dismissed L-1A Case: Equipment

U.S. Department of Homeland Security 
20 Massachusetts Ave. N.W., Rm. A3042 
Washington, DC 20529 
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U. S. Citizenship 
and Immigration 
File: SRC 03 166 50384 Office: CALIFORNIA SERVICE CENTER Date: JUN 0 1 2006 
IN RE: Petitioner: 
Beneficiary: 
Petition: 
 Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(15)(L) of the Immigration 
and Nationality Act, 8 U.S.C. tj 1101(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 office that originally decided your case. Any further inquiry must be made to that office. 
. -' 6 
Robert P. Vb"reTi~in, Chief 
Administrative Appeals Office 
SRC 03 166 50384 
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 a motion to reconsider. The AAO will grant the 
motion, withdraw its prior decision, but uphold the previous decision of the director. 
The petitioner filed this nonimmigrant petition seeking to extend the employment of its vice president and 
managing director as an L-1A nonimmigrant intracompany transferee pursuant to section 101 (a)(15)(L) of the 
Immigration and Nationality Act (the Act), 8 U.S.C. § 1101(a)(15)(L). The petitioner is a corporation 
organized in the State of Florida that is engaged in the 
equipment.' The petitioner claims that it is the subsidiary of 
in Madrid, Spain. The beneficiary was initially granted a on 
United States, and the petitioner now seeks to extend the beneficiary's stay for an additional three years. 
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 June 18, 2004, the appeal in this matter was summarily 
dismissed for failure to submit a brief in support of the Form I-290B. On motion, the petitioner, through 
counsel, submitted sufficient documentation to show that the brief in support of the appeal was in fact timely 
filed. Consequently, the AAO will grant the motion to reconsider the matter, withdraw its prior decision, and 
adjudicate the appeal now properly before the AAO for consideration. 
On appeal, counsel for the petitioner also asserts that the director erred by finding that the beneficiary was not 
a qualified executive, particularly since he functions at the highest level in the petitioner's organizational 
hierarchy. In support of this assertion, counsel submits a brief and additional evidence. 
To establish eligibility for the L-1 nonimmigrant visa classification, the petitioner must meet the criteria 
outlined in section 101(a)(15)(L) of the Act. Specifically, a qualifying organization must have employed the 
beneficiary in a qualifying managerial or executive capacity, or in a specialized knowledge capacity, for one 
continuous year within three years preceding the beneficiary's application for admission into the United 
States. In addition, the beneficiary must seek to enter the United States temporarily to continue rendering his 
or her services to the same employer or a subsidiary or affiliate thereof in a managerial, executive, or 
specialized knowledge capacity. 
The regulation at 8 C.F.R. § 214.2(1)(3) states that an individual petition filed on Form 1-129 shall be 
accompanied by: 
1 
 It should be noted that, according to the Florida Department of State, Division of Corporations, the 
petitioner has been administratively dissolved due to its failure to satisfy the state's annual report 
requirements. Therefore, regardless of whether the petitioner's annual report issues in Florida can be easily 
remedied or not, it raises the issue of the company's continued existence as a legal entity in the United States. 
SRC 03 166 50384 
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(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. 
The regulation at 8 C.F.R. 5 214.2(1)(14)(ii) also provides that a visa petition, which involved the opening of a 
new office, may be extended by filing a new Form 1-129, accompanied by the following: 
(a) 
 Evidence that the United States and foreign entities are still qualifying organizations 
as defined in paragraph (l)(l)(ii)(G) of this section; 
(b) 
 Evidence that the United States entity has been doing business as defined in 
paragraph (l)(l)(ii)(H) of this section for the previous year; 
(c) 
 A statement of the duties performed by the beneficiary for the previous year and the 
duties the beneficiary will perform under the extended petition; 
(d) 
 A statement describing the staffing of the new operation, including the number of 
employees and types of positions held accompanied by evidence of wages paid to 
employees when the beneficiary will be employed in a managerial or executive 
capacity; and 
(e) 
 Evidence of the financial status of the United States operation. 
The 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. 9 1 101(a)(44)(A), defines the term "managerial capacity" as an 
assignment within an organization in which the employee primarily: 
(i) 
 manages the organization, or a department, subdivision, function, or component of 
the organization; 
SRC 03 166 50384 
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(ii) 
 supervises and controls the work of other supervisory, professional, or managerial 
employees, or manages an essential function within the organization, or a department 
or subdivision of the organization; 
(iii) 
 if another employee or other employees are directly supervised, has the authority to 
hire and fire or recommend those as well as other personnel actions (such as 
promotion and leave authorization), or if no other employee is directly supervised, 
functions at a senior level within the organizational hierarchy or with respect to the 
function managed; and 
(iv) 
 exercises discretion over the day to day operations of the activity or function for 
which the employee has authority. A first line supervisor is not considered to be 
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 1101(a)(44)(B), defines the term "executive capacity" as an 
assignment within an organization in which the employee primarily: 
(i) 
 directs the management of the organization or a major component or function of the 
organization; 
(ii) 
 establishes the goals and policies of the organization, component, or function; 
(iii) 
 exercises wide latitude in discretionary decision making; and 
(iv) 
 receives only general supervision or direction from higher level executives, the board 
of directors, or stockholders of the organization. 
In a letter of support submitted with the initial petition, counsel for the petitioner states that by establishing 
solid market connections for the petitioner, the beneficiary has successfully established the U.S. subsidiary. 
Based largely on her extensive role in expansion of the parent company into the Latin American market, 
counsel contends that the beneficiary is the logical choice to handle the further expansion of the petitioner in 
the United States. Counsel advises that the beneficiary would continue to promote and market the petitioner's 
product during her stay in the United States and indicates that her duties would include reviewing financial 
statements, attaining corporate objectives, and assessing market conditions. 
On June 7, 2003, the director requested additional evidence. Specifically, the director requested that the 
petitioner submit more detailed information regarding the beneficiary's duties and the manner in which they 
were managerial and/or executive in nature. Specifically, a complete description of duties was requested, 
including a list of all subordinate staff members and their positions and duties within the organization. 
SRC 03 166 50384 
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In response, counsel for the petitioner submitted a detailed list of the beneficiary's duties with a percentage 
breakdown of the time devoted to each duty. In addition, counsel advised that the beneficiary was assisted by 
a clerical assistant until that person was dismissed in March 2003 and that she is currently assisted by a new 
clerical assistant who was hired on June 30, 2003. Counsel further explained that the beneficiary is the only 
employee of the petitioner with managerial andlor executive duties, and generally restated the duties 
discussed in the initial letter of support. With regard to the breakdown of duties, counsel indicated that the 
beneficiary's duties were broken down in the following manner: 
Administration: 30% 
Coordination with Spain: 30% 
Sales and Client Support: 30% 
Traveling: 10% 
The petitioner further clarified that the wages and salaries figure of $31,919 on Line 13 of the petitioner's 
2002 U.S. Corporation Income Tax Return reflected wages paid solely to the beneficiary in the amount of her 
salary ($30,000) plus a bonus ($1,9 19). 
On July 30, 2003, the director denied the petition. The director determined that the beneficiary was not 
employed in a primarily managerial or executive capacity, and that since the evidence suggested she was the 
petitioner's sole employee, it was indisputable that she was required to perform firsthand the essential tasks 
necessary for the continued operation of the business. 
On appeal, counsel contends in a brief statement that the beneficiary is a function manager, and therefore 
qualifies as a manager or executive under the regulations. Counsel provides evidence of the petitioner's 
quarterly tax returns for the quarters ending March 3 1,2003 and June 30,2003, each showing that one of the 
two clerical assistants was employed by the petitioner during that period. No further documentation or 
evidence is submitted. 
Upon review, the AAO concurs with the director's decisions in this matter. 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). 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. 
On appeal, counsel resubmits an overview of the beneficiary's duties and concludes that she is a function 
manager and thus qualifies for the extension of the petition. 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 10 1 (a)(44)(A)(ii) of the 
Act, 8 U.S.C. 4 1101(a)(44)(A)(ii). The term "essential function" is not defined by statute or regulation. If a 
petitioner claims that the beneficiary is managing an essential function, the petitioner must furnish a written 
job offer that clearly describes the duties to be performed, i.e., identify the function with specificity, articulate 
the essential nature of the function, and establish the proportion of the beneficiary's daily duties attributed to 
SRC 03 166 50384 
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managing the essential function. 8 C.F.R. 5 214.2(1)(3)(ii). In addition, the petitioner's description of the 
beneficiary's daily duties must demonstrate that the beneficiary manages the function rather than performs the 
duties related 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. Boyang, Ltd. v. 
I.N.S., 67 F.3d 305 (Table), 1995 WL 576839 (9th Cir, 1995)(citing Matter of Church Scientology 
International, 19 I&N Dec. 593, 604 (Comm. 1988)). In this matter, the petitioner has not provided evidence 
that the beneficiary manages an essential function. 
Here, the petitioner claims that the beneficiary's duties are exclusively managerial andlor executive, yet the 
identified duties of the beneficiary in the record include numerous non-qualifying tasks. While performing 
non-qualifying tasks necessary to produce a product or service will not automatically disqualify the 
beneficiary as long as those tasks are not the majority of the beneficiary's duties, the petitioner still has the 
burden of establishing that the beneficiary is "primarily" performing managerial or executive duties. Section 
101(a)(44) of the Act. Whether the beneficiary is an "activity" or "function" manager turns in part on whether 
the petitioner has sustained its burden of proving that her duties are "primarily" managerial. 
In this case, the petitioner states that the beneficiary has and will continue to evaluate the market conditions 
for the petitioner and review financial statements and that 30% of her time is devoted to administration. Such 
duties are not included in the definition of either managerial or executive capacity, which counsel so strongly 
urges the AAO to consider. The record contains no additional evidence or explanation with regard to the 
duties of the beneficiary. Merely claiming that the beneficiary is an executive or manager is insufficient to 
establish eligibility in this matter. 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 California, 14 
I&N Dec. 190 (Reg. Cornm. 1972). 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). 
In addition, in the response to the request for evidence, counsel indicates that the beneficiary previously 
oversaw a clerical assistant who worked approximately 40 hours per week from October 2001 to March 2003, 
and this person had since been replaced by another clerical assistant who began work in June 2003. There are 
two problems with these claims. First, the petitioner seems to claim that a clerical assistant was employed full 
time during the beneficiary's tenure with the petition, which would include the tax year 2002. The petitioner, 
however, clarified in the response to the request for evidence that the wages and salaries paid that year, in the 
amount of $3 1,919, were solely paid to the beneficiary. If the clerical employee worked a full time position 
during this period, this evidence is contradictory and not supported, and raises issues with regard to 
credibility. 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). 
Second, the new clerical assistant allegedly began her employment with the petitioner in June 2003, the 
month after the beneficiary's period of stay expired and the month after the extension request was filed. The 
SRC 03 166 50384 
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petitioner must establish eligibility at the time of filing the nonimrnigrant visa petition. 
 Whether this 
employee does in fact relieve the beneficiary from performing non-qualifying duties is irrelevant, since she 
was not under the beneficiary's supervision at the time of filing. Consequently, this evidence is not persuasive 
in establishing the beneficiary's qualifications, since 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. Matter of Michelin Tire Corp., 17 I&N Dec. 248 
(Reg. Comm. 1978). While the petitioner continually alleges that the business is getting to a stage where 
other employees can relieve the beneficiary from performing non-qualifying duties, the relevant stage of the 
petitioner was that of the time of filing. 
Returning to the petitioner's claim that the beneficiary qualifies for the extension on the basis that she is a 
function manager, the AAO notes that there is no definitive, uncontradicted evidence that the beneficiary had 
a subordinate staff to relieve her from performing non-qualifying duties during the previous year. While a 
function manager may not necessarily have any direct subordinate employees, the record must still establish 
that the petitioner has sufficient staff to relieve the beneficiary fi-om primarily performing the function she 
claims to manage. Since it appears, absent evidence to the contrary, that the beneficiary was the only 
employee during the petitioner's first year of operation and that she performed an abundance of non- 
qualifying duties, the petitioner has failed to establish the beneficiary's eligibility as a function manager. It is 
undisputed that the beneficiary is engaged in client-related services and marketing. As previously stated, 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. Matter of Church Scientology 
International, 19 I&N Dec. 593, 604 (Comm. 1988). 
The fact that an individual manages a small business does not necessarily establish eligibility for 
classification as an intracompany transferee in a managerial or executive capacity within the meaning of 
section 101(a)(44) of the Act. The record does not establish that a majority of the beneficiary's duties have 
been or will be primarily directing the management of the organization. The petitioner has not demonstrated 
that it has reached or will reach a level of organizational complexity wherein the hiringhiring of personnel, 
discretionary decision-making, and setting company goals and policies constitutes significant components of 
the duties performed on a day-to-day basis. 
The regulation at 8 C.F.R. § 214,2(1)(3)(v)(C) allows the intended United States operation one year within the 
date of approval of the petition to support an executive or managerial position. There is no provision in 
Citizenship and Immigration Services (CIS) regulations that allows for an extension of this one-year period. 
Based on the evidence furnished, it cannot be found that the beneficiary has been or will be employed 
primarily in a qualifying managerial or executive capacity. For this reason, the petition may not be approved. 
Finally, upon further review of the director's decision, the AAO notes that included in the director's analysis 
was the following incorrect statement: "Evidence in the record is not persuasive that as of the filing date of 
the petition, the U.S. petitioner had grown to a point where it could remunerate the beneficiary." While this 
statement was merely included in the longer and more detailed review of the beneficiary's managerial andlor 
executive capacity, and was not a separate basis for the denial, the AAO notes that the director's reliance on 
this factor is erroneous. The regulation at 8 C.F.R. tj 214.2(1)(3)(v)(C)(2) requires that a new office petition 
SRC 03 166 50384 
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include evidence of the financial ability of the foreign entity to remunerate the beneficiary and to commence 
doing business in the United States. There is no requirement under the regulations pertaining to the extension of a 
new office that the petitioner submit evidence that it has the financial ability to remunerate the beneficiary. The 
director's statement with regard to this issue is hereby withdrawn. 
In visa petition proceedings, the burden of proving eligibility for the benefit sought remains entirely with the 
petitioner. Section 291 of the Act, 8 U.S.C. 5 1361. Here, that burden has not been met. Accordingly, the 
director's decision will be affirmed and the petition will be denied. 
ORDER: 
 The decision of the director is affirmed. The appeal is dismissed.