dismissed L-1A Case: Event Sound Systems

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PUBLIC COPY 
U.S. Departme~~t of Homeland Sec~~rity 
20 Massachusetts Ave., N.W., Rm. 3000 
Wash~ngton, DC 20529 
U.S. Citizenship 
and Immigration 
File: SRC 04 230 50762 Office: TEXAS SERVICE CENTER Date: JUL 0 6 2006 
IN RE: 
Petition: 
 Petition for a Nonimmigrant Worker Pursuant to Section 10 1 (a)(15)(L) of the Immigration 
and Nationality Act, 8 U.S.C. 5 1101(a)(15)(L) 
ON BEHALF OF PETITIONER: 
SELF-REPRESENTED 
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. 
SRC 04 230 50762 
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 this nonimmigrant petition seeking to extend the employment of its presidentldirector 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. 8 1101(a)(15)(L). The petitioner is a corporation organized in the State of 
Florida that claims to provide sound systems and 
 for events, and other related services. 
The petitioner states that it is the 
 in Montevideo, Uruguay. The 
beneficiary was initially granted L-1A 
 in order to open a new office in the 
United States and the petitioner now seeks to extend his stay for two years. 
The director denied the petition concluding that the petitioner did not establish that the beneficiary would 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, the petitioner asserts that the director failed to 
consider evidence demonstrating that the petitioner utilizes independent contractors to perform some of the 
day-to-day activities of the business. The petitioner asserts that the beneficiary will be employed in an 
executive capacity. The petitioner submits a letter in support of the appeal. 
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. 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 
education, training, and employment qualifies himher to perform the intended 
SRC 04 230 50762 
Page 3 
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. 
 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 (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. 
At issue in the present matter is whether the petitioner established that 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. $ 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 
(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 
SRC 04 230 50762 
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acting in a managerial capacity merely by virtue of the supervisor's supervisory 
duties unless the employees supervised are professional. 
Section lOl(a)(44)(B) of the Act, 8 U.S.C. § 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. 
The nonimrnigrant petition was filed on August 26, 2004. The petitioner indicated on Form 1-129 that it 
intended to continue to employ the beneficiary as president/director of its three-person company. In an August 
21, 2004 letter submitted in support of the petition, the petitioner described the beneficiary's duties as 
follows: 
[The beneficiary] was transferred . . . in L-1 status . . . for a period of one year, in order to 
serve in this country in the position of President. He wrote the new business plan, set up the 
goals and strategies and he did a research. While [the beneficiary] [is] in the United States 
working with [the petitioner], his day-to-day managerial and executive duties will be assigned 
and divided between Connecticut and Florida. [The beneficiary] has had a key role in the 
expansion plans, and his continuing presence is essential to bring the expansion effort to a 
successful conclusion. 
The petitioner mentioned that the U.S. company has two locations, in Stamford, Connecticut and Miami 
Beach, Florida, and stated that the beneficiary "is opening, setting up and organizing the new business 
location in Miami Beach." The petitioner indicated that the company's services include amplification and 
audio services for companies, updating audio systems, transporting services, third party services, and 
amplification and sound systems for events and conventions. 
In support of the petition, the petitioner submitted its most recent Florida Form UCT-6, Employer's Quarterly 
Report, showing that the petitioner had three employees, including the beneficiary, as of June 2004. The 
petitioner submitted a copy of the lease agreement and photographs of its Stamford, Connecticut office, but 
did not provide evidence of wages paid to employees working at that location. 
The director issued a request for additional evidence on October 12, 2004, advising the petitioner that 
additional evidence would be needed to establish that the U.S. company can currently support a managerial or 
executive position. Specifically, the director instructed the petitioner to submit: (1) a detailed job description 
for the. beneficiary demonstrating that he would be functioning as an executive or manager, including the 
SRC 04 230 50762 
Page 5 
percentage of time he would devote to performing each duty; (2) evidence of the current staffing level in the 
United States, including job titles, duties and educational background for the petitioner's employees; and (3) a 
copy of the U.S. company's organizational chart. 
The petitioner submitted a response to the director's request on November 9,2004. The petitioner provided an 
organizational chart which depicts the beneficiary as president supervising an executive secretary, who in turn 
supervises a contract employee. The chart shows that the beneficiary also supervises an operations director 
who oversees a contract employee and a contracted company, "Big Apple Smoothies, Inc." 
In response to the director's request for a detailed description of the beneficiary's duties, the petitioner 
provided the following: 
Responsible for commercial planning and strategies. 
In charge of Public Relations and be responsible for developing new markets, customers 
or j oint-ventures. 
Market development 
Commercial agreements. 
Making contacts with clients. 
The petitioner stated that the operations director is in charge of the Miami Beach branch, supervises contract 
laborers and sub-contracted companies, and plans marketing actions, with the assistance of a contract 
employee who is responsible for "collaborating and helping the Operations Director in the operative part in 
moments of greater activities." The petitioner stated that the executive secretary is responsible for "facing the 
daily operation," reporting directly to the beneficiary, and "maintaining record of financial reports and 
economic transactions," with the assistance of a contract employee who assists her "in the administrative 
system maintenance in moments of greater activities or whenever deadlines require additional efforts." The 
petitioner stated that Big Apple Smoothies, Inc. is a "sub-contracted company in order to perform day-to-day 
works." 
The petitioner submitted a payroll summary for the first nine months of 2004, confirming employment of the 
beneficiary, the executive secretary, and the operations director. The petitioner submitted copies of four 
checks paid to the three claimed contractors, dated April, July and August 2004, which amount to total 
payments of $22,200. The petitioner also provided its profit and loss statement for January 1, 2004 through 
October 22, 2004, which reflects $1 1,700 in payments for "subcontractor labor" and $50,800 in payments for 
"events organization." 
The director denied the petition on November 24, 2004 concluding that the petitioner had not established that 
the beneficiary would be employed in a primarily managerial or executive capacity under the extended 
petition. The director observed that the beneficiary is one of only three employees, "his primary assignment 
does not appear to be supervising a subordinate staff of professional, managerial or supervisory personnel." 
On appeal, the petitioner contends that the director failed to take into account evidence that the petitioner 
utilizes subcontractors to perform some of the day-to-day functions of the business. The petitioner asserts 
that the beneficiary is "primarily and exclusively" serving in an executive capacity in that: he directs the 
SRC 04 230 50762 
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management of the organization, namely, the operations director who also serves as the manager of the 
company's Florida branch. The petitioner also states that the beneficiary exercises wide latitude in 
discretionary decision-making, with responsibility for making decisions and influencing the business in order 
to correct any deviation from company goals. The petitioner asserts that this duty is complex, non-delegable 
and "extremely time consuming," and does not allow the beneficiary "to perform any other day-to-day non- 
managerial/executive functions." Finally, the petitioner asserts that the beneficiary receives direction only 
from the petitioner's parent company. 
The petitioner'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. 
9 214.2(1)(3)(). 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 initially provided a vague and nonspecific description of the beneficiary's duties that failed to 
demonstrate what managerial or executive functions the beneficiary performs on a day-to-day basis. For 
example, the petitioner stated that the beneficiary "wrote the new business plan, set up the goals and strategies 
and . . . did a research," and noted that the beneficiary's "day-to-day" managerial and executive duties will be 
assigned and divided between Connecticut and Florida." Conclusory assertions regarding the beneficiary's 
employment capacity are not sufficient. 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), afd, 905 F.2d 41 (2d. Cir. 1990). 
The director specifically requested that the petitioner provide a detailed account of the beneficiary's duties, 
along with the percentage of time he would devote to each duty. The petitioner's response included only a 
brief and general description of the beneficiary's duties and did not indicate how the beneficiary allocates his 
time among his various duties. This evidence is critical as it would have established the actual duties 
performed by the beneficiary, whether they are managerial or executive in nature, and the proportion of time 
he devotes to qualifying duties as opposed to operational or administrative tasks. The purpose of the request 
for evidence is to elicit further information that clarifies whether eligibility for the benefit sought has been 
established. 8 C.F.R. 3 103.2(b)(8). The failure to submit requested evidence that precludes a material line of 
inquiry shall be grounds for denying the petition. 8 C.F.R. tj 103.2(b)(14). 
Specifically, when requested to provide a more detailed account of the beneficiary's specific duties and the 
percentage of time he devotes to each duty, the petitioner provided an abbreviated job description which 
appears to include non-qualifying duties. For example, the petitioner states that the beneficiary is responsible 
for "marketing development," "commercial agreements," "making contacts with clients," "public relations," 
and developing new markets, customers." Without further explanation, these duties, which account for the 
majority of the beneficiary's job description, could depict an employee who is directly involved in the 
company's day-to-day market research, marketing, promotion, customer service and sales activities. It is not 
possible to determine that the beneficiary's duties associated with these activities are primarily managerial or 
executive. An employee who "primarily" performs the tasks necessary to produce a product or to provide 
services is not considered to be "primarily7' employed in a managerial or executive capacity. See sections 
SRC 04 230 50762 
Page 7 
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). 
Overall, the petitioner's descriptions of the beneficiary's duties appeared to include non-qualifying duties and 
were too vague and general to allow any meaningful determination as to what actual duties the beneficiary 
performs, or how much time he devotes to qualifying managerial or executive functions. Reciting the 
beneficiary's vague job responsibilities or broadly-cast business objectives is not sufficient; the regulations 
require a detailed description of the beneficiary's daily job duties. The petitioner has failed to answer a 
critical question in this case: What does the beneficiary primarily do on a daily basis? The actual duties 
themselves will reveal the true nature of the employment. Fedin Bros. Co., Ltd. v. Suva, 724 F. Supp. at 1108. 
On appeal, the petitioner again declines to further delineate the beneficiary's actual tasks. Instead, the 
petitioner paraphrases the statutory definition of executive capacity, asserts that the beneficiary meets all four 
criteria outlined by the statute, and implies that the beneficiary is required to devote all of his time making 
decisions regarding the business and therefore cannot be involved in the day-to-day functions of the business. 
Again, 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. at 1108; Avyr Associates, Inc. v. Meissner, 1997 WL 188942 at *5 
(S.D.N.Y.). As discussed above, the record contains no comprehensive description of the beneficiary's 
duties and no supporting evidence to support the petitioner's claim that the beneficiary is employed in a 
managerial and executive capacity, other than in position title. Going on record without supporting 
documentary evidence is not sufficient for purposes of meeting the burden of proof in these proceedings. 
Mutter of Soffici, 22 I&N Dec. 158, 165 (Comm. 1998) (citing Matter of Treasure Craft of California, 14 
I&N Dec. 190 (Reg. Comm. 1972)). 
Although the beneficiary is not required to supervise personnel, if it is claimed that his duties involve 
supervising employees, the petitioner must establish that the subordinate employees are supervisory, 
professional, or managerial. See 4 10 1 (a)(44)(A)(ii) of the Act. 
Although requested by the director, the petitioner did not provide the level of education required to perform 
the duties of its "operations director" or executive secretary. Thus, the petitioner has not established that 
these employees possess or require a bachelor's degree, such that they could be classified as professionals. 
Nor has the petitioner shown that either of these employees supervise subordinate staff members or manage a 
clearly defined department or function of the petitioner, such that they could be classified as managers or 
supervisors. Although the petitioner indicates that both of the beneficiary's subordinates supervise 
independent contractors, as discussed further below, the petitioner did not adequately document the 
employment of these claimed employees, other than submitting copies of one or two checks paid to each one. 
There is insufficient evidence to establish that either of the beneficiary's subordinates regularly supervises 
other employees. Thus, the petitioner has not shown that the beneficiary's subordinate employees are 
supervisory, professional, or managerial, as required by section 101(a)(44)(A)(ii) of the Act. 
On appeal, counsel emphasizes that the director failed to consider the company's growth and gross income for 
the first half of 2004, and asserts that the director mischaracterized the petitioner's staffing levels by failing to 
take into account the company's use of subcontracted personnel who "do part of the day to day activities." If 
SRC 04 230 50762 
Page 8 
staffing levels are used as a factor in determining whether an individual is acting in a managerial or executive 
capacity, CIS must take into account the reasonable needs of the organization, in light of the overall purpose 
and stage of development of the organization. In the present matter, however, the regulations provide strict 
evidentiary requirements for the extension of a "new office" petition and require CIS to examine the 
organizational structure and staffing levels of the petitioner. See 8 C.F.R. 8 214.2(1)(14)(ii)(D). The 
regulation at 8 C.F.R. fj 214.2(1)(3)(v)(C) allows the "new office" 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 does not have sufficient 
staffing after one year to relieve the beneficiary from primarily performing operational and first-line 
supervisory tasks, the petitioner is ineligible by regulation for an extension. 
At the time of filing, the petitioner was a one-year-old company that claimed to provide sound and 
amplification services for events, as well as related services. The petitioner employs the beneficiary as 
presidenVdirector, an operations director who is described as the manager of the petitioner's Florida office, 
and an executive secretary. The petitioner claims to utilize the services of two contract laborers but has not 
provided a sufficient description of the nature or scope of the services they provide or evidence that the 
company regularly utilizes their services. The petitioner did provide copies of three checks paid to the two 
claimed contract employees; however, there is insufficient evidence that these monies were paid specifically 
for services rendered to the U.S. company. Again, going on record without supporting documentary evidence 
is not sufficient for purposes of meeting the burden of proof in these proceedings. Matter of Soflci, 22 I&N 
at 165. Similarly, the petitioner claims to utilize the services of "Big Apple Smoothies, Inc." which is 
described as a "fully operational subcontracted company" that performs "day-to-day works." The petitioner 
submitted a copy of a single check paid to this company in April 2004. The petitioner did not describe the 
types of services provided by this company, or explain what specific functions it performs in relation to the 
petitioner's "day-to-day works." The petitioner has not established that it regularly utilizes subcontracted 
employees to perform the day-to-day duties of the company. 
Finally, the petitioner has not explained how it is able to operate two branch offices in two different states 
with only three employees. Of these three employees, it appears that only the beneficiary would actually work 
in the petitioner's Connecticut office, although the petitioner stated that he will divide his time between the 
two offices. The petitioner's invoices indicate that the company is providing services out of both offices to 
customers in Connecticut and Florida. Therefore, the record suggests, and it has not been shown to be 
otherwise, that the beneficiary himself may be providing the company's services and performing all of the 
non-qualifying tasks associated with operating the company's Connecticut office. As discussed above, 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'l., 19 I&N Dec. 593,604 (Comm. 1988). 
The petitioner has not established that its reasonable needs would be met by a president who performs only 
executive or managerial duties, an operations director, and an executive secretary, even if it does utilize the 
services of subcontracted personnel for certain tasks. 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 
SRC 04 230 50762 
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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. 
The definitions of executive and managerial capacity have two parts. First, the petitioner must show that the 
beneficiary performs the high-level responsibilities that are specified in the definitions. Second, the petitioner 
must show that the beneficiary primarily performs these specified responsibilities and does not spend a 
majority of his or her time on day-to-day functions. Champion World, Inc. v. INS, 940 F.2d 1533 (Table), 
1991 WL 144470 (9th Cir. July 30, 1991). 
The test is basic to ensure that a person not only has the requisite authority, but that a majority of his or her 
duties related to operational or policy management, not to the supervision of lower level employees, 
performance of the duties of another type of position, or other involvement in the operational activities of the 
company. Hence, the fact that the beneficiary manages a business does not necessarily establish eligibility for 
classification as an intracompany transferee in a managerial or executive capacity within the meaning of 
sections lOl(a)(44)(A) and (B) of the Act. The record must establish that the majority of the beneficiary's 
duties will be primarily directing the management of the organization or a component or function of the 
organization. While the AAO does not dispute the beneficiary's responsibility for the petitioner's long-term 
planning and performance, the record is not persuasive in demonstrating that the beneficiary's actual duties 
will be in a primarily managerial or executive capacity. In the instant matter, the petitioner has failed to show, 
as of the date this petition was filed, that non-qualifying operational and first-line supervisory duties will not 
constitute the majority of the beneficiary's time. 
Based on the foregoing discussion, the petitioner has not established that the beneficiary would be employed 
in a primarily managerial or executive capacity under the extended petition. For this reason, the appeal will be 
dismissed. 
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. 
ORDER: The appeal is dismissed.