dismissed L-1A Case: Farm Equipment & Construction

U.S. Department of Homeland Security 
20 Mass. Ave, N.W. Rm. A3042 
Washington, DC 20529 
@ U. and S. Citizenship Immigration 
&hi, s0c Services 
P'?ilBk ,fC copy 
--b*- "\ 
File: SRC 03 097 5 1650 Office: TEXAS SERVICE CENTER Date: MY 1 1 2005 
Petition: Petition for a Nonimrnigrant Worker Pursuant to Section 101(a)(15)(L) of the Immigration 
and Nationality Act, 8 U.S.C. 8 1 10 1(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. 
aJV+ ( Robert P. Wiemann, Director 
Cr' 
dministrative Appeals Office 
SRCO309751650 . , 
Page 2 ' ' 
DISCUSSION: The Director, Texas Service Center, denied the petition for a nonimrnigrant 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 general manager 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. § 1 lOl(a)(lS)(L). The petitioner is a corporation organized in the State of 
Georgia that is engaged in the sale and distribution of farm equipment parts, as well as construction and 
renovation services. The petitioner claims that it is the subsidiary of .- 
Ltda., located in Tolima, 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 did not establish that the beneficiary will be 
employed in the United States in a primarily managerial or executive capacity. 
The petitioner filed an appeal in response to the denial. On appeal, counsel for the petitioner contends that the 
director erred in law and fact, and that the beneficiary was in fact acting in a primarily managerial or 
executive capacity. Furthermore, counsel infers that the denial was erroneously based on the number of 
employees retained by the petitioner. In support of these contentions, counsel submits a brief and additional 
evidence for consideration. 
To establish eligibility for the L-1 nonimmigrant visa classification, the petitioner must meet the criteria 
outlined in section 10 1 (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: 
(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 
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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. tj 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 perfonn 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 management or executive 
capacity; and 
(e) Evidence of the financial status of the United States operation. 
The primary issue in this 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. tj 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 
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(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 the initial petition, counsel submitted a letter dated February 13, 2003 from the petitioner detailing the 
nature of the beneficiary's duties. Specifically, the petitioner stated: 
[The beneficiary] will continue to perform in a managerial capacity similar in level to the 
positions she was responsible for carrying out in Colombia, exercising wide authority over 
the day-to-day financial activities of the U.S. business. Specifically, [the beneficiary] will 
continue to be responsible for duties at an even more senior level as General Manager, 
reporting only to .the Executive Board of the U.S. company. Her duties include hiring and 
firing, training and evaluation of staff, development of new business, and the negotiation of 
contracts with suppliers and purchasers. 
In this managerial assignment, [the beneficiary] will also continue to be responsible for 
investigating new business opportunities in the Atlanta market, and will report to the Board. 
She will look at financial projections, due diligence reports, and other applicable documents 
prior to advising the company members about investment in new business or in joint 
' ventures. Correspondingly, [the beneficiary] will manage the renovation and construction 
contracts from the referral stage through to ro'ect completion. The company presently has 
several sub-contractors with PJ which she manages in addition to 
coordinating scheduling to meet deadlines. 
Furthermore, she will continue to direct the distribution process from the U.S. side, from the 
time that an order comes in to the time that it is shipped to the customer, and she will 
continue to manage all customer service issues, including adjustments, credit, and returns. 
Finally, [the beneficiary] will perform the management duties associated with implementing 
SRC 03 097 5 1650 
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the company's marketing plan, including advertising by print and internet media, to ensure 
the continued success of the company in the U.S. market. 
On May 21, 2003, the director requested additional evidence pertaining to the nature of the beneficiary's 
position. In addition, the director requested documentation in support of the fact that the petitioner was doing 
business as defined by the regulations. 
In a response dated August 18, 2003, the petitioner, through counsel, submitted a detailed response to all of 
the points raised by the director, and provided extensive documentary evidence in support thereof. Wtth 
respect to the organizational structure of the U.S. entity, counsel stated that the beneficiary, as general 
manager, supervised one subordinate employee, namely, the marketing manager. Counsel further stated that 
the marketing manager in turn supervised a marketing assistant, In total, counsel asserted, the petitioner 
employed three persons, including the beneficiary, in addition to eight to eleven contractors. Next, counsel 
stated that the beneficiary "directs the activities of two or three supervisors, who in turn each have a team of 
up to three laborers." Finally, counsel stated that since the U.S. petitioner is not currently distributing goods, 
the beneficiary is in charge of directing customer service activities. 
On September 12, 2003, the director denied the petition. The director, who reviewed the record to determine 
eligibility under both managerial and executive capacity, found that the beneficiary's stated duties were not 
those of a bona fide executive, and thus were not primarily managerial or executive in nature. Given the 
current structure of the petitioner's staff, the director concluded that the beneficiary was performtng the 
necessary day-to-day activities essential to the continued operation of the business. 
On appeal, counsel asserts that the director erroneously concluded that the beneficiary's proposed duties did 
not meet the regulatory definitions of managerial or executive capacity. Specifically, counsel contends that 
"[CIS] has erroneously assumed that simply because a Manager engage in the day-to-day operations 
that the beneficiary yilJ engage in such activities, though there is no evidence to suggest that the beneficiary 
does in fact do so." Counsel continues by setting forth four distinct arguments: (1) the number of employees 
the beneficiary manages is not dispositive of whether or not the position is managerial; (2) the director 
provided an erroneous standard for adjudicating the petition by confusing the definitions of managerial and 
executive capacity; (3) the director overlooked the continued growth and overall mission of the U.S. 
company; and (4) the director's conclusion that the beneficiary would engage in day-to-day activities is 
unsupported by evidence. The AAO will address each of these points in the discussion below. 
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. 
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 burden is on the petitioner to specifically state whether the beneficiary is primarily 
employed in a managerial or executive capacity. 
As previously stated, the initial description of the beneficiary's duties was insufficient. Consequently, the 
director requested additional details regarding the beneficiary's duties and the percentage of time spent on 
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each duty. The petitioner's response further clarified the beneficiary's proposed duties, and explained that the 
beneficiary would devote a large portion of her time overseeing the other employees of the company. The 
response further indicated that the beneficiary would be performing customer service duties since the 
petitioner was not currently distributing goods. The petitioner failed to provide a breakdown in terms of the 
percentage of time she would devote to each duty. 
Whether the beneficiary is a manager 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. In this case, counsel alleges that the beneficiary is a manager by virtue of her position title and 
associated duties. However, the stated duties identified in the record do not substantiate the claims of the 
petitioner and counsel for two reasons. First, the petitioner fails to document what proportion of the 
beneficiary's duties would be managerial or executive functions and what proportion would be 
non-managerial and non-executive. Although the petitioner provided an updated overview of the 
beneficiary's duties while in the U.S., it failed to provide a breakdown of the percentage of time spent on each 
of the identified duties. Consequently, it is impossible to determine, based on the current record, how much 
time the beneficiary will allocate to executive or managerial duties as opposed to the non-qualifying duties. 
The failure to provide this requested information is important because several of the beneficiary's daily tasks, 
such as "visiting and inspecting sites," "manag[ing] all customer service issues," and implementing the 
petitioner's marketing plan by placing advertisements in the media and via the internet do not fall directly 
under traditional managerial duties as defined in the regulations. Despite the director's request for a 
breakdown of the beneficiary's time spent on each duty, the petitioner failed to provide such a breakdown. 
Failure to submit requested evidence that precludes a material line of inquiry shall be grounds for denying the 
petition. 8 C.F.R. $ 103.2(b)(14).' 
Additionally, it appears that the beneficiary is directly responsible for generating the services of the business, 
since visiting and inspecting sites and handling customer services issues are essential services needed to 
establish a company's reputation in the industry and since, by the petitioner's own admission, there are no 
goods currently being distributed, the customer service element of this company must be the main source of 
revenue and prosperity for the petitioner. Therefore, absent evidence to the contrary, the beneficiary is 
directly responsible for generating the petitioner's business and potential sales and, thus, is personally 
ensuring that the petitioner's product andor services penetrate the U.S. market. 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 
' The petitioner also states that the beneficiary "manages finances" for the company. However, the record 
indicates that the petitioner has rendered payment to Service Expenses, Inc., an outside company, for 
bookkeeping expenses. This evidence contradicts the petitioner's claim that the beneficiary handles the 
finances of the company. It is incumbent upon the petitioner to resolve any inconsistencies in the record by 
rndependent objective evidence. Any attempt to explain or reconcile such inconsistencies will not suffice 
unless the petitioner submits competent objectwe evidence pointing to where the truth lies. Matter of Ho, 19 
I&N Dec. 582, 591-92 (BIA 1988). Doubt cast on any aspect of the petitioner's proof may, of course, lead to 
a reevaluation df the reliability and sufficiency of the remaining evidence offered in support of the visa 
petition. Id. at 591. 
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(Comm. 1988). Counsel on appeal alleges that CIS erred in concluding that the beneficiary would be 
performing routine tasks associated with the business operations, and specifically stated that no such evidence 
existed to support this finding. The AAO respectfully notes that counsel's own admissions, both prior to 
adjudication and on appeal, admit that the beneficiary engages in non-qualifying tasks. With no evidence to 
contradict these admissions, the AAO rejects this argument. 
Counsel further alleges that the director's decision was focused exclusively on the small staff employed by the 
petitioner, and that contrary to the director's decision, the small number of employees is not dispositive of 
whether the beneficiary's position is managerial or executive. The AAO disagrees. Although a company's 
size alone, without taking into account the reasonable needs of the organization, may not be the determining 
factor in denying classification as a multinational manager or executive, it is appropriate for Citizenship and 
Immigration Services (CIS) to consider the size of the petitioning company in conjunction with other relevant 
factors, such as a company's small personnel size, the absence of employees who would perform the non- 
managerial or non-executive operations of the company, or a "shell company" that does not conduct business 
in a regular and continuous manner. See 3 101(a)(44)(C) of the Act, 8 U.S.C. 8 llOl(a)(44)(C); see, e.g. 
Systronics Corp. v. INS, 153 F. Supp. 2d 7, 15 (D.D.C. 2001). The size of a company may be especially 
relevant when CIS notes discrepancies in the record and fails to believe that the facts asserted are true. See id. 
As required by section 101(a)(44)(C) of the Act, if 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. To establish 
that the reasonable needs of the organization justify the beneficiary's job duties, the petitioner must 
specifically articulate why those needs are reasonable in light of its overall purpose and stage of development. 
In the present matter, the petitioner has not explained how the reasonable needs of the petitioning enterprise 
justify the beneficiary's performance of non-managerial or non-executive duties, such as performing 
marketing duties and customer service tasks. 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. Comm. 1972). 
Furthermore, the reasonable needs of the petitioner will not supersede the requirement that the beneficiary be 
"primarily" employed in a managerial or executive capacity as required by the statute. See sections 
lOl(a)(44)(A) and (B) of the Act, 8 U.S.C. 8 1101(a)(44). The reasonable needs of the petitioner may justlfy 
a beneficiary who allocates 5 1 percent of his duties to managerial or executive tasks as opposed to 90 percent, 
but those needs will not excuse a beneficiary who spends the majority of his or her time on nonqualifying 
duties. Again, since the petitioner has failed to provide a concise and detailed description of the percentage of 
time devoted by the beneficiary to each of her duties, the AAO cannot conclude that she will be engaged in 
primarily managerial or executive tasks, or alternatively, whether the beneficiary is primarily perform~ng the 
duties of a function manager. See IKEA US, Inc. v. US. Dept. of Justice, 48 F. Supp. 2d 22, 24 (D.D.C. 
1999). The burden is on the petitioner to clearly establish that the beneficiary qualifies as a manager or 
executive. 
Counsel further alleges that CIS overlooked the petitioning entity as a whole, and failed to take into account 
the duties of all employees named in the record. At the time the petition was filed, however, the petitioner 
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only employed one other employee in addition to the beneficiary. Although the petitioner alleges that 
numerous subcontractors work for the company, and the petitioner has since hired other employees and will 
continue to do so, these assertions are misplaced and unpersuasive. 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 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 did not reach the 
point where it could employ the beneficiary in a predominantly managerial or executive position by the end of 
this one-year period. 
Finally, counsel asserts that the director erroneously applied the standard for executive capacity to the 
analysis in reaching the decision in this matter. The policy of CIS is to afford the petitioner the greatest 
chance to conform to the required criteria. Consequently, CIS will routinely examine the beneficiary's duties 
for compliance under both the definition of managerial capacity and executive capacity, in an effort to ensure 
that all possible options have been afforded to the petitioner. This standard yields no prejudice to the 
petitioner or the beneficiary, and consequently, counsel's arguments based on this practice are without merit. 
For the reasons set forth above, the petitioner has failed to establish that the beneficiary's duties are primarily 
managerial or executive in nature. For this reason, the petition may not be approved. 
Beyond the decision of the director, the minimal documentation of the petitioner's business operations raises 
the issue of whether the petitioner is a qualifying organization doing business in the United States. 
Specifically, under the regulation at 8 C.F.R. 4 214.2(1)(1)(ii)(G)(2) a petitioner must demonstrate that it is 
engaged in the regular, systematic, and continuous provision of goods or services and does not represent the 
mere presence of an agent or office in the United States. In this case, the petitioner admits that it is not 
currently distributing goods. No Wher documentation is presented to rebuke this claim, nor is there any 
additional documentation which would establish that the petitioner has in fact been doing business as defined 
by the regulations. Again, as the appeal will be dismissed on other grounds, this issue need not be examined 
further. 
In addition, while not directly addressed by the director, the record reflects that the petitioner did not file the 
petit~on for an extension within the required time frame. The regulation at 8 C.F.R. fj 214.2(1)(14)(i) 
provides, in pertinent part, that a petition extension may be filed only if the validity of the original petition has 
not expired. In the present case, the beneficiary's authorized period of stay expired on February 15, 2003. 
However, the petition for an extension of the beneficiary's L-1A status was filed on February 18, 2003, three 
days following the expiration of the beneficiary's status. Pursuant to 8 C.F.R. 5 214.1(~)(4), an extension of 
stay may not be approved for an applicant who failed to maintain the previously accorded status or where 
such status expired before the application or petition was filed. As the extension petition was not timely filed, 
it is noted for the record that the beneficiary is ineligible for an extension of stay in the United States. 
An appljcation 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 
, SRC 03 097 5 1650 
Page 9 
(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 bask). 
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. § 1361. Here, that burden has not been met. Accordingly, the 
director's decision will be affirmed and the petition will be denied. 
ORDER: The appeal is dismissed.