dismissed L-1A Case: Electronics

identifying data deleted to 
PnWQt clearly unwananted 
bv*o.a of personal privacy 
PUBLIC COPY 
U.S. Department of .Homeland Security 
20 Mass. Ave., N.W., Rm. A3000 
Washington, DC 20529 
- 
U. S. Citizenship 
and Immigration 
Services 
% 1 
'File: WAC-04928-50145 Office: CALIFORNIA SERVICE CENTER Date: 0 3 2006 
Petition: Petition for a Nonimmigmnt Worker Pursuant to Section 10 1 (a)(15)(L) of the Immigration 
and Nationality Act, 8 U.S.C. § 1 101 (a)(15)(L) 
.", , . 
IN BEHALF OF PETITIONER: . . 
INSTRUCTIONS : 
This is the decision of the ~dminTstrative 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. 
P. Wiemann, Chief 
drninistrative Appeals Office 
WAC-04-028-50 145 
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-1A 
nonimmigrant intracompany transferee pursuant to section 10 1 (a)(15)(L) of the Immigration and Nationality 
Act (the Act), 8 U.S.C. 8 1101(a)(15)(L). The petitioner is a corporation organized under the laws of the state 
of California and is engaged in the import and distribution of electronics. The petitioner claims that it is the 
subsidiary of Zuhai Luck Development, Ltd., located in Guangdong, China. The beneficiary was initially 
granted a one-year period of stay to open a new office in the United States and the petitioner now seeks to 
extend the beneficiary's stay. 
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 for the petitioner asserts that the director's 
conclusions were based on speculation, lacked analysis that the beneficiary has been acting in a primarily 
managerial and executive capacity. However, the petitioner did not submit any additional evidence, cite any 
legal authority for its assertions, or articulate how the evidence in the record supported its assertions. 
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. 8 214.2(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 
WAC-04-028-501 45 
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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. 
The regulation at 8 C.F.R. 4 214.2(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)(~) 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 management or executive 
capacity; and 
(E) Evidence of the financial status of the United States operation. 
The first 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. 4 1101(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 
WAC-04-028-50 145 
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(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. § 1 101(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. 
In the initial petition, the petitioner described the beneficiary's job duties as follows: 
[The beneficiary] has absolute and discretionary authority and control of the entire domestic 
and international business operations as well as the authority to hire and fire supervisory 
personnel. He was tasked to direct and coordinate the overall business operations; prepare, 
plan and supervise day-to-day business and sales operations of the subsidiary; render work 
instructions and assignments to subordiliates; participate in the management of personnel 
matters including hiring and firing of employees of the subsidiary; prepare periodic sales 
reports showing sales volume and potential sales, report to the parent company regarding the 
business operations and other related matters in a timely fashion. 
On January 13,2004, the director requested additional evidence. Specifically, the director requested evidence 
of a qualifying relationship, evidence that the beneficiary would be acting in an executive or managerial 
capacity, including a list of employees and their duties, an organizational chart, a payroll summary, Forms 
DE-6 quarterly wage reports, as well as evidence of doing business such as invoices and bills of lading. 
In response, the petitioner submitted an organizational chart, list of employees, wage reports, payroll 
summaries and wage tax documentation, invoices, bills of lading and packing lists. 
On July 9, 2004, the director denied the petition. The director determined that the petitioner had not 
established the beneficiary would be employed primarily in a managerial or executive capacity. 
On appeal, counsel for the petitioner asserts that the director failed acknowledge the facts of the case and that 
the petitioner established eligibility. 
WAC-04-028-50145 
Page 5 
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. 
2142(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. The petitioner must specifically state whether the beneficiary is primarily employed in a 
managerial or executive capacity. A petitioner cannot claim that some of the duties of the position entail 
executive responsibilities, while other duties are managerial. A beneficiary may not claim to be employed as 
a hybrid "executive/manager~' and rely on partial sections of the two statutory definitions. 
On appeal counsel for petitioner states that the director's decision did not properly regard what it considers to 
be facts. However, upon review of the record the director's exercise of discretion was proper because the 
evidence submitted does not support that the petitioner's assertions rise above mere characterization. The 
AAO would note that the petitioner has the burden of establishing that the beneficiary was actually employed 
primarily in a executive capacity through the submission of probative documentary evidence; merely alleging 
such is not sufficient. Going on record without supporting documentary evidence is not sufficient for 
purposes of meeting the burden of proof in these proceedings. Matter of SofJici, 22 I&N Dec. 158, 165 
(Comm. 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm. 1972)). It is 
not persuasive to argue that a director must cite authority for a proper exercise of discretion. The AAO would 
note that it is the unsupported statements of counsel on appeal or in a motion which are not evidence and 
which are not entitled to any evidentiary weight. See INS v. Phinpathya, 464 U.S. 183, 188-89 n.6 (1984); 
Matter of Ramirez-Sanchez, 1 7 I&N Dec. 503 (BIA 1 980). The petitioner bears the burden of establishing 
eligibility in these proceedings, and that burden has not been met. 
The evidence in the record does not support that the beneficiary is actually employed in an executive capacity. 
As indicated by the director the salaries listed for the employees indicate that they are not receiving a full time 
salary, thus undermining any assertion that they are operating in a supervisory, managerial or professional 
capacity. It is well within the director's discretion to make a reasonable inference that $10,000 in annual 
salary is not indicative of a full time employee, much less a managerial, supervisory or professional 
employee. The petitioner has the burden establishing eligibility and in this case the evidence submitted by the 
petitioner to support its assertions is not persuasive. Although the beneficiary is not required to supervise 
personnel, if it is claimed that her duties involve supervising employees, the petitioner must establish that the 
subordinate employees are supervisory, professional, or managerial. See 5 101(a)(44)(A)(ii) of the Act. In 
this case the petitioner has asserted that the beneficiary is an executive. One element of an executive capacity 
is directing the management of the organization. Thus the record must indicate that the subordinate 
employees are supervisory, professional or managerial. As stated above, mere assertions, such as position 
titles and artificially inflated organizational tiers are not sufficient. 
Counsel for petitioner repeatedly asserts that the duties listed for the beneficiary and the other employees 
establish eligibility, however, there is no evidence in the record that these are the actual duties of the 
beneficiaries and the employees listed. The record does not contain evidence of personnel actions, policy or 
goal setting, no evidence of clientele accumulation, no evidence of revenue generating contracts, reports to 
management or coordination of inventory or any other documentary evidence which might normally be 
generated in the normal course of business operations. The petitioner did not submit any evidence to 
WAC-04-028-50 145 
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demonstrate that its assertions were more than mere characterizations. The petitioner submitted a summary of 
the wages for each of the employees, but in response to the director's RFE submitted W-2 wage forms that 
contradict these assertions. See IRS Forms W-2, attached hereto as petitioner's response to RFE exhibit; 
contra Employee summary, attached hereto as petitioner's initial exhibit. Without corroborating evidence 
such as work product for these employees the petitioner's assertions are not persuasive. 
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 must establish eligibility at the time of filing the 
nonimmigrant visa petition. Furthermore, 8 C.F.R. 8 214.2(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 ineligible 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 petitioner has not established that the beneficiary has been or will be employed in a 
primarily or managerial capacity, as required by 8 C.F.R. 8 214.2(1)(3). 
The second issue in this proceeding is whether the petitioner has been conducting business for the prior year. 
While not directly addressed by the director, the minimal documentation of the petitioner's business 
operations raises the issue of whether the petitioner is a qualifying organization doing business in the United 
States. The term "doing business" is defined in the regulations as "the regular, systematic, and continuous 
provision of goods andlor services by a qualifying organization and does not include the mere presence of an 
agent or office of the qualifying organization in the United States and abroad." 8 C.F.R. 8 2 14.2(1)(l)(ii). 
In this case the petitioner has admitted that the president of the organization was not present for four months 
during the initial visa period. The petitioner submitted copies of invoices and bills of lading, but upon 
inspection these invoices are almost exclusively dated for the month of March, 2004. This date is subsequent 
to the period for which eligibility must be established. The fact that they are all for a period after the filing of 
the petition renders them irrelevant to demonstrating eligibility at the time of filing. The petitioner must 
establish eligibility at the time of filing the nonimrnigrant 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). 
Thus, it is not evident fi-om the record that the petitioner has been conducting business. 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), afd. 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). 
, WAC-04-028-50 145 
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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 
sought remains entirely with the petitioner. Section 291 of the Act, 8 U.S.C. $ 1361. Here, that burden has ' 
not been met. 
1 
ORDER: The appeal is dismissed and the petition hereby denied.