dismissed L-1A Case: Flower Importation

U.S. Department of Homeland Security 
20 Mass, Rm. A3042, 425 I Street, N.W. 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
File: SRC 02 086 50002 Office: TEXAS SERVICE CENTER Date: HA'( 1 3 2m 
Petition: Petition for a Nonimmigrant Worker Pursuant to Section 10 1 (a)(l5)(L) of the Immigration 
and Nationality Act, 8 U.S.C. 5 1 101(a)(15)(L) 
IN BEHALF OF PETITIONER: 
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. 
L 
SRC 02 086 50002 
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 the general manager of 
its U.S. subsidiary as an L- 1A nonimmigrant intracompany transferee pursuant to section 10 1 (a)(l5)(L) of the 
Immigration and Nationality Act (the Act), 8 U.S.C. 5 1 lOl(a)(lS)(L). The petitioner is a Colombian 
corporation that is engaged in the business of flower importation and wholesale distribution through its U.S. 
subsidiary, Macarena Gardens, Inc., a corporation organized in the State of Florida. 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 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 his denial of the petition. Counsel submitted a brief but no additional evidence. 
To establish eligibility for the L-1 nonimmigrant visa classification, the petitioner must meet the criteria 
outlined in section 101(a)(15)(L) of the Act. Specifically, a qualifying organization must have employed the 
beneficiary in a qualifying managerial or executive capacity, or in a specialized knowledge capacity, for one 
continuous year within three years preceding the beneficiary's application for admission into the United 
States. In addition, the beneficiary must seek to enter the United States temporarily to continue rendering his 
or her services to the same employer or a subsidiary or affiliate thereof in a managerial, executive, or 
specialized knowledge capacity. 
The regulation at 8 C.F.R. 5 214.2(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 himlher to perform the intended 
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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. 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 1-1 29, accompanied by the following: 
(A) Evidence that the United States and foreign entities are still qualifying organizations 
as defined in paragraph (I)(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 management 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 
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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 101(a)(44)(B) of the Act, 8 U.S.C. 9 1 I01 (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. 
On the Form 1-129, the petitioner stated that the beneficiary's "position as general manager is the key to 
control all operations of the U.S. subsidiary. He is responsible for organizing, directing and developing the 
company, as well as overseeing U.S. operations and hire/fire employees." In a letter accompanying the initial 
petition, the petitioner further described the beneficiary's job duties as follows: 
1. Formulating and implementing company policies. 
2. Establishing sales prices of merchandise. 
3. Developing marketing strategies. 
4. Reviewing performance of salespeople. 
5. Recommend hiring and firing salespeople. 
6. Coordinating the credit and accounting departments. 
On March 5, 2002, the director requested additional evidence. Specifically, the director requested a list of all 
current employees of the U.S. entity, with their job titles, and the 2001 corporate tax return of the U.S. entity. 
In response, counsel for the petitioner submitted an organizational chart indicating that in addition to the 
beneficiary, the U.S. entity has three other employees -- an accountant~comptroller, a distribution warehouse 
manager, and one other employee who has no title. Counsel also submitted the Internal Revenue Service 
(IRS) Forms W-4 for all four employees for the year 2001. In addition, rather than the 2001 corporate tax 
return of the U.S. entity, counsel submitted the 2000 tax return, with a letter from the accountant of the U.S. 
entity, certifying that at the time of the response, the U.S. entity was not yet required to file a tax return for the 
year 200 1. 
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On May 10, 2002, the director denied the petition. The director determined that the petitioner has not 
demonstrated that the beneficiary manages or directs the management of a department, subdivision, function, 
or component of the organization, or that the beneficiary would be involved in the supervision and control of 
the work of other supervisory, professional or managerial employees who would relieve him from performing 
directly the services of the business. Moreover, the director found that the business has not yet expanded to 
the point where the services of a full-time, bona fide general manager would be required, and the majority of 
the beneficiary's work time would be spent in the nonmanagerial, day-to-day operations of the business. The 
director also noted that although the petitioner indicated that the U.S. entity plans to hire more employees in 
the future, such petition must be adjudicated based on the conditions of the U.S. employer at the time the 
petition was filed. The director concluded that the petitioner has failed to show that the beneficiary would be 
employed by the U.S entity in a primarily managerial capacity. 
On appeal, counsel for the petitioner asserts that the director erred in her denial of the petition "because the 
evidence shows that the beneficiary will manage and direct the management of a Department, Subdivision, 
function, or component of the Organization. Also, the beneficiary will be involved in the supervision and 
control of the work of other supervisory, professional and managerial employees who will relieve him from 
performing the services of the business." In his brief, counsel further described the current operations of the 
U.S. entity and elaborated upon the previous description of the job responsibilities of the beneficiary within 
the U.S. entity. However, no further evidence was submitted in support of these assertions by counsel on 
appeal. 
Upon review, the record is not persuasive in demonstrating that the beneficiary would be employed by the 
U.S. entity in a primarily managerial or executive capacity. 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. 5 214.2(1)(3)(ii). The petitioner's description of the job duties must clearly describe the duties to be 
performed by the beneficiary and indicate whether such duties are either in an executive or managerial 
capacity. Id. The petitioner must specifically state whether the beneficiary is primarily employed in a 
managerial or executive capacity. 
On review, the petitioner has provided a vague and nonspecific description of the beneficiary's duties that 
fails to demonstrate what the beneficiary does on a day-to-day basis. For example, the petitioner states that 
the beneficiary's duties include "formulating and implementing company policies, "establishing sales prices 
of merchandise," "developing marketing strategies," "reviewing perf~rmance of salespeople," "recommend 
hiring and firing salespeople, and "coordinating the credit and accounting departments." The petitioner did 
not, however, define the policies and strategies of the U.S. entity, nor is there any indication in the record that 
the U.S. entity employs salespeople or has employees in the "credit and accounting departments." 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). 
Specifics are clearly an important indication of whether a beneficiary's duties are primarily executive or 
managerial in nature. General and conclusory assertions regarding the beneficiary's employment capacity are 
not sufficient to meet the petitioner's burden of proof. 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. 
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1 103, 1 I08 (E.D.N.Y. 1989), aff'd, 905 F. 2d 4 1 (2d. Cir. 1990); Avyr Associates Inc. v. Meissner, 1997 WL 
188942 at *5 (S.D.N.Y.). 
Moreover, as noted earlier, even though the petitioner claims that the beneficiary "is responsible for 
organizing, directing, and developing the company, as well as overseeing U.S. operations" including sales, 
marketing, and credit and accounting, there is no evidence in the record that the beneficiary's subordinate 
employees, rather than the beneficiary himself, actually perform operational functions such as sales and 
marketing. Thus, either the beneficiary himself is performing these functions, or he does not actually manage 
these fbnctions as claimed by the petitioner. In either case, the AAO is left to question the validity 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 of Ho, 19 I&N Dec. 582, 591 (BIA 1988). If the 
beneficiary is directly performing the operational fbnctions of the U.S. entity, the AAO 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). 
The AAO notes that on appeal, counsel attempts to describe in greater detail the responsibilities of the 
beneficiary, and to attribute some of the day-to-day operational responsibilities to the other three employees 
of the U.S. entity. However, as noted earlier, the record before the director was insufficient to establish that 
the beneficiary would be employed in a primarily managerial or executive capacity, and no further evidence 
has been submitted in support of counsel's assertions on appeal. Without documentary evidence to support 
the claim, the assertions of counsel will not satisfy the petitioner's burden of proof. The assertions of counsel 
do not constitute evidence. Matter of Obaigbena, 19 I&N Dec. 533, 534 (BIA 1988); Matter of luureano, 19 
I&N Dec. 1 (BIA 1 983); Matter of Ramirez-Sanchez, 17 I&N Dec. 503, 506 (BIA 1 980). 
Finally, the AAO notes that the petitioner indicated in its response to the director's request for further 
evidence that the U.S. entity is in the process of further expanding its operations and plans to hire additional 
low level and intermediate level employees in the future. Counsel also claims on appeal that the beneficiary 
will be involved in the supervision and control of the work of other supervisory, professional and managerial 
employees who will relieve him from performing the services of the business. Counsel asserts that the future 
structure of the company will include three professional-level division heads, all reporting directly to the 
beneficiary, each of whom will supervise junior employees in day-to-day functions of the company. 
However, the record indicates that at the time this petition was filed, none of these supervisory, professional 
and managerial employees, or the contemplated junior employees who would report to them, were in place. 
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 ofMichelin Tire Corp., 17 I&N Dec. 248 (Reg. Comm. 1978). Furthermore, the regulation at 
8 C.F.R. tj 2 14.2(1)(3)(v)(C) allows the intended United States operation one year within the date of approval 
of the petition to support an executive or managerial position. There is no provision in Citizenship and 
Immigration Services (CIS) regulations that allows for an extension of this one-year period. If the business is 
not sufficiently operational after one year, the petitioner is ineligible by regulation for an extension. In the 
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instant matter, the petitioner has not shown that, at the time the petition was filed, the U.S. entity has reached 
the point that it can employ the beneficiary in a predominantly managerial or executive position. 
Accordingly, the AAO agrees with the director's determination that the petitioner has not established that the 
beneficiary would be employed in a primarily or managerial capacity by the U.S. entity, as required by 8 
C.F.R. 5 214.2(1)(3). 
Beyond the decision of the director, the petitioner has not provided sufficient evidence that the United States 
and foreign entities are still qualifying organizations, as required by 8 C.F.R. 5 214.2(1)(14)(ii)(A). The 
regulations and case law confirm that ownership and control are the factors that must be examined in 
determining whether a qualifying relationship exists between U.S. and foreign entities for purposes of this 
visa classification. Matter of Church Scientology International, supra; see also Matter of Siemens Medical 
Systems, Inc., 19 I&N Dec. 362 (BIA 1986); Matter of Hughes, 18 I&N Dec. 289 (Comm. 1982). In context 
of this visa petition, ownership refers to the direct or indirect legal right of possession of the assets of an 
entity with full power and authority to control; control means the direct or indirect legal right and authority to 
direct the establishment, management, and operations of an entity. Matter of Church Scientology 
International, supra at 595. The petitioner indicated on the Form 1-129 that the foreign entity owns 52% of 
the U.S. entity, the beneficiary owns 20%, and the remaining 28% is owned by an entity callem 
The record contains only one other document pertaining to the ownership in the U.S. entity, namely 
an unsigned copy of the minutes of the organizational meeting on August 11, 2000, indicating that the board 
resolved to issue 10,000 shares of the company's common stock - 5,200 to the foreign entity, 2,800 to 
A - - 
and 2,000 to the beneficiary. However, the petitioner has failed to provide any other 
share certificates and share ledger of the U.S. entity, to show that the shares were 
actually issued as indicated, or that the percentage of ownership in the U.S. entity has not changed since that 
time. Without full disclosure of all relevant documents. the AAO is unable to determine the elements of 
ownership and control. 
For the foregoing additional reason, the appeal must be dismissed. 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), afd. 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 29 1 of the Act, 8 U.S.C. 136 1. 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.