dismissed L-1A Case: Exporting Construction Supplies

PUBLIC COPY 
U.S. Department of Homeland Security 
20 Mass Ave., N.W., Room. A3042 
Washington, DC 20529 
File: SRC 03 168 501 69 Office: TEXAS SERVICE CENTER Date: JUN 2 8 2f#)5 
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 I lOl(a)(lS)(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. 
Administrative Appeals Office 
b 
v 
SRC 03 168 50169 
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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 chief executive officer 
as an L-IA nonimmigrant intracompany transferee pursuant to section lOl(a)(15)(L) of the Immigration and 
Nationality Act (the Act), 8 U.S.C. 5 1101(a)(15)(L). The petitioner is a corporation organized in the State of 
Florida that is engaged in the business of exporting construction, building, and swimming pool supplies. The 
petitioner claims that it is the wholly owned subsidiary 01-located in Fusagasuga, 
Colombia. The beneficiary was initially granted a one-year period of stay to open a new office in the United 
States, and the petitioner now seeks to extend the beneficiary's stay. 
The director denied the petition, concluding that the petitioner failed to 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, counsel for the petitioner asserts that the director 
erred in her decision as a matter of law as well as in her review of the job duties of the beneficiary. 
To establish eligibility for the L-1 nonimmigrant visa classification, the petitioner must meet the criteria 
outlined in section lOl(a)(lS)(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: 
(i) Evidence that the petitioner and the organization which employed or will employ the 
alien are qualifying organizations as defined in paragraph (I)(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 03 168 50169 
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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. 8 214.2(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. 
The issue in the present matter is whether the beneficiary would 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. 5 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 03 168 50169 
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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 10 l(a)(44)(B) of the Act, 8 U.S.C. 5 1 101 (a)(44)(B), defines the term "executive capacity" as an 
assignment within an organization in which the employee primarily: 
(i) directs the management of the organization or a major component or function of the 
organization; 
(ii) establishes the goals and policies of the organization, component, or function; 
(iii) exercises wide latitude in discretionary decision making; and 
(iv) receives only general supervision or direction from higher level executives, the board 
of directors, or stockholders of the organization. 
In a letter dated May 27, 2003 accompanying the Form 1-129, Petition for a Nonimmigrant Worker, counsel 
for the petitioner described the beneficiary's job duties as follows: 
The Beneficiary's job duties in the United States for the Petitioner continue to be managerial. 
The Beneficiary maintains overall responsibility over the marketing, billing, services, and 
customer relations for the Petitioner's product. She oversees contract negotiations with 
commercial enterprises and independent contractors who provide products and shipping; she 
oversees all advertising in the US., and is generally responsible for the all [sic] functions of 
the Petitioner's business. The Beneficiary has the authority to disburse funds. The 
Beneficiary basically manages functions of the Petitioner critical to its success. 
On July 12, 2003, the director requested additional evidence. Specifically, the director requested an 
explanation of how the beneficiary would not engage in the day-to-day operation of the business and how she 
would meet the regulatory requirements for being employed in a managerial or executive capacity. The 
director also requested copies of the petitioner's (I) Employer's State Quarterly Tax Return for the most recent 
two quarters, (2) Form 940 EZ Employer's Annual Federal Unemployment Tax Return, and (3) proof that 
payments to the Internal Revenue Service have been made. A description of the duties and educational 
background of employees other than the beneficiary was also requested. 
In response, counsel for the petitioner submitted its state and federal quarterly tax returns for the first two 
quarters of 2003, evidence showing that federal tax payments for 2003 were made, and a sworn affidavit from 
the beneficiary. The beneficiary stated in the "affidavit"' that her "primary functions are to manage the 
I 
Although the beneficiary singed the 'affidavit," she did not do so before a notary public. According to the 
Florida Supreme Court, as the "affidavit was not notarized and as it does not contain the phrase "[ulnder 
penalties of perjury, I declare that I have read the foregoing [document] and that the facts stated in it are true," 
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enterprise, implement the strategic goals and objectives of the company by preparing the budget, raising 
working capital, as well as negotiate contracts, oversee design, marketing, promotion and delivery of the 
company's products and services." The beneficiary also described the following as her job duties: 
Oversee and supervise the accountants, attorneys and building consultants. 
Prepare contracts, budgets, and building plans for specific projects; discuss, review, and 
finalize these matters with the input and advice fi-om each professional. 
Review payroll and process the information for filing by the accountant. 
Review accounts payable to ensure timely payment to vendors and review the company's 
budget to set credit limits with vendors. 
Research strategies to approach additional investors. 
Hire and fire employees and set employment and personnel policies and procedures. 
Directly supervise the three subordinate employees in their roles in management, as well 
as supervise independent contractors performing pool maintenance and weekly service. 
The beneficiary stated in the "affidavit" that she has three employees under her direction and control: (1) a 
business administrator whose function is to manage and coordinate the everyday activities; (2) a bookkeeper 
whose job is to open the mail, make bank deposits, reconcile the bank account, and ensure the computers are 
functioning; and (3) a purchasing manager whose role is to pian, manage, organize, coordinate, supervise and 
evaluate the programs of the purchasing division. 
On October 27, 2003, the director denied the petition. The director determined that the petitioner has not 
established that at the time of filing, the beneficiary is primarily performing in a managerial or executive 
capacity. The director noted that the beneficiary is not managing other professionals or managers. The 
director further noted that while the petitioner claims that it employs private contractors, it has not been 
established that the beneficiary uses contractors to perform the majority of the day-to-day activities of the 
company. Therefore, the director concluded that given the current structure of the company, the beneficiary 
would have to engage in non-qualifying day-to-day business activities of the company. 
On appeal, counsel for the petitioner argues that the director's decision is "overly restrictive" in its 
interpretation of the regulations. Counsel reiterates at length the applicable statutory provisions relating to the 
terms "executive," "managerial," and "specialized knowledge," and cites to various unpublished AAO 
decisions. Counsel asserts that the beneficiary's duties are managerial and/or executive in nature, and that the 
director erred as a matter of law as well as in her review of the beneficiary's job duties. 
Upon review, counsel's assertions are not persuasive. Whether the beneficiary is a managerial or executive 
employee turns on whether the petitioner has sustained its burden of proving that her duties are "primarily" 
managerial or executive. See sections 101(a)(44)(A) and (B) of the Act. Here, the petitioner fails to 
document what proportion of the beneficiary's duties would be managerial and what proportion would be 
non-managerial. The description of the beneficiary's duties, as provided by the petitioner and the beneficiary, 
it cannot be considered to be a proper affidavit or sworn and verified document. See State v. Shearer, 617 
So. 2d (Fla. App. 5 Dist. 1993). 
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include both managerial and administrative or operational tasks, but fails to quantify the time the beneficiary 
spends on them. This failure of documentation is important because several of the beneficiary's daily tasks, 
such as "prepar[ing] contracts, budgets, and building plans for specific projects," and "research strategies to 
approach additional investors" do not fa11 directly under traditional managerial duties as defined in the statute. 
For this reason, the AAO cannot determine whether the beneficiary is primarily performing the duties of a 
manager. See IKEA US, Inc. v. US. Dept. ofJuslice, 48 F. Supp. 2d 22,24 (D.D.C. 1999). 
Counsel claims on appeal that the beneficiary does not "primarily perform the [day-to-day] tasks" of the 
company, but instead, "oversees the essential functions" of the petitioner. Similarly, the beneficiary stated in 
her "affidavit" that she "oversee[s] design, marketing, promotion and delivery of the company's products and 
services." However, the evidence submitted does not indicate that the beneficiary's three subordinate 
employees, or any other persons, actually perform the functions that the beneficiary claims to oversee. Thus, 
either the beneficiary herself is performing the "design, marketing, promotion and delivery of the company's 
products and services" or she does not actually manage these functions as claimed. h either case, the AAO is 
left to question the vatidity of the petitioner's claim and the remainder of the beneficiary's claimed duties. 
Doubt cast on any aspect of the petitioner's proof may, of course, lead to a reevaluation of the reliability and 
sufficiency of the remaining evidence offered in support of the visa petition. Matter nfHo, 19 I&N Dec. 582, 
591 (BIA 1988). If the beneficiary herself is performing the design, marketing, promotion and delivery of the 
company's products and services, the AA0 notes that 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 of Scientology International, 19 I&N Dec. 593, 604 (Comm. 1988). 
Counsel also claims that the petitioner uses independent contractors to perform the routine services of the 
company. However, as the director noted, while the petitioner claims that it employs independent contractors, 
the petitioner has not presented evidence to document the existence of these employees. Additionally, the 
petitioner has not documented how the services of the independent contractors obviate the need for the 
beneficiary to primarily conduct the petitioner's business. Without documentary evidence to support its 
statements, the petitioner does not meet its burden of proof in these proceedings. Matter of Treasure Craft of 
California, 14 I&N Dec. 190 (Reg. Comm. 1972). 
Counsel refers to an unpublished decision involving an employee owhere the AAO 
determined that the beneficiary met the requirements of serving in a managerial or executive capacity for L-1 
classification as a sole employee who directs and controls the petitioner's major functions through 
independent contractors. Counsel also cites to other unpublished decisions of the AAO relating to the size of 
an organization's staff and asserts that the director's statements are "violative of established case law." The 
AAO notes that while 8 C.F.R. fj 103.3(c) provides that AAO precedent decisions are binding on all 
employees of the Citizenship and Immigration Services (CIS) in the administration of the Act, unpublished 
decisions are not simiIarly binding. Moreover, it is noted that counsel has furnished no evidence to establish 
that the facts of the instant petition are analogous to those in thatter, or any of the other 
unpublished decisions referenced in counsel's brief. Going on record without supporting documentary 
evidence is not sufficient for purposes of meeting the burden of proof in these proceedings. See Matter of 
Treasure Craft of California, 14 I&N Dec. 190. 
SRC03 16850169 
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The AAO also concurs with the director that the petitioner has not established that the beneficiary's 
subordinate employees are supervisory, professional, or managerial. Although the beneficiary is not required 
to supervise personnel, if it is claimed that her duties involve supervising employees, the petitioner must 
establish that the subordinate employees are supervisory, professional, or managerial. See 5 101 (a)(44)(A)(ii) 
of the Act. 
In evaluating whether the beneficiary manages professional employees, the AAO must evaluate whether the 
subordinate positions require a baccalaureate degree as a minimum for entry into the field of endeavor. 
Section 101(a)(32) of the Act, 8 U.S.C. 5 1 101(a)(32), states that "[tlhe term profession shall include but not 
be limited to architects, engineers, lawyers, physicians, surgeons, and teachers in elementary or secondary 
schools, colleges, academies, or seminaries." The term "profession" contemplates knowledge or learning, not 
merely skill, of an advanced type in a given field gained by a prolonged course of specialized instruction and 
study of at least baccalaureate level, which is a realistic prerequisite to entry into the particular field of 
endeavor. Matter of Sea, 19 I&N Dec. 817 (Comm. 1988); Matter of ling, 13 T&N Dec. 35 (R.C. 1968); 
Matter ofshin, 1 1 I&N Dec. 686 (D.D. 1966). 
Therefore, the AAO must focus on the level of education required by the position, rather than the degree held 
by a subordinate employee. The possession of a bachelor's degree by a subordinate employee does not 
automatically lead to the conclusion that an employee is employed in a professional capacity as that term is 
defined above. In the instant case, the petitioner has not provided sufficient details relating to the positions of 
the beneficiary's subordinates to establish that an advanced degree is actually necessary to perform their 
d~ties.~ Nor has the petitioner shown that any 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. Thus, the petitioner has not shown that the beneficiary's subordinate employees are 
supervisory, professional, or managerial, as required by section 1 0 1 (a)(44)(A)(ii) of the Act. 
The AAO notes that in its letter accompanying the Form 1-129, the petitioner indicates that it plans to hire 
additional employees in the future. However, 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 Michelifi Tire Carp., 17 I&N Dec. 248 (Reg, 
Comm. 1978). Furthermore, 8 C.F.R. 9 214.2(1)(3)(v)(C) allows the intended United States operation one 
year within the date of approval of the petition to support an executive or managerial position. There is no 
provision in CIS regulations that allows for an extension of this one-year period. If the business is not 
sufficiently operational after one year, the petitioner is ineligible by regulation for an extension. In the instant 
matter, the petitioner has not reached the point that it can employ the beneficiary in a predominantly 
managerial or executive position. 
2 The AAO notes that the petitioner did submit a copy of the job description for the purchasing manager in 
response to the director's request for furrher evidence. However, that document does not indicate that an 
advance degree is necessary for the performance of that job. There is no information in the record relating to 
the job requirements and job duties far the positions of business administrator and bookkeeper other than the 
brief descriptions in the beneficiary's "affidavit," which do not indicate any educational requirements for those 
positions. 
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Accordingly, the petitioner has not established that the beneficiary will be employed in a primarily executive 
or managerial capacity, as required by 8 C.F.R. $ 214.2(1)(3). 
Beyond the decision of the director, the record contains insufficient evidence to establish a qualifying 
relationship between the foreign entity and the U.S. entity. Significantly, there appears to be conflicting 
information in the record regarding the foreign entity's ownership of shares in the U.S. entity. The petitioner 
stated on the Form 1-129, filed on May 29,2003, that the foreign entity owns 80,000 shares of common stock, 
constituting 100% of the outstanding shares, in the U.S. entity. However, a letter signed by the beneficiary as 
acting general manager of the foreign entity, dated April 25, 2003, indicated that the foreign entity holds 
"100,000 shares (100% of the outstanding shares)" of the U.S. entity. 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. at 591-92. Absent sufficient consistent 
information regarding the ownership of the U.S. entity, the AAO cannot conclude that there is a qualifying 
relationship between the foreign entity and the U.S. entity. For this additional reason, the petition may not be 
approved. 
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), affd. 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. 5 1361. Here, that burden has not been met. Accordingly, the 
director's decision to deny the petition will be affirmed and the appeal will be dismissed. 
ORDER: The appeal is dismissed.