dismissed L-1A Case: Engineering Consulting

U.S. Department of Homeland Securir) 
20 Massachusetts ,\\e:. N.W.. Km, h30JZ 
Washington. UC 10529 
U.S. Citizenship 
and Immigration 
File: Office: CALlFORNlA SERVICE CENTER MAY 1 9 2005 
IN RE: Petitioner: 
Benef ciary: 
Petition: Petition for a Nonimtnigrant Worker Pursuant to Section 101(a)(l5)(1.) of the Immigratiol~ 
and Nationality Act, 8 U.S.C. 5 1 101(a)(15)(L) 
IN BEHALF OF PETITIONER: 
INSTRUCTIONS: 
'This is the decision of the Administrative Appeals Office in your case. All documents have been returned to 
the oftice that originally decided your case. Any fi~rther inquiry must be made to that office. 
&be* P. Wiemann. Director 
\ Administrative Appeals Office 
DISCUSSION: The Director, California Service Center. denied the petition for a nonlrnmigratit vlsa The 
matter is now before the Administrative Appeals Ofice (AAO) on appeal. The AAO will d~sniiss the appeal. 
The petitioner filed this nonimmigrant petition seeking to extend the employment of its Finance Officer and 
Chief Administrative Manager for International Operations as an L-IA noniinmigrant tntracompanq 
transferee pursuant to section 101(a)(15)(L) of the Immigration and Nationality Act (tlie Act), 8 U S C. 
6 1101(a)(15)(L). Thc petitioner is a corporation organized in the State of Hawaii that operates as an 
engineering consulting firm. The petitioner claims that it is the branch of ., located in 
Manila, Philippines The beneficiarj was initially approved for L-IA status in the United States. and the 
petitloner now seeks to extend the beneficiary's stal. 
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 tiled an appeal. The director declined to treat the appeal as a rnotion and 
forwarded the appeal to the AAO for review. On appeal. counsel for the petitioner asserts that thc berieficlary 
will be employed in a primarily managerial capacity. Counsel further asserts that, in the alter~iat~\e, the 
bcneficiarq is eligible for L-l status due to her employment in a speciali7cd Anowledge capacity. In support 
of these assertions. counsel submits a brief. a detalled letter from the petitioner, and addit~onal evidence. 
To establish eligibility for the Id-1 nonimmigiant visa classification. the petitioner niust meet the criteria 
outlined.in section 101(a)(I 5)(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 be~eficiarp'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 ernployer or a subsidiary or affiliate thereof in'a manigerial. .executive. or 
specialized knowledge capacity. 
The regulation at 8 C.F.R. S; 214.2(1)(3) states that an indikidual petition filed on Form 1-199 shall bc 
accompanied by: 
(i) Evidence that the petitioner and the organi~ation \vIi~cti emplo~ed or will employ tlie 
alien are qualifying organizations as defined In paragraph (I)(l)(ii)(G) of this section. 
(ii) E\ idence that the alien will bc employed in an executive, managerial. or spec~alized 
knowledge capacity. including a detailed description of the'scrvlces to be performed. 
(iii) Ek~dencc that the alien has at least one continuous year of full time eniployment 
abroad with a qualifying organintion hithin the three years preceding the filing ot 
the petitron. 
(iv) Evidence that the alien's prior year of employment abroad was in a position that \\.as 
managerial. executive or involked specialized knowledge and that the alien's prior 
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Page 3 {I 1 
education, training, and employment qualifies him/her to perform the intended 
services in the United States: however, the work in the United States need not be the 
same ~ork which the alien performed abroad. 
11 
The issue in the present matter is whether the beneficiary will be en~ployed by the United States entity in a 
primarily managerial or executive capacity. 
Section 101(a)(44)(A) of the Act, 8 U.S.C. 5 1 101(a)(44)(A), defines the term "managerial capacity" as an 
assignment within an organization in which the employee primaril) 
I 
(i) manlages the organi~ation, or a department, subdivision. function, or component of 
the organization; 
I 
(ii) supervises and controls the work of other supervisory, professional. or manager~al 
enip/oyees. or manages an essential function within the organization. or a depart~nent 
or subdivision of the organization; 
(iii) if another employee or othcr employees are directly supen~sed, has the authority to 
hire' and lire or recommend those as well as other personnel actions (such as 
Ik. 
promot~on and leave authorization), or if no other employee is directly supenised, 
fundions at a senior level within the organi~atiolial hierarchy or with respect to the 
function managed; and 
11 
(iv) eserLises discretion over the day to day operations of the activity or fiinct~on for 
which the employee has authority. A first line supervisor is not considered to be 
actlng in a managerial capacity merely by virtue of the  supervisor'^ supervisor> 
duties unless the employees superv~sed are professional. 
Sectlon I0 1 (a)(44)(B) of the Act, 8 IJ.S.C. 9 I 10 1 (a)(44)(B). defines the term "executive capacity" as an 
assignment within antorganization in which the employee priniaril-: 
(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 niah~ng: and 
(iv) receites only general supervision or direction frorti higher level executives, the board 
of directors. or stockholders of the organization. 
, In c letter filed \h~tli the Initial petition on August 8. 2003. the petitloner described the benefic~arl's joh duties 
a\ follows. 
Page 4 
[The beneficiary] will continue to serve in Honolulu for the next three years'as our Financial 
Officer and lachief Administrative Manager for International Operations. Her duties are the 
folio\+ ing activities: 
1. review all contracts for financial requirements, invoicing requirements. cash advances for 
operations, local currency conversion factors; provide docurrients for opening local (in 
country) bank accounts, and prepare estimated budgets for the profit-loss of each 
contract; 
2. Prepare, under the direction of the President, all employ~nent contracts for expatriate 
employe~s and prepare and have signed the forms for taxes, medical plans. family travel, 
etc. Forward employment contracts for signature and record the information to assure 
that elnployees are placed on proper payrolls. Reserve airline flights for employees and 
family members as necessary. purchase tickets and forward to employees andtor family 
members: 
1 
3. Prepare cash budgets and arrange bank transfers for opening cash needs of contracts 
Keep match on exchange rates to consider forward purchase or hedging of local currencq. 
if needei. due to fluctuating exchange rates; 
i 
4. Prepare invoices in U.S. dollar and local foreign currencies and review all invoices 
prepared on-site for compliance with contract and income projections. Assure receipts 
are legal and correct and in accordance with local requirements; 
5. Preparc local employee regulations for locally employed staff in each country to meet 
local customs and laws. Assure the regulations meet company policy and that benefits fit 
the costs negotiated for the contract. Assure that all regulations are folloited arid that 
etnploye$s receive benefits as required under said regulations: 
6. Prepare all accounting and bookkeeping for overseas contracts and provide project 
I 
management with copies of contract status, and brief them as required: 
7. Prepare, using in-country professional help. all required tax returns. etc; 
8. Travel to countries as needed to assist project managers: 
9. Maintain +balances in all in-country and foreign exchange bank accounts and work w~th 
accounting departments on fund transfers needed to maintain operations arid meet 
payrolls; 
10. Be available to assist management, as needed. on all contractual matters. 
Page 5 
The petitioner provided three separate organizational charts. A global chart shows that the accounting 
department. comprised of the beneficiary as accountant, internat~onal operations and a chief accountant. 
provides the accounting function for the foreign entity's international offices and international project offices, 
as well as for the petitioner. The global chart does not indicate that the beneficiary supervises subordinate 
employees or directs a department. A chart for the petitioner shows that the beneficiaj serves in the position 
of international administration/accountant under the president and vice president, and that she does not 
supervise subordinate employees or direct a department. An organizational chart for the fore~gn entity's 
Manila office presents the beneficiary as administrative officer/accountant as part of tlie 
administrative/accounting department. Though the beneficiaryf5 name appears first 111 a list of employees of 
the administrative/aycounting department, the chart does not clearly reflect whether she supervises the other 
four employees in the department. 
On August 14, 2003, the director requested additional evidence. In part, the director requested: (I) a more 
detailed description of the beneficiary's duties in the United States including an indication of the percentage of 
time in each of the' listed duties: (2) the petitioner's Hawaii State quarterly reports for the previous tho 
quarters; (3) the petitioner's payroll summary and Fonns W-2 and W-3; and (4) a more detailed organizational 
chart as follows: 
Submit a copy of the U.S. company's line and bloch organizational chart describing its 
managerlal hierarchy and staffing levels. The chart should include the current names of all 
executives, managers. supervisors. and number of employees within each department or 
subdivision., Clearly identifj tlie beneficiary's position in the chart and list emploqees 
under the bc'neficiary's supervision by name and job t~tle. Also include a brief descript~on of 
job duties, educational level, annual salarieslwages (in U.S. Ilollar equivalents) and 
immigration status (L-I, H-I B,, B-I, E-I, E-2, F-I. permanent resident. c~tilen. etc.) for 
employees under the beneficiary's supervis~on. Finally. explain the source of remuneration of 
all employees and explain if the employees are on salary, wage. or paid by comtrlission 
NOTE: rlie submitted organizational chart does not contain sufficient information stated 
above. 
In a re.sponse dated October 24, 2003, the petitioner subniined: (I) a letter from counsel that repeats the 
beneficiary's initiallq:, submitted job description as provided above; (2) evidence that the beneficiary is a 
signor on the accounts; (3) a new organizational chart for the petitioner: (4) the petitioner's payroll, 
si~mmarics fur 2000.'; 2001, and 2002: (5) the petitioner's Hawaii State quarterly reports for the first arid 
secorld quarters of 2003; and (6) a breakdo~vn of the beneficiary's duties as tbllows: 
Office/Administrative/Accounting Manager . . . 
4dministrat1velTecl1nical Support Department Rc Accounting Departmer~t 
Regular Staff 3 
Project Admin. Staff Average. 5 (Varies at various tirncs and depending on tlie 
Page 6 
size and life of the project) 
Duties incli;ded Percentape of time spent Per function 
Adrtiinistrat~e Duties (Genrrul) 30% 
Personnel administration 
Bank representation 
Assist in the preparation of proposals, both technical and financial (gather data to 
back up financial proposal such as logistical supplies arid equipment): manning and 
selection of staff for proposal use: and preparation of resumes to match the formats 
required by the prospective client. 
Recruitment of personnel for local and overseas placements for the company 
Airline and hotel bookings both foreign and local travel including car rentals. long- 
tem'housing. etc. 
Keep all project contracts, revisions, extensions, etc. and see to it that all concerned 
pr~ncipals are furnished with copies and updated on their status 
Accounting. budgeting, cash flow 
payrbll 
Procurement 
Financial statements 
Accounts receivable and payables 
E~patriate staff per diem and travel arrangements including visa? and clearances 
(arrtvals and departures) 
Arrange for expatriate staff (and dependents) short- and long-term accommodations 
(house or condo rentals) and transportation; 
Recruit and conduct orientation of project adrntnistrative personnel, from 
administrative officer to drivers and utility personnel. Prepare their contracts of 
employment; and issue termtnatton of employment upon complettori of the projects. 
Assist In the recruitment of technical staff, set up rnterviews and prepare contract of 
employment. 
Check billtngs/invoices prepared by the project accountants; coordinate with the 
projects' administrative officers/accountants with rcgard to proper costing of staff 
ttmc charges and costs for billing to client; 
Assist tn the set up of project office by doing the procurement of vehicles. office 
equipment. furniture and other logistical sitppltes for project offices' use; 
Monitor contract costs for full optimization of all budgeted project costs: 
I 
Liaison with local government agencies and clients for contract extension and re- 
alignment of budget costs and collection follou up. 
Contract closure (final billing and adjustments) 
Document the turn over of all project-funded equipment and other materials to the 
client upon completion or termination of the contract 
Coordinate filing of taxes and duties 
On various projects, ,especially with the U.S. Navy. was personally involved in the 
preparation of financial proposals, invoices and collection process. 
For the SBMA Power/Electrical Manager Project: 
Full involvement in preparation of invoices, accounting and follow ups 
Request of contract extension and re-alignment of contract budget 
Assisted the expatriate project manager with his and his ~ife's immigration 
documerits 
Procurement of vehicle for use of the Project Manager 
Turnover of equipment to the client upon completion of the project. 
Projects Adntin and .4sic-r (internafiotia/j 15% 
Billing/lnvoicing 
Liaison with Asian Development Bank for contract extension and re-alignment of 
budget costs and collection follow-up. 
Contract closure and final billing including adjustments 
Recruitment of Filipino engineers for overseas projects 
Travel arrangements 
Thc petitioner indicated that the beneficiary regularly supervises staff. including an IT-Computer Operator. a 
Secretary/Bookkceper, and a General ClerMUtility. 
On November 7. 3003, the director denied the petition. The director deternlirled that the petitioner did not 
establish that the beneficiary will be employed in the United States in a primarily managerial or executive 
capacity. The director noted that the petitioner's organizational chart does not reflect that the beneficiary 
supervises subordinate employees who \vould relieve her from performing day-to-day tasks. The director 
states that "the petitioner's description of the beneficiary's duties clearly show[sj that the beneficiary has been 
perfonning and will continue to [perform] the day-to-day duties to maintain the petitioner's accounting 
department." The director commented that the petitioner has provided no evidence to show that it is cu~~ently 
hiring additional employees. The director interpreted the pctitioner's State quarterly reports to show that the 
beneficiary did not commence employment with the petitioner in the llriited States until July 1. 2003. The 
director pointed out that an organizational chart submitted with the initial- evidence suggests that the 
beneficiary supervises a bookkeeper, a secretary, a utility man, and a driver. which renders her. at bcst. a first- 
line supervisor. 
On appeal. counsel asserts that the bencficiary will be employed in a primarilq managerial capacity Counscl 
explains that. during her initially approved I<-lA period, the beneficiary returned to Manila to \\orb on a 
project for the foreign entity. Thus. she is not included on all of the petitioner's quarterly filings. Counsel 
further asserts that the beneficiary is eligible for L- l status due to her employment ~n'a specialized knowledge 
capacity. Counsel lists the beneficiary's duties that purportedly require specialized knowledge, the majority of 
which involve administrative tasks and the preparation of various technical and financial documents under the 
supervision of senior management. Counsel further states the following: 
[The beneficiary] also performs in a managerial capacity. She supervises, monitors and 
sometimes rejects requests from professional engineers or other professional staff members, 
and also manages the technical aspects of their international projects, which constitutes 35% 
of their business. This is a senior level position, which requires [the beneficiar)] to exercise 
management and direction of professionals as well as other employees and/or subcontractors. 
The petitioner provides a letter that further discusses the beneficiary's duties and role in the company's 
operations. The petitioner explains that the beneficiary coordinates the preparation of the petitioner's contract 
proposals. The petitioner states that the beneficiary supervises and assists in preparing documentation to 
attempt to have the petitioner short-listed for desired projects. The petitioner provides that the beneficiary 
"supervises and assists the technical staff on the methodology. recommendations for the staffing to be 
proposed. and editindtailoring to the needs of the client." The petitioner further states that: 
Because of the financial liability involved [in] decision-making, it is necessary that only the 
top management have the final word regard~ng professional engineering and construction 
management services; however, [the beneficiary] does take a high-level role ill this process. 
She works with, supervises, monitors and even rqjects requests from professional engineers 
andlor other professional staff on technical aspects of our international projects. 
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. 
.2(1)(3)(ii. The petitioner's description of the job duties milst clearly describe the, duties to be 
performed by the bcneficiary and indicate whether such duties are eitlier in an executive or managerial 
capacity. Id. The petitioner must specifically state whether the beneficiary i's primarily employed in a 
managerial or executive capacity. In the instant matter, the petitioner claims that the beneficiary will be 
employed in a managerial capacity. Yet. the descriptions of the beneticiary's duties reflect that the majority 
of her time is devoted to non-qualifying administrative and clerical tasks. 
The petitioner indicates that the beneficiary will spend 30 percent of her time on administrative tasks such as 
assisting in preparing proposals, booking travel reservations for staff, and maintaining and distributing 
records of the petitioner. These tasks do not constitute managerial or eseci~tive duties as defined by sections 
10l(a)(44)(A) and (B) of the Act. The petitioner provides that the beneficiary will commit 35 percent of her 
time to local pro.ject administration and finance tasks. Many of the duties listed under this category are non- 
qualifying administrative tasks. such as: making arrangements for stat'f per diem payments. visas. and 
accommodations for travel; assisting in the set up of project offices by procuring of. vehicles. office 
equipment, furniture and other logistical supplies for project offices' use; creating invoices; and setting up job 
interviews and preparing employment contracts. While some tasks under this category appear to be 
Page 9 
managerial in nature. the petitioner has failed to indicate the percentage of time the beneficiary \\ill devote to 
them as opposed to other tasks within this group. The petitioner provided that the beneficiary will commit 15 
percent of her time to international project administration. Yet, the tasks listed under this category are 
primarily administrative, non-managerial activities, such as billing and invoicing. performing final billing 
including adjustments, and making travel arrangements. Within this category, the petitioner states that the 
beneficiary will be responsible for "[Iliaison with Asian Development Bank for contract extension and re- 
alignmeni of budget costs and collection follow-up," yet without further explanation it is i~nclear whether th~s 
is a managerial or executive task. 
The petitioner indicates that the beneficiary will commit 30 percent of her time to financial tasks. Yet. from 
the vague list of duties under this category, it is unclear what actual tasks the beneficiary will perform in this 
regard. For example. the beneficiary is responsible for payroll, but the petitioner lias not explained whether 
she will perform the administrative tasks such as issuing checks, or whether she will direct others to do so. 
The beneficiary is responsible for financial statements, yet it is unclear whether she will prepare such 
statements. or work through subordinates employees to accomplish this goal. The beneficiary is responsible 
for accounts receivable and payables, yet it appears that she the routine administrative functions in 
this regard, as the petitioner clearly stated that she prepares invoices. The beneficiary's procurement activities 
under this category appear to be nonqualifying functions related to acquiring materials such as office 
furniture and automobiles. 
Accordingly, the beneficiary's job descriptions and the breakdown of her duties reflect that she is primarily 
engaged with lion-qualifying. administrative tasks. 
The petitioner claims that that beneficiary will have supervisory authority over subordinate employees. 
including an IT-Computer Operator, a Secretary/Bookkeeper, and a General ClerUUtility. Yet, these thrce 
employees are based in the foreign entity's Manila office, and none of them are listed as the beneficiary's 
subordinates on the foreign entity's organizational chart. Further, these three.employees do not appear on the 
organizational charts submitted with the initial petition. While counsel claims that the beneficiary's duties 
require her "to exercise management and direction of professionals as well as other emplo},ees and/or 
subcontractors." the evidence of record does not support this contention. Going on record without si~pporting 
documentary evidence is not sufficient for purposes of meeting the burden of proof in these proceedings. 
~Wrfter qf Soffici. 22 I&N Dec. 158. 165 (Comm. 1998) (citing A4alrer c?f Trecjszrre (:'rcrfi of ('ul~fiforni~~. 14 
I&N Dec. 190 (Keg. Comrn. 1972)). 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. 
iL1~1tler ofClhuigher70, 19 I&N Dec. 533, 534 (BIA 1988): M~~trer (?f L~~urewlo, 19 I&N Uec. 1 (BIA 1983 1: 
.&fuller qf Ramirez-Snr~cl?ez, 17 i&N Dec. 503. 506 (BIA 1980). 
Further. the evidence of record does not support that the beneficiary is a fi~nctiori manager. .The tern1 
"firnctiun manager" applies generally when a beneficiary does riot supervise or control the bvorli of a 
subordinate staff but instead is primarily responsible for managing an "essential function" within the 
organization. See section 101(a)(43)(A)(ii) of the Act. 8 U.S.C. $ 1 IOl(a)(44KA)(ii). If a petitioner claims 
that the beneficiary is managing an essential function, the petitioner must identil'y the function with 
specificity, articulate the essential nature of the function. and establish the proportion of tile beneficiary's 
Page 10 
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 perfonns the duties relating to the function. An employee who primarily 
performs the tasks necessary to produce a product or to provide services is not considered to be employed in a 
managerial or executive capacity. .Waiter of C'llurch Scientology I~tten~ritional, 19 I&N Dec. 593, 604 
(Comm. 1988). In this matter, the beneficiary's duties are primarily non-managerial. Further, the ,beneficiary 
does not have primarily responsibility for an essential function. While the petitioner' indicates that the 
beneficiary operates at a "high level," the petitioner states that "it is necessary that only the top management 
have the final word regarding professional engineering and construction management services." The 
petitioner's expla~iation clearly excludes the beneficiary from "top management." I'hus, the petitioner has not 
provided evidence that the beneficiary manages an essential function. 
Further, counsel and the petitioner assert that the beneficiary is eligible for L-1 classification due to her 
possession arid utilization of specialized knowledge. However. on Form '1-129, the petitioner clearly 
requested that the beneficiary's L-1A status be extended. The petitioner did not request that the beneficiary's 
status be changed to L-IB as an intraco~npany transferee employed in a capacity involving specialized 
knowledge. As such, the present petition will be adjudicated solely based on the provisions relating to L- I A 
intracolnpany transferees employed in a primarily managerial or executive capacity. If the petitioner wishes 
to have the beneficiary considered for L-IB status, it is permitted to file a separate Form 1-129 petition to 
make such a request. 
In the denial. the director further noted that the petitioner failed to show that it .is making efforts to hire 
additional employees. Yet. the petitioner must establish eligibility at the time of filing'the nonimmigrant visa 
petition. A visa petition may not be approved at a future date after the petitioner or beneficiary becomes 
eligible under a new set of facts. hiuiier of h41chrli~i Tire C'ory.. 17 I&N Dec. 348 (Reg. Comm. 1978). 
Whether the petitioner intends to hire additional employees in the future is not probative of its eligibility as of 
the date of filing the petition. Thus, the fact that the petitioner did not include evidence of efforts to hire 
additional staff has no material bearing on this visa petition. The director'scomment on this issue will be 
withdrawn. 
Based on the foregoing, the petitioner has riot established that the beneficiary will be employed in a primarily 
managerial or executive capacity. For this reason. the appeal will be dismissed. 
Beyond the decision of the director, counsel has not established that the beneficiary was employed abroad in a 
primarily managerial or executive capacity as required by 8 C.F.R. 5 214.2(1)(3)(iv). The petitioner irldicatcs 
that the beneticiary's duties abroad were largely the same as her duties in the United States. Tlius. for the 
reasons discussed above. the petitioner has failed to establish that the beneficiary was employed with the 
foreign entity in a primarily managerial or executive capacity. For this additional reason. the appcal will be 
dismissed. 
An application or petition that fails to comply with the technical requirements of the law may be denied by 
the AAO even if the Servicc Center does not identify all of the grounds for denial in the initial decision. Sec 
dS)?mcer Enterprises. Itrc.. v. lhlit@d~~l(~te~, 229 F. Supp. 9d 1025. 1033 (E.D. Cal. 2001 ). ufw. 345 F.3d 683 
(9th Cir. 2003); see also Dor Y. INS, 891 F.2d 997, 1002 n. 9 (2d Cir. 1989)(noting that the AAO reviekvs 
appeals on a tie novo basis). 
In visa petition proceedings, the burden of proving eligibility for the benefit soi~ght remains entirely with the. 
petitioner. Section 291 of the Act, 8 U.S.C. 5 136 1. The petitioner has not met this burden. 
ORDER: The appeal is dismissed.