dismissed L-1A Case: Financial Services

U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. A3042 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
Services 
FILE: SRC 03 070 50926 Office: TEXAS SERVICE CENTER Date: 1, 9 Zof95 
PETITION: Petition for a Nonirnrnigrant Worker Pursuant to Section 101(a)(15)(L) of the Immigration 
and Nationality Act. 8 U.S.C. 5 1101(a)(15)(L) 
3N BEEIAJA? OF PETITIONER: 
This is the decision of the Administrative Appeals Office in your case. A11 documents have been returned to 
the office that originally decided your case. Any further inquiry must be made to that office. 
Robert P. Wiemann, Director 
Administrative Appeals Office 
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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 nonirnrnigrant petition seeking to extend the employment of its president-chief 
executive officer as a nonimrnigrant intracompany transferee pursuant to section 101(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 offers tax and financial services. The petitioner claims that it is the 
subsidiary of the beneficiary's foreign employer, located in Curacao. Netherlands Antilles. The petitioner 
~iow seeks to employ the beneficiary for two years. 
The director denied the petitio~i concluding that the petitioner failed to establish that the beneficiary would be 
employed by the United States entity in a primarily managerial or executive capacity. 
On appeal, counsel claims that Citizenship and Immigration Services (CIS) erred in concluding the 
beneficiary would not be employed in the United States in a primarily managerial or executive capacity. 
Counsel states that as the president and chief executive officer of the petitionins organization, the beneficiary 
meets the regulatory requirements for employnlent in an executive capacity. Counsel submits :i ietter in 
sup~ort of ihe appeal. 
To estdbiish L. 1 eligibility. the petitioner must meet the criteria ctutlined in section lC)!(a)(l5)(L) oT t1.e Act, 3 
U.S.C. lllajj(Lj Specifically, within three years preceding the ber\eficiary's appiicaiion 'or 
admission illto the IJnited States, a qualifying organization must have employed the beneficiary in a 
qualifying managerial or ~xecutive capacity, or in a specialized knowledge capacity, for one corltinuous qear. 
In addition, the beneficiary must seek to enter the United States terrlporarily to continue rentkring his or her 
services to the same employer or a subsidiary or affiliate thereof in a managerial, p,xecutive. or specialized 
knowledge capacity. 
The regulation at 8 C.F.K. 214.2(1)(3) states that an individual petition filed on Form 1-129 shall be 
accompanied by: 
(i) Evidence that the petitioner aud th5 organization which employed or will employ t:le alien are 
qualifyiq organizations as defined in paragraph (l)(l)(ii)(Gj of this section. 
(ii) Evidznce 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. 
i 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 himlher 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: 
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(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 yew 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 management or executive capacity; and 
(E) Evidence of the financial status of the United States operation. 
The issuz in tile present proceeding in whether the beneficiary wouid be employed by the United States entity 
:tn a ?rimarily managerial or exect~tive capacity. 
:~ec:io~i I0 i(a)(44)(A) of the Act, 8 U.S.C. lj 1101 (a)(*)(A), provides: 
'The term "managerial capacity" rneans an hssignment within an organization in which the employee 
(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) Has the authority to hire and fire or recoinmend those as well as other personilel actions 
(such as promotion and leave authorization) if another employee or other employees are directly 
supervised; if no other enlployee 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 -IOl(a)(44)(B) of the Act, 8 U.S.C. 5 1101(a)(44)(B), provides: 
The term "executive capacity" means an assignment within an organization in which the employee 
primarily- 
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(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 !eve1 executives, the boarcl of 
directors, or stockholders of the organization. 
The petitioner filed the nonimrnigrant petition on January 9, 2003 stating that the beneficiary would be 
employed under the extended petition as the corporation's president and chief executive officer and would 
make rill executive decisions related to the petitioner's operations. In an attached letter from the petitioner, 
dated December 18,2002, the petitioner's treasurer stated that the beneficiary was appointed to the position of 
president and chief executive officer as a result of his knowledge of the foreign entity's operations and client 
base and bccanse of his networking abilities. The petitioner provided the following description of the 
beneficiary's pesition: 
hl rhe position of President and Chief Executive Officer of [the petitioning organi:c~tiorl]. [the 
beneficiarj] oversees and makes all execative decision[sl concerning the financial 
pla~ningttax film. He conducts general administration atfairs of the company, zcts ai the 
Zisuson 3nd representative for [the foreign entity1 in the U.S., markets the services of [the 
foreign entity], engages in long-range planning and identifying business opportunities in ?he 
Lr.S., a11d directs the business activities. 
The petitioner stated that the beneficiary would receive an annual salary of $60,000. 
The yetitjoner explained that the beneficiary was needed in the United States in order to carry out the 
petitjoner's "ambitious expansion plans" which include expanding the company's services through marketing 
activities alld by hiring a marketing company. The petitioner also explained that it is presently interviewing a 
candidate for e~r~ployment in the petitioning organization, and stated "we out-source our work to Batelran & 
Coulpany, whose practice we will purchase within the next two to three years." 
'The petitioner provided its organizational chart, which identified the beneficiary as president and chief 
executive officer. The chart reflected that work was outsourced to Bateman and Company, and indicated that 
the beneficiary oversees the management of this business. The petitioner also noted the existence of the 
company's treasurer as subordinate to the beneficiary, and indicated that it was an unpaid and voluntary 
position. The petitioner further noted on the organizational chart the position of the petitioner's proposed 
employee, whose primary task, the petitioner indicated, would be to develop the petitioner's local market. 
The petitioner also noted on the organizational chart that the beneficiary's time would be allocated in the 
fallowing manner: business development, 20-30%; education and instructions, 10%; and management of 
Bateman and Company, 60%. The petitioner noted that the beneficiary's management duties included 
instructing employees on preparing tax returns and performing audits, and managing the day-to-day 
operations of the organization, including bill payment and payroll. 
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The director issued a request for evidence on March 18, 2003 asking that the petitioner submit its employer's 
quarterly tax returns for the years 2002 and 2003 and quarterly wage reports for all employees during this 
time. The director also requested Internal Revenue Service (IRS) Tax Form 1099 for the petitioner's contract 
employees and any evidence demonstrating the hours worked by the contract employees and payment made 
by the petitioner to each contractor. 
Counsel responded in a letter dated May 2,2003, and noted that the petitioner did not employ any workers or 
utilize any contract employees. Counsel explained that rather, Bateman and Company charges the petitioner 
for the time spent by two certified public accountants on its work. Counsel stated that the petitioner pays an 
average of $150.00 per hour for their services and utilizes approximately 10 hours per month. Counsel 
provided the petitioner's balance sheet and profit and loss statement for April 2003, the petitioner's 2001 
corporate income tax return, and employer's quarterly reports for the periods ending September and December 
2002 and March 2003. Counsel also submitted an invoice from Bateman and Company, dated December 3 1, 
2002, for work performed for the petitioner's clients. 
in a decision dated July 24, 2003, the director determined that the petitioner had failed to establish that the 
beneficiary would be employed by the United States entity in a primarily managerial or executive capacity. 
The directcr stated "[tlhe beneficiary evidently exercises discretion ovar the day-to-day operations of the 
activity, but it must be noted that tle also perfoms much of the activity and does not supervise professional 
e11.1ployees." The director also stated that the petitioner did not demonstrate :hat the benericiary would be 
directing Lhe matlagelrlent or' the organization, or that the bzneficiary mould supervise a subordinate staff of 
professional, nanagerial or supervisory employees who ~vould relieve him from performing non-qualifying 
functions of the business. Consequently, the director denied the petition. 
In an appeal filed 011  gust 25, 2003, counsel states that as the president and chief executive oFficer, the 
Serleficiary has been employed and would continue to be employed by the United States entity in a primarily 
managerial or executive capacity. Counsel states that the beneficiary is not the sole employee of the 
vetitioning organization as the petitioner uses contract labor. Counsel claims that the December 2002 invoice 
submitted with the petitioner's response to the director's request for evidence demonstrates the petitioner's use 
of two certified public accountants as contract workers. Counsel states "[als with any President and CEO, 
[the beneficiary] clearly meets the regulatory test of 'executive capacity' and [the] samc should not be re- 
adjudicated on his company's request for an extension of stay." Counsel submits a letter from &he beneficiary 
and a letter from an attorney, which counsel claims verify the beneficiary's employment in an executive 
capacity. 
In the beneficiary's letter, dated August 15, 2003, the beneficiary states: 
As part of my management of the organization, I bring in other professionals, namely CPA's, 
to work for our company on behalf of our U.S. clients. 
As President and CEO, I do not receive any supervision from lower level executives and I 
exercise virtually complete discretion over major decision-making for the company. I am in 
charge of establishing company goals and policies and in that respect, our U.S. company has 
continued to grow and flourish, despite the current poor economy. As the economy begins to 
turn and improve, I see our company growing with the expectation that we can convert 
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I 
contract workers to employees, as our small enterprise continues to make its contribution to 
the U.S. economy. 
On review, the petitioner has not established that the beneficiary would be employed by the United States 
entity in a primarily managerial or executive capacity. 
When a new business is established and commences operations, the regulations recognize that a designated 
manager or executive responsible for setting up operations will be engaged in a variety of activities not 
normally performed by employees at the executive or managerial level and that often the full range of 
manilgerial responsibility cannot be performed. The regulation at 8 C.F.R. 5 214.2(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. In order to qualify for an extension of L-1 nonirnmigrant classification under a 
petition involving a new office, the petitioner must demonstrate through evidence, such as a description of 
both the beneficiary's job duties and the staffing of the organization, that the beneficiary will be employed in 
a primarily managerial or executive capacity. 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. 
When examining the executive or managerial capacitqr of the beneficiary. the AAO wiI1 look fist to th; 
petitionerWs description of the job duties. See 8 C.F.R. 8 214.2(1)(3)jii). As required in thc regulations, the 
( petitioner must submit a detailed description of the executive or managerial services to be performed by the 
beneficiary. Id. Moreover, the definitions of executive and inanagerial capacity have two parts. First, the 
petitioner must show that the beneficiary performs the high level responsibilities that are specified in rhe 
definitions. Second, the petitioner must prove that the beneficiary primarily performs these sp~cified 
responsibilities and does not spend a imjority of his or her time on day-to-day functions. Clzampion \;Vorld, 
inc. v. INS, 940 F.2d 1533 (Table), 1991 WL 144470 (9th Cir. July 30, 1991). 
While the petitioner's description of the beneficiary's job duties includes tasks typically corisidered 
"executive" in nature. the record does not support the claim that the beneficiary would be employed in a 
primarily executive capacity. The petitioner stated that the beneficiary would spend approximately 60% of 
his time overseeing the "hancial planningitax firm," which, although not specifically identified, the AAO 
assumes is Bsteman and Company. The petitioner however, does not provide any documentary evidence 
conclusive~y establishing a business relationship between the petitioning organization and the accounting 
firm, or, more importantly, demonstrating that the beneficiary "oversees and makes all executive decision[s] 
concerning :he financial planningltax fm." The oile invoice provided by the petitioner is not sufficient to 
establish anything more than the petitioner's use of Bateman and Company for services in December 2002. 
The petitioner's financial statements do not reflect payments made for "cost of labor," which would typically 
include contractual services, nor do they identify payroll expenses for anyone other than the beneficiary. The 
petitioner has failed to submit conclusive evidence in support of its assertion that the beneficiary would spend 
the majority of his time exercising executive authority over the financial planningltax firm. Going on record 
without supporting documentary evidence is not sufficient for purposes of meeting the burden of proof in 
I these proceedings. Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm. 1972). 
Additionally. the petitioner's job description indicates that the beneficiary would be performing non- 
qualifying tasks of the petitioning organization. Specifically, the petitioner noted that the beneficiary 
performs "general administration affairs of the company" and markets the foreign entity's services in the 
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United States. Although the petitioner does not specifically indicate the percentage of time the beneficiary 
would spend performing these tasks, it is clear that the beneficiary would dedicate a portion of his time to 
non-managerial and non-executive operations of the business. 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). 
Counsel's claim on appeal that the instant issue of executive capacity "should not be re-adjudicated on his 
company's request for an extension of stay" is misplaced. Counsel fails to recognize that each petition filing 
is a separate proceeding with a separate record. See 8 C.F.R. 5 103.8(d). In making a determination of 
statutory eligibility, CIS is limited to the information contained in that individual record of proceeding. See 8 
C.F.R. 5 103.2(b)(16)(ii). It is therefore impracticable for counsel to suggest that the instant petition should 
not be adjudicated based on the present record. 
Moreover, if the previous nonimmigrant petitions were approved based on the same unsupported and 
contradictory assertions that are contained in the current record, the approval would constitute clear and gross 
error on the part of the director. The AAO is not required to approve applications or petitions where 
eligibility has not been demonstrated, merely because of prior approvals that may have been erroneous. See, 
z. y. hlutter of Church Scientology Zntetnational, 19 I&N Dec. at 597. It would be absurd tq suggest that CIS 
3; any agenzy niust treat acknowledged errors ss binding precedent. Susst..~ Enpg. Ltcl. v. .Ilfontgomery, 825 
T.2d 1084. lO?O (6th Cir. 19871, cert denied. 485 U.S. 1008 (1988). 
I ?'arther~nore. the AAO's authority over the service centers is comparable to the relationship between a court 
3f appeals and a district court. Even if a service center director had approved the nonimmigrant petitions on 
behalf of the beneficiary, the AAO would not be bound to follow the contradictory decision of a service 
center. Louisiana Philharmonic Orchestra v. INS, 2000 WL 282785 (E.D. La.), qfd, 248 F.3d 1139 (5th Cir. 
T'OOl), cert. denied, 122 S.Ct. 5 1 (2001). 
Rased on the foregoing discussion, the petitioner has failed to demonstrate that the beneficiary would be 
employed by the United States entity in a primarily managerial or executive capacity. For this reason, the 
appeal will be dismissed. 
Beyond the decision of the director, the petitioner has not established that the beneficiary was err~ploj'ed 
abroad in a qualifying capacity as required in the regulation at 8 C.F.R. 5 214.2(1)(3)(iv). The petitioner 
stated that the beneficiary was employed as a managing director of the foreign entity and was responsible for 
the day-to-day operations and executive decisions of the business. The petitioner did not provide any 
additional evidence substantiaring its claim that the beneficiary was employed in a managerial or executive 
capacity. 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. at 193. 
-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 1925, 1043 (E.D. Cal. 2001), afd. 345 F.3d 683 
1 (9th Cir. 2003); see also Dor v. INS, 891 F.2d 997, 1002 n. 9 (2d Cir. L989)(noting that the AAO reviews 
appeals on a de novo basis). 
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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. 8 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.