dismissed L-1A Case: Embroidery

U.S. Department of Homeland Security 
20 Mass Ave , N W , Rm 43042 
Wash~ngton, DC 20529 
U. S. Citizenship 
and Immigration 
Services 
FILE: WAC 03 1 17 50965 Office: CALIFORNIA SERVICE CENTER  date:^ Ee 1 8 2W5 
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 10 1 (a)(15)(L) of the Immigration 
and Nationality Act, 8 U.S.C. $ 1 101(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. 
'r - 7 ' 
c* - 
ert P. Wlemann, Director 
Administrative Appeals Office 
WAC 03 11 7 50965 
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 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 sole proprietorship located in California that is 
operating an embroidery business. The petitioner claims that it is an affiliate of the beneficiary's foreign 
employer, located in Budapest, Hungary. The petitioner now seeks to employ the beneficiary for an 
additional two years. 
The director denied the petition concluding that the petitioner had failed to demonstrate that the beneficiary 
would be employed by the United States entity in a primarily managerial or executive capacity. 
Counsel for the petitioner subsequently filed an appeal. The director declined to treat the appeal as a motion 
and forwarded it to the AAO for review. On appeal, counsel claims that the petitioner provided sufficient 
evidence establishing that the beneficiary's job duties are primarily managerial or executive. Counsel also 
contends "it is clear that [the beneficiary] directs a major function of the organization, which in essence is 
running every aspect of its California affiliate." Counsel submits a brief in support of the appeal. 
To establish L-l eligibility, the petitioner must meet the criteria outlined in section 101(a)(15)(L) of the Act, 8 
U.S.C. 3 1 10 1 (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. 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 hidher 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 issue in the instant proceeding is whether the beneficiary would be employed by the United States entity 
in a primarily managerial or executive capacity. 
WAC 03 117 50965 
Page 3 
Section 10l(a)(44)(A) of the Act, 8 U.S.C. 3 1101(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, hnctions at a senior level within the 
organizational hierarchy or with respect to the hnction 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. tj 1 10 l(a)(44)(B), provides: 
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 nonimmigrant petition on February 27, 2003 noting that it employed two workers, 
including the beneficiary as president, and "outside staff." In a letter appended to the petition, dated February 
21,2002, the petitioner provided the following description of the beneficiary's position as president: 
The position for [the petitioning organization] will involves [sic] executive direction of the 
operations here including policy making, establishing goals, finance, accounting, 
administration, financial analysis, marketing[,] contract negotiations, provider relations, and 
ongoing international reporting. Primary duties will include management and expansion of 
WAC 03 1 17 50965 
Page 4 
employment opportunities of the required staff of workers in the United States to expand and 
develop the enterprise here. We are happy to report that the company is finally growing and 
has been profitable in the USA, after a very difficult start following the acquisition. The 
business environment is now improving, and we anticipate growth and new employment 
creation when the new business cycle has taken hold.' 
The petitioner hrther explained that it anticipated hiring two additional workers during the next year with 
"intentions . . . to develop a full marketing operation for sales and necessary support to the Threadcraft 
product line as well as the introduction of new concepts from [the beneficiary]." 
The director issued a request for evidence dated April 7, 2003. In his notice, the director asked that the 
petitioner submit the following evidence pertaining to the beneficiary's employment in the United States: (1) a 
list of the workers employed by the United States organization; (2) the petitioner's organizational chart 
describing its managerial hierarchy and clearly identifying the beneficiary's position in relation to all other 
employees in the company; (3) a detailed description of the beneficiary's job duties in the petitioning 
company, including a description of the educational and employment qualifications required for the position 
of president; and (4) a brief description of the educational level, salary, and tasks performed by the 
beneficiary's subordinate employees. 
Counsel responded in a letter dated June 26, 2003. In his letter, counsel explained that the petitioner had been 
forced to reduce its staff due to economic conditions and the lack of available workers in the United States. 
Counsel noted that Citizenship and Immigration Services (CIS), however, should take into account the 
petitioner's contribution to its community, and the "realities of business and times of expansion" when 
determining whether the beneficiary is employed in a qualifying capacity. Counsel also stated that case law 
permits a sole proprietor to qualify as an L-1A owner and executive. Counsel submitted an organizational 
chart for the petitioning organization reflecting the beneficiary in the position of "owner/president" with two 
subordinate employees identified only as "EAD + EOS L2" and seamstress. A notation on the chart 
referenced an accompanying letter from the petitioner for information regarding the seamstress' employment. 
In this separate letter from the petitioner, dated June 18, 2003, the petitioner acknowledged the seamstress' 
employment, explaining only that she would operate the embroidery machines. 
In a decision dated July 14, 2003, the director determined that the petitioner had not demonstrated that the 
beneficiary would be employed in the United States in a qualifying capacity. The director acknowledged the 
petitioner's organizational chart, yet noted that it did not include a description of the job duties performed by 
the beneficiary's two subordinate workers. The director noted that the record did not contain a comprehensive 
description of managerial or executive duties that the beneficiary would perform in his position as president." 
The director stated that the beneficiary would not be managing or directing the management of a function, 
department, subdivision or component of the petitioning organization, and would not be functioning at a 
senior level in the organization's personnel hierarchy. 'The director also stated that the beneficiary would not 
manage a subordinate staff of professional, managerial or supervisory personnel who would relieve the 
' Although the petitioner's letter is dated February 21, 2002, one year prior to the filing of the instant petition, 
it appears that this was a typographical error as the letter references the instant petition extension. 
2 While the director included in his decision an outline of five tasks to be performed by the beneficiary as 
president, these job duties actually relate to the beneficiary's prior employment abroad and are listed as such 
in a letter from the foreign entity dated February 1, 2000. 
WAC 03 1 17 50965 
Page 5 
beneficiary from performing non-qualifying operations of the business. Consequently, the director denied the 
petition. 
Counsel filed an appeal on August 8, 2003, stating that the beneficiary's duties are executive and managerial 
in nature, and contending that the beneficiary directs a major function of the organization. In a letter 
submitted with the appeal, dated August 7, 2003, counsel states: 
It is submitted that sufficient evidence has been produced to support the position that [the 
beneficiary's] duties are primarily executive and managerial. The evidence submitted clearly 
demonstrates that he is and has been responsible for the establishment of company policies; 
that he has and continues to provide executive direction and general management; that he has 
been and continues to be responsible for product development and for marketing of the 
company's products. Further, it is clear that [the beneficiary] directs a major function of the 
organization, which in essence is running every aspect of its California affiliate. Based upon 
his vast experience gained in running the Hungarian business for approximately nine years 
before coming to California to run its branch-affiliate business, [the beneficiary] clearly has 
the special knowledge of the company's products and business operations. 
Counsel again explains that while the petitioner has experienced a decrease in staffing levels due to economic 
conditions, the beneficiary, as the sole proprietor of the petitioning organization, may qualify as an L-1A 
owner and executive. Counsel also states that CIS should "be considerate of the realities of business and 
times of expansion or contraction in adjudicating this business related petition." 
On review, the petitioner has not demonstrated 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. $ 214.2(1)(3)(ii). As required in the regulations, the petitioner must submit a detailed description of the 
executive or managerial services to be performed by the beneficiary. Id. 
The record does not contain a sufficient description of the beneficiary's claimed managerial and executive 
employment. The petitioner's vague description in its February 200[3] letter that the beneficiary would be 
responsible for directing the company's finance, accounting, administration, financial analysis, marketing, 
contract negotiations, and provider relations fails to accurately detail any qualifying job duties related to these 
functions. The actual duties themselves reveal the true nature of the employment. Fedin Bros. Co., Ltd. v. 
Sava, 724 F. Supp. 1103, 1108 (E.D.N.Y. 1989), aff'd, 905 F.2d 41 (2d. Cir. 1990). Additionally, the 
petitioner's blanket claim that the beneficiary's responsibilities would "involve executive direction of the 
operations here including policy making, establishing goals . . ." is merely a restatement of a portion of the 
regulatory definition of executive capacity, and is not sufficient for establishing employment in a qualifying 
capacity. See 8 C.F.R. 214.2(1)(l)(ii)(C). Specifics are clearly an important indication of whether a 
beneficiary's duties are primarily executive or managerial in nature, otherwise meeting the definitions would 
simply be a matter of reiterating the regulations. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1103 (E.D.N.Y. 
1989), aff'd, 905 F.2d 41 (2d. Cir. 1990). Furthermore, although specifically requested by the director, 
counsel failed to submit a detailed statement of the tasks to be performed by the beneficiary. The petitioner's 
failure to submit requested evidence that precludes a material line of inquiry shall be grounds for denying the 
petition. 8 C.F.R. 5 103.2(b)(14). 
WAC 03 1 17 50965 
Page 6 
The petitioner's organizational chart also fails to support the petitioner's claim that the beneficiary would be 
employed in a primarily managerial or executive capacity. Other than identifying the beneficiary and two 
additional workers on its organizational chart, the petitioner fails to indicate how the petitioner employs a 
staff sufficient to support the beneficiary as a manager or an executive. Again, although requested by the 
director, the petitioner did not submit a description of the job duties performed by the beneficiary's 
subordinate workers, and in the case of one worker, fails to even provide her job title. While the petitioner 
references its June 18, 2003 letter as containing documentation of the seamstress' position, the letter merely 
indicates that the petitioner was able to locate a good candidate for the job of seamstress after expertencing 
difficulty filling the position. Moreover, the record does not indicate whether the seamstress is presently 
working for the petitioner, or, more importantly, was employed at the time of filing the petition. See Matter 
of Michelin Tire Corp., 17 I&N Dec. 248 (Reg. Comm. 1978). Furthermore, the petitioner indicated on its 
nonimmigrant petition that it employed two employees plus "outside staff," yet never explained or identified 
the use of other workers not directly employed by the petitioning organization. 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). The limited 
information regarding the petitioner's personnel prevents a finding that the petitioner employs a staff 
sufficient to support the beneficiary as a manager or an executive. 
Also, despite counsel's claim on appeal that CIS should consider the "realities of business" and the time 
needed for expansion, counsel fails to recognize the requirement that the petitioner establish eligibility at the 
time of filing the petition. A visa petition may not be approved based on speculation of future eligibility or 
after the petitioner becomes eligible under a new set of facts. See Mutter of Michelin Tire Corp., 17 I&N 
Dec. 248 (Reg. Comm. 1978); Matter of Kutigbak, 14 I&N Dec. 45, 49 (Comm. 1971). The petitioner 
concedes that the petitioning organization has been operating since November 1999. Therefore, the petitioner 
is expected to be sufficiently operational to support the beneficiary in the position of manager or executive. 
The petitioner has not satisfied this essential requirement. 
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 section 10 1 (a)(44)(C), 8 U.S.C. 5 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, as noted above, the petitioner fails to 
adequately describe the managerial or executive job duties to be performed by the beneficiary during his 
employment in the United States, and does not account for a staff sufficient to support the beneficiary in a 
qualifying capacity. The petitioner has failed to explain how the reasonable needs of the organization are met 
by the employment of the beneficiary, a seamstress, and a third unidentified employee. Going on record 
without supporting documentary evidence is not sufficient for purposes of meeting the burden of proof in 
these proceedings. Matter of Treasure Craft of CalEfomia, 14 I&N Dec. 190 (Reg. Comm. 1972). 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. 
WAC 03 1 17 50965 
Page 7 
Counsel's additional claim on appeal that the beneficiary is directing a major function of the business is not 
supported by the record. The term "function manager" applies generally when a beneficiary does not 
supervise or control the work of a subordinate staff but instead is primarily responsible for managing an 
"essential function" within the organization. See section 101(a)(44)(A)(ii) of the Act, 8 U.S.C. 
g 1101(a)(44)(A)(ii). If a petitioner claims that the beneficiary is managing an essential function, the 
petitioner must identify the function with specificity, articulate the essential nature of the function, and 
establish the proportion of the beneficiary's daily duties attributed to managing the essential function. In 
addition, the petitioner must provide a comprehensive and detailed description of the beneficiary's daily duties 
demonstrating that the beneficiary manages the function rather than perfoms the duties relating to the 
function. As noted previously, the record is devoid of a detailed explanation of the beneficiary's job duties, 
which is necessary to determine the employment capacity of the beneficiary. Consequently, absent additional 
evidence, the AAO cannot conclude the beneficiary would be directing a major function of the organization. 
Without documentary evidence to support the claim, the assertions of counsel will not satisfy the petitioner's 
burden of proof. The assertions of counsel do not constitute evidence. Matter of Obaigbena, 19 I&N Dec. 
533, 534 (BIA 1988); Matter OJ'Laureano, 19 I&N Dec. 1 (BIA 1983); Matter of Ramirez-Sanchez, 17 I&N 
Dec. 503,506 (BIA 1980). 
Based on the foregoing discussion, the petitioner has failed to establish that the beneficiary would be 
employed by the United States entity 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 petitioner has demonstrated the 
existence of a qualifying relationship as required in the Act at 4 IOl(a)(15)(L). As a matter of law, the 
beneficiary is ineligible for the classification sought. It is fundamental to this nonimmigrant classification 
that there be a United States entity to employ the beneficiary. In order to meet the definition of "qualifying 
organization," there must be a United States employer. See 8 C.F.R. 214.2(1)(l)(ii)(G)(2). The petition 
includes evidence, including an IRS Form 1040 with Schedule C that demonstrates that the beneficiary is 
doing business as a sole proprietorship. A sole proprietorship is a business in which one person operates the 
business in his or her personal capacity. Black's Law Dictionaly 1398 (7th Ed. 1999). Unlike a corporation, 
a sole proprietorship does not exist as an entity apart from the individual proprietor. See Matter oj" United 
Investment Group, 19 I&N Dec. 248, 250 (Comm. 1984). As in the present matter, if the petitioner is actually 
the individual beneficiary doing business as a sole proprietorship, with no authorized branch office of the 
foreign employer or separate legal entity in the United States, there is no U.S. entity to employ the beneficiary 
and therefore no qualifying organization. 
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). 
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. 3 1361. Here, that burden has not been met. Accordingly, the 
director's decision will be affirmed and the petition will be denied. 
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Page 8 
ORDER: The appeal is dismissed.