1, 2002 decision, the director concluded that the petitioner had not established that the 
beneficiary would be employed by the United States entity in a primarily managerial or executive capacity. 
The director noted the petitioner's three-person staff on the filing date, and explained that because the dry- 
cleaning business was not purchased until after the April 15, 2002 filing, the beneficiary's responsibilities 
with respect to the new business would not be considered in the instant analysis. The director stated that the 
petitioner failed to establish that the beneficiary would manage or direct "the management of a department, 
subdivision, function, or component of the organization," or that "the beneficiary will be involved in the 
supervision and control of the work of other supervisory, professional or managerial employees who would 
relieve him from performing the services of the business." The director concluded that the majority of the 
beneficiary's time would be spent performing non-executive, day-to-day operations of the business. 
Consequently, the director denied the petition. 
Counsel for the petitioner filed an appeal on January 3 1, 2003, challenging USCIS' denial of the petition. In a 
subsequently submitted appellate brief, counsel contends that the director improperly disregarded the dry- 
cleaning business in analyzing the beneficiary's employment capacity, claiming that at the time of filing, the 
United States organization "was the equitable owner [of the dry-cleaning business], if not [the] legal [owner]." 
Counsel submits a December 20, 2001 sales contract for the dry-cleaning business, but explains that the 
closing for the purchase of the dry cleaners did not occur until May 27, 2002 because of complications in 
transferring the existing lease to the United States organization. Counsel claims that based upon the 
December 2001 negotiations and contractual agreement to purchase the business, as well as the payment of 
$45,000 to the seller prior to closing, USCIS should have considered the beneficiary's role in the operation of 
the dry-cleaning business in its analysis of whether the beneficiary would be employed as a manager or 
executive. 
Counsel further states that even if the dry-cleaning business is not considered, the beneficiary, as the 
executive director of the United States consulting company, would be employed in a primarily qualifying 
capacity. Counsel states: 
[Tlhe beneficiary is required to direct the management of the organization; establishes the 
goals and policies of the organization; exercises wide latitude in discretionary decision- 
making and is subject to no supervision. The nature of the services which the beneficiary 
provides are complex and require analysis, design and implementation of projects 
completion of which requires [sic] advanced academic training and knowledge applied on a 
professional level. The beneficiary alone is responsible for the organization, goals, 
objectives, policies, procedures and growth of the professional consulting business. The 
beneficiary alone made the decision to invest and expand into other areas due to the 
characteristically slow rate of growth in professional consulting firms. Further, contrary to 
the findings of the Director, the two employees over which the beneficiary exercises sole 
authority and control, an architect and systems information analyst, are professionals 
engaged in the performance of duties of a professional nature, utilizing advanced level 
SRC 02 149 53394 
Page 6 
knowledge and requiring formal academic training usually associated with attainment of a 
baccalaureate degree or higher. 
Counsel contends that the director's decision is based solely on the petitioner's staffing levels, without taking 
into account its reasonable needs and stage of development. Counsel states that "the design, analysis and 
implementation of electrical engineering projects requires only the services and expertise of an architect, 
electrical engineer and auto-cad operator/systems analyst," and contends that the number of workers 
employed by the United States organization is reasonable considering the nature of its business, the length of 
its operations and its size. 
Counsel submits on appeal documentation related to the purchase of the dry-cleaning business. The AAO 
notes that the director properly excluded the beneficiary's role in the operation of the dry-cleaning business 
from the instant analysis of the beneficiary's employment capacity. Even if the United States organization 
was deemed to have purchased the business in December 2001, the record demonstrates that it was not 
operating until one month after the filing of the instant petition. 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. Comm. 1978); Matter of Katigbak, 14 I&N 
Dec. 45, 49 (Comm. 1971). The petitioner must establish eligibility at the time of filing the nonimmigrant 
visa petition. As a result, the AAO will not consider the beneficiary's purported management of the dry- 
cleaning staff in the analysis of the beneficiary's employment capacity in the United States. 
Upon review, the petitioner has not established that the beneficiary would be employed by the United States 
organization in a primarily managerial or executive capacity. 
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. 9 214.2(1)(3)(ii). 
Whether the beneficiary is a managerial or executive employee turns on whether the petitioner has sustained 
its burden of proving that his duties are "primarily" managerial or executive. See sections 10l(a)(44)(A) and 
(B) of the Act. Here, while the job description initially offered by the petitioner suggests that the beneficiary 
would spend at least a portion of his time performing managerial or executive job duties, it also indicates that 
the beneficiary would perform such non-qualifying tasks as "[r]esearch[ing], plan[ning], design[ing] and 
administer[ing] electrical projects for clients," and negotiating contracts. As the petitioner did not document 
the amount of time the beneficiary would spend on each particular task, it is not clear what proportion of the 
beneficiary's duties would be managerial functions and what proportion would be non-managerial. This 
documentation is particularly relevant considering the beneficiary's role in researching and designing 
customers' electrical projects, which essentially comprises the services offered by the United States 
corporation. Based on counsel's appellate brief, the beneficiary would also personally devise the company's 
marketing plans and develop its sales strategies, tasks that are not typically deemed to be primarily 
managerial or executive in nature. See 33 101(a)(44)(A) and (B) of the Act. 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 "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 (Comm. 1988). As a result of the limited job 
description, the AAO cannot determine whether the beneficiary's proposed employment would be primarily 
SRC 02 149 53394 
Page 7 
managerial or executive in nature, or whether he would be responsible for primarily performing the 
operational services offered by the business in the United States. 
The additional job description submitted on appeal is equally limited in distinguishing the beneficiary as a 
manager or executive of the United States entity. The AAO notes that counsel's statements as to the 
beneficiary's responsibilities of "direct[ing] the management of the organization," establishing its goals and 
policies, and exercising wide latitude in discretionary decision-making are not representative of the 
beneficiary's claimed qualifying employment, as they are mere restatements of the statutory definition of 
"executive capacity." See 8 101(a)(44)(B) of the Act. 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. 2d 41 (2d. Cir. 1990); Avyr Associates, Inc. v. Meissner, 1997 WL 188942 at *5 
(S.D.N.Y.). 
Counsel further claims on appeal that the beneficiary is eligible for classification as a manager or executive 
based on his supervision of professional 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 8 101(a)(44)(A)(ii) of the Act. 
The record contains only the job titles of the beneficiary's two subordinate workers. As noted previously, the 
petitioner did not provide a description of the job duties associated with each position. Counsel claims only 
that the two employees "[are] professionals engaged in the performance of duties of a professional nature, 
utilizing advanced level knowledge and requiring formal academic training usually associated with attainment 
of a baccalaureate degree or higher." Counsel did not submit evidence establishing that these employees 
possess the requisite educational background for their respective positions, such that they would be classified 
as professionals. Without documentary evidence to support the claim, the assertions of counsel will not 
satisfy the petitioner's burden of proof. The unsupported assertions of counsel do not constitute evidence. 
Matter of Obaigbena, 19 I&N Dec. 533, 534 (BIA 1988); Matter of Laureano, 19 I&N Dec. 1 (BIA 1983); 
Matter of Ramirez-Sanchez, 17 I&N Dec. 503, 506 (BIA 1980). 
Moreover, the record fails to support counsel's additional claim that the reasonable needs of the organization 
would be met through the employment of the beneficiary, a designer-architect, and an auto-cad 
operator/systems analyst. Counsel correctly observes that a company's size alone, without taking into account 
the reasonable needs of the organization, may not be the determining factor in denying a visa to a 
multinational manager or executive. See tj 101(a)(44)(C) of the Act, 8 U.S.C. fj 1 101(a)(44)(C). However, 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). 
Here, counsel acknowledged in her response to the director's request for evidence the three-person staff 
maintained by the United States company on the filing date. The AAO notes, however, that based on the 
petitioner's third quarter wage report and employee list, the employment of the company's designerlarchitect 
was terminated sometime during the two months following the date of filing. As noted previously, the 
beneficiary would be responsible for performing non-managerial and non-executive functions of the United 
States business, including its sales, marketing, and negotiations, as well as the actual analysis, development, 
SRC 02 149 53394 
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and implementation of the recommended engineering plans. The petitioner has not defined the job duties and 
responsibilities of the other two employees with respect to providing the consulting services of the United 
States company. Counsel provides only an unsubstantiated statement that the nature of the United States 
business "requires only the services and expertise of an architect, electrical engineer, and auto-cadlsystems 
analyst." Based on this statement and the record as a whole, it appears that the beneficiary's services as the 
company's electrical engineer are necessary to meet the reasonable needs of the United States organization as 
an engineering consulting firm. The record, as presently constituted, does not demonstrate that the 
beneficiary would be relieved from performing the company's non-qualifying operational functions, or that 
the two-person lower-level staff would be sufficient to support the beneficiary in a primarily managerial or 
executive capacity. The unsupported assertions of counsel do not constitute evidence. Matter of Obaigbena, 
19 I&N Dec. at 534. 
Regardless, the reasonable needs of the petitioner serve only as a factor in evaluating the lack of staff in the 
context of reviewing the claimed managerial or executive duties. The petitioner must still establish that the 
beneficiary is to be employed in the United States in a primarily managerial or executive capacity, pursuant to 
sections 101(a)(44)(A) and (B) or the Act. As discussed above, the petitioner has not established this 
essential element of eligibility. 
Under the present petition extension, the petitioner is obligated to demonstrate that following the beneficiary's 
initial one-year period of employment in the United States, the United States organization would support the 
beneficiary in a primarily managerial or executive position. See 8 C.F.R. 3 214.2(1)(3)(v)(C). There is no 
provision in CIS regulations that allows for an extension of this one-year period. Based on the current record, 
the petitioner has not demonstrated its ability to employ the beneficiary in a primarily managerial or executive 
capacity. Accordingly, the appeal will be dismissed. 
Beyond the decision of the director, an additional issue is whether the United States organization has been 
doing business for at least during the year prior to the instant filing as required in the regulation at 8 C.F.R. 
3 214.2(1)(14)(ii)(B). Notwithstanding the incorporation of the United States company on January 18, 2000, 
it appears that the corporation did not begin doing business until sometime during the year 2001. The United 
States company's December 3 1,2001 balance sheet and appended general ledger identifies the company's first 
sale as occurring on May 3 1, 2001, or less than eleven months prior to the instant filing. The petitioner did 
not submit copies of contracts or invoices for services rendered during 2001. Similarly, while the record 
contains a copy of the company's annual business and occupational license, it pertains to the period beginning 
on January 1, 2002. As a result of the limited documentary evidence offered for review, the AAO cannot 
whether determine whether the United States corporation was doing business for the requisite one-year period 
prior to the present filing. For this additional reason, the petition will be denied. 
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), afyd. 345 F.3d 683 
(9th Cir. 2003); see also 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 petition will be denied for the above stated reasons, with each considered as an independent and 
alternative basis for denial. In visa petition proceedings, the burden of proving eligibility for the benefit 
SRC 02 149 53394 
Page 9 
sought remains entirely with the petitioner. Section 291 of the Act, 8 U.S.C. $ 1361. Here, that burden has 
not been met. 
ORDER: The appeal is dismissed.