dismissed L-1A Case: Furniture

Identifying ddeted to 
didy wwamnted 
invasion ofpersoaal privacy 
U.S. Department of Homeland Security 
20 Massachusetts Ave., N.W., Rm. 3000 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
File: WAC 05 007 5 1597 Office: CALIFORNIA SERVICE CENTER Date: MAY 2 0 2008 
Petition: 
 Petition for a Nonimmigrant Worker Pursuant to Section 10 1 (a)(15)(L) of the Immigration 
and Nationality Act, 8 U.S.C. 4 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. 
'L4& Pobert P. Wiemann, 
dministrative ~~~kals Office 
B 
WAC 05 007 5 1597 
Page 2 
DISCUSSION: The Director, California 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 visa petition seeking to extend the employment of its president as an L- 
1 A nonimmigrant intracompany transferee pursuant to section 1 O 1 (a)(15)(L) of the Immigration and 
Nationality Act (the Act), 8 U.S.C. 
 1101(a)(15)(L). The original petition (WAC 02 282 52414) was 
approved to allow the beneficiary to open a new office in the United States. The petitioner is a corporation 
organized under the laws of the State of California and is allegedly in the furniture business. 
The director denied the petition concluding that the petitioner did not establish: (1) that it and the foreign 
employer are qualifying organizations; or (2) that the beneficiary will 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 to the petitioner asserts that the director 
erred, that it and the foreign employer are "affiliates" controlled by the same group of individuals, and that the 
beneficiary's duties will primarily be those of an executive. Counsel also argues that the director failed to 
follow Citizenship and Immigration Services (CIS) policy pertaining to petition extensions. 
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 himher to perform the intended 
services in the United States; however, the work in the United States need not be the 
WAC 05 007 5 1597 
Page 3 
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: 
(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 (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 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 first issue is the present matter is whether the petitioner has established that it still has a qualifying 
relationship with the foreign employer. 
The regulation at 8 C.F.R. 8 214.2(1)(3)(i) states that a petition filed on Fonn 1-129 shall be accompanied by 
"[elvidence that the petitioner and the organization which employed or will employ the alien are qualifying 
organizations." Title 8 C.F.R. 9 214.2(1)(l)(ii)(G) defines a "qualifying organization" as a firm, corporation, 
or other legal entity which "meets exactly one of the qualifying relationships specified in the definitions of a 
parent, branch, affiliate or subsidiary specified in paragraph (l)(l)(ii) of this section" and "is or will be doing 
business." "Affiliate" is defined in pertinent part as "[olne of two legal entities owned and controlled by the same 
group of individuals, each individual owning and controlling approximately the same share or proportion of each 
entity.' 8 C.F.R. 9 214.2(1)(l)(ii)(L)(d). "Doing business" is defined in part as "the regular, systematic, and 
continuous provision of goods andlor services." 8 C.F.R. 9 214.2(1)(l)(ii)(H). 
In this matter, the petitioner asserts that it is an "affiliate" of the foreign employer. In support, the petitioner 
describes the ownership and control of each entity in a letter dated October 3,2004 as follows: 
[Tlhe majority owners or shareholders of the foreign corporation are members of the 
family, namely: 
Stockholder Shares Subscribed Amount 
WAC 05 007 5 1597 
Page 4 
The same is true with the U.S. corporation as shown by the stock certificates of the U.S. 
corporation [citation omitted], to wit: 
Stockholder Shares Subscribed 
On March 17,2005, the director denied the petition. The director concluded that the petitioner failed to establish 
that it has a qualifying relationship with the foreign employer. 
On appeal, counsel asserts that the record establishes that the two entities are "affiliates" as defined in the 
regulations. Specifically, counsel argues that both entities are owned and controlled by the same group of 
individuals, namely and. Counsel also claims that the petitioner 
will submit a "voting shares agreement" as additional evidence. 
Upon review, counsel's assertions are not persuasive. 
The regulation and case law confirm that ownership and control are the factors that must be examined in 
determining whether a qualifying relationship exists between United States and foreign entities for purposes 
of this visa classification. Matter of Church Scientology International, 19 I&N Dec. 593 (Comm. 1988); 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 the 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, 19 I&N Dec. at 595. 
In this matter, the petitioner and the foreign employer do not share common ownership and control and, 
therefore, are not "qualifying organizations." First, while the beneficiary appears to own a 66.7% interest in 
the petitioner, he only appears to own either a 4% interest, or a 24% interest, in the foreign employer.' 
'1t is noted that the director stated in his decision that the beneficiary owns 100 shares of the foreign 
employer, or a 4% interest. On appeal, counsel asserts that the beneficiary actually owns 600 shares and that 
the director failed to consider other evidence in the record, such as the foreign employer's amended articles of 
incorporation and its "general information sheet," which purportedly indicate that the beneficiary's interest has 
increased from 100 shares to 600 shares. Upon review, it is noted that the record does not contain enough 
information for CIS to deduce with any certainty the exact size of the beneficiary's ownership interest. The 
record is devoid of evidence clearly establishing when and how the beneficiary was issued his alleged 600 
WAC 05 007 51597 
Page 5 
Accordingly, the beneficiary appears to control the petitioner but does not have similar control over the 
foreign employer. Therefore, the petition may not be approved for this rea~on.~ 
Second, it appears that counsel is asserting that the organizations are qualifying because the beneficiary and 
his family collectively own and control both entities. However, this familial relationship does not constitute a 
qualifying relationship under the regulations. If counsel is claiming that the beneficiary essentially controls 
the foreign employer through his family, and that his family owns and controls the petitioner through the 
beneficiary, it must be established that the parties have gained de facto control. In order to establish de facto 
control, the petitioner must provide agreements relating to the control of a majority of the shares' voting rights 
through proxy agreements. Matter of Hughes, 18 I&N Dec. at 293. A proxy agreement is a legal contract 
that allows one individual to act as a substitute and vote the shares of another shareholder. See Black's Law 
Dictionaly 1241 (7th Ed. 1999). As the record in this matter is devoid of evidence establishing that the 
minority shareholders "control" either entity, the petitioner, which appears to be 66.7% owned by the 
beneficiary, has not established that it has a qualifying relationship with the foreign employer.3 
Third, the petitioner and the foreign employer do not share ownership and control because each individual does 
not own and control "approximately the same share or proportion of each entity." 8 C.F.R. tj 214.2(1)(l)(ii)(L)(2). 
For example, the beneficiary appears to owns 66.7% of the petitioner and either 496, or 24%, of the foreign 
. appears to own 33.3% of the petitioner and 25% of the foreign employer. 
o stock in the petitioner but owns 38% of the foreign employer. According to 
the record, a total of 56% of the foreign employer's stock is owned by persons who do not have an ownership 
interest in the petitioner. Therefore, as each individual does not own and control approximately the same share or 
proportion of each entity, the entities are not qualifying organizations. The beneficiary appears to own and 
control the petitioner as the 66.7% owner but does not exert similar control over the foreign employer. 
shares. However, given that neither 100 shares nor 600 shares constitute a controlling interest in the foreign 
employer, the AAO need not further consider this matter. 
2 
Also, as the record contains unresolved inconsistencies pertaining to the beneficiary's claimed ownership and 
control of the petitioner, the record fails to persuasively establish the petitioner's ownership and control. For 
example, the petitioner claims in its California tax returns that no single interest owns 50% or more of the 
petitioner. However, the petitioner claims in the petition to be 66.7% owned by the beneficiary. The record 
is devoid of evidence addressing this inconsistency pertaining to the petitioner's true ownership and control. 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. 582, 591- 
92 (BIA 1988). 
3 
It is noted that counsel claims in her brief that a "voting shares agreement" would be submitted for the 
record. However, as the record is devoid of this claimed evidence, it does not appear as if the petitioner has 
ever submitted a "voting shares agreement." Accordingly, the appeal will be adjudicated based on the 
evidence submitted to the director. 
WAC 05 007 5 1597 
Page 6 
Furthermore, the petitioner has failed to establish that the foreign employer is a qualifying organization 
because the petition is not persuasive in establishing that the foreign employer is currently "doing business" as 
defined by the regulations. The record is devoid of objective evidence from 2004 establishing that the foreign 
employer is engaged in the regular, systematic, and continuous provision of a good or service. All invoices 
and other objective evidence are fiom previous years. Going on record without supporting documentary 
evidence is not sufficient for purposes of meeting the burden of proof in these proceedings. Matter of Sof$ci, 
22 I&N Dec. 158, 165 (Comm. 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. 
Comm. 1972)). 
Accordingly, as the petitioner has failed to establish that it and the foreign employer are qualifying 
organization, the petition may not be approved. 
The second issue in the present 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 
(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. tj 1101(a)(44)(B), defines the tern "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; 
WAC 05 007 5 1597 
Page 7 
(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 petitioner does not clarify in the initial petition whether the beneficiary will primarily perform managerial 
duties under section 101 (a)(44)(A) of the Act, or primarily executive duties under section 10 1 (a)(44)(B) of 
the Act, although counsel on appeal appears to limit the beneficiary to the executive classification. Given the 
lack of clarity, the AAO will assume that the petitioner is claiming that the beneficiary will be employed in 
either an executive or a managerial capacity and will consider both classifications. 
The petitioner describes the beneficiary's proposed duties in a letter dated October 3,2004 as follows: 
This position requires [the beneficiary] to: (1) develop organizational management plans; (2) 
develop marketing strategies; (3) develop business and market entry plans; (4) directing the 
preparation of necessary feasibility studies, including site analysis, competition analysis, 
pricing and market acceptance; (5) identifying and coordinating materials and equipment 
suppliers to meet with high quality manufacturing and service standards of the company; (6) 
coordinating with designers and clients to come up [with] updated and contemporary designs; 
(7) managing and overseeing manufacturing, designing, refurbishing, servicing of furniture 
and accessories; (8) [flormulate policies and objectives pursuant to the business purposes of 
the company. 
Although the petitioner claims to employ two people in the Form 1-129, the petitioner submitted an 
organizational chart describing the operation as a multi-tiered organization involving 12 existing or 
prospective staff workers. 
On November 26, 2004, the director requested additional evidence. The director requested, inter alia, a more 
detailed organizational chart for the United States operation, a more detailed description of the beneficiary's 
proposed duties, descriptions of the duties of the beneficiary's subordinate employees, and quarterly wage 
reports. 
In response, the petitioner submitted a letter dated February 14, 2005 in which it further describes the 
beneficiary's proposed duties as follows: 
[Dlevelop organizational management plans. Develop marketing strategies. Develop 
business and market entry plans. Set up organizational structure. Set up work flow for the 
company to ensure smooth operations and ensure high quality of work. Lay the basis for the 
groundwork for setting up the institutional structures of the company. Direct the preparation 
of necessary feasibility studies, including site analysis, competition analysis, pricing and 
market acceptance. Formulate policies and objectives pursuant to the business purposes of 
the company. (40%)[.] 
[Ildentify and coordinate materials and equipment suppliers to meet with high quality 
WAC 05 007 5 1597 
Page 8 
manufacturing and service standards of the company. (20%)[.] 
[Cloordinate with designers and clients to come up with updated and contemporary designs. 
Market designs performed by the parent company for eventual production in the US. (20%)[.] 
[Cloordinate with the Vice president for production in the management and overseeing of the 
manufacturing, designing, refurbishing, servicing of furniture and accessories of the 
company. (20%)[.] 
The petitioner also describes its current and prospective staffing as follows: 
The company presently has a total of four (4) employees. Out of the four (4) employees, two 
(2) presently works [sic] for the company on a regular basis while the two other employees 
are independent contractors. The company plans to hire a projected total number of ten (10) 
employees. 
The regular employees we presently have are as follows: 
1. 
 [The beneficiary] who acts as the President of the US company. He is currently 
under L 1 A status. 
who presently acts as the company's Vice President for Production. 
is a legal permanent resident and is a holder of a bachelor[']s degree in 
2. 1 
mechanical engineering. 
 performs the following duties for the company: 
"Plans, directs, and coordinates the work activities necessary for manufacturing 
products in accordance with cost, quality and quantity specifications of the company. 
Coordinates with the independent contractors to ensure that deadlines of job orders 
are met. In charge of ~urchase and inventorv su~~lies and raw materials." 
- .L 
3. 
 is one of the company's independent contractor[s]. He is not a 
degree holder and is in charge of all our upholstery works. He is a permanent 
resident. 
4. 
 is one of the company's independent contractor[s]. She is not a degree 
holder and is in charge of our window coverings. She is a permanent resident. 
The petitioner also submitted an organizational chart for the United States operation. The chart shows the 
beneficiary at the top of a complex, multi-tiered organization directly or indirectly supervising nine positions. 
However, six of the positions appear to be vacant. Consequently, the chart indicates that the beneficiary 
currently supervises the vice president for production who, in turn, supervises the two independent 
contractors. 
Finally, the petitioner submitted its California quarterly wage report for the fourth quarter of 2004. This 
report indicates that the petitioner employed one person, the beneficiary, in October, November, and 
December 2004. The instant petition was filed on October 7, 2004. The petitioner offers no explanation for 
why it claimed to employ 
 in both the initial petition and in its response to the Request for 
Evidence when it appears 
 was not employed at the time the petition was filed. Furthermore, 
WAC 05 007 5 1597 
Page 9 
while the petitioner claims to employ two independent contractors, the record is devoid of evidence 
addressing the number of hours worked by these individuals, how much compensation, if any, was paid to the 
contractors, the degree of control exerted by the petitioner over their work performance, or the likelihood that 
these contractors will perform services in the future and, if so, to what degree. 
On March 17, 2005, the director denied the petition. The director concluded that the petitioner failed to 
establish that the beneficiary will be employed primarily in a managerial or executive capacity. 
On appeal, counsel asserts that the beneficiary's duties are primarily those of an executive. 
Upon review, counsel's assertions are not persuasive. 
Title 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 administrative tasks, the petitioner is 
ineligible by regulation for an extension. The petitioner's plans to expand its business or to hire additional 
staff members may not be used to establish that the beneficiary will be employed in a managerial or executive 
duty at the time the instant petition was filed. The petitioner must establish eligibility at the time of filing the 
nonimmigrant visa petition. A visa petition may not be approved based on speculation of future eligibility or 
after the petitioner or beneficiary becomes eligible under a new set of facts. See Matter of Michelin Tire 
Corp., 17 I&N Dec. 248 (Reg. Comm. 1978); Matter of Katigbak, 14 I&N Dec. 45, 49 (Comm. 1971). 
Accordingly, the petitioner's employment, or planned employment, of additional staff members is not relevant 
to the AAO's consideration of the instant petition. Based on the payroll records pertaining to the time period 
in which the instant petition was filed, it appears that the beneficiary was the only employee of the United 
States operation. Therefore, as further explained below, the petitioner's business has not reached the point 
that it can employ the beneficiary in a predominantly managerial or executive position. 
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. 
In this matter, the petitioner's description of the beneficiary's job duties fails to establish that the beneficiary 
will act in a "managerial" or "executive" capacity. In support of the petition, the petitioner has submitted a 
vague and non-specific job description which fails to sufficiently describe what the beneficiary will do on a 
day-to-day basis. For example, the petitioner states that the beneficiary will develop plans, marketing 
strategies, structures, policies, and objectives. However, the petitioner does not specifically define any of 
these plans, marketing strategies, structures, policies, and objectives. Furthermore, general managerial- 
sounding duties and an inflated job title are not probative of the beneficiary actually performing qualifying 
duties. Specifics are clearly an important indication of whether a beneficiary's duties will be primarily 
executive or managerial in nature; otherwise meeting the definitions would simply be a matter of reiterating 
the regulations. Fedin Bros. Co., Ltd. v. Suva, 724 F. Supp. 1 103 (E.D.N.Y. 1989), aff'd, 905 F.2d 41 (2d. 
Cir. 1990). Going on record without supporting documentary evidence is not sufficient for purposes of 
WAC 05 007 5 1597 
Page 10 
meeting the burden of proof in these proceedings. Matter of Treasure Craji of California, 14 I&N Dec. 190. 
Consequently, the petitioner has not established that the beneficiary will primarily perform managerial or 
executive duties as its "president" and principal owner. To the contrary, it appears more likely than not that 
the beneficiary will primarily perform non-qualifying administrative or operational tasks inherent to the 
operation of a one-employee furniture upholstery business. First, in addition to being vague, the job duties 
ascribed to beneficiary appear to concern primarily non-qualifying tasks and not managerial or executive 
duties. For example, the petitioner claims that the beneficiary will devote most of his time to working with 
suppliers, designers, and clients, performing marketing tasks, and "coordinating" the company's services with 
the vice president of production. However, not only is the record not persuasive in establishing that the 
beneficiary's "coordination" of the company's services constitutes a qualifying duty, the remaining tasks, e.g., 
marketing and customer relations, appear to be tasks necessary to the petitioner's provision of a service or the 
production of a product. 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 International, 19 I&N Dec. at 604. 
Second, and as discussed by the director, the record is not persuasive in establishing that the beneficiary will 
be relieved of the need to perform the non-qualifying tasks inherent to the petitioner's business by a 
subordinate staff. As discussed above, the record indicates that the beneficiary is the petitioner's sole 
employee. While the petitioner claims that the beneficiary is relieved of the need to perform non-qualifying 
tasks by "independent contractors," the record fails to persuasively establish that these contractors will truly 
relieve the beneficiary of the need to perform non-qualifying tasks. The record is devoid of evidence 
addressing the number of hours worked by these contractors, how much compensation, if any, will be paid to 
them, the degree of control exerted by the petitioner over the contractors' work performance, or the likelihood 
that the contractors will perform services in the future and, if so, to what degree. Once again, going on record 
without supporting documentary evidence is not sufficient for purposes of meeting the burden of proof in 
these proceedings. Matter of Treasure Craji of Callfornia, 14 I&N Dec. 190. 
 Moreover, even if the 
contractors were established to perform certain operational tasks such as upholstering furniture, the record 
does not address who, other than the beneficiary, will perform those other administrative tasks inherent to the 
operation of any small business, e.g., processing accounts receivable and accounts payable, performing 
advertising tasks, and answering the telephone. Accordingly, it has not been established that the beneficiary 
will be "primarily" employed as a manager or an executive. 
The petitioner has also failed to establish that the beneficiary will supervise and control the work of other 
supervisory, managerial, or professional employees, or will manage an essential function of the organization. 
As indicated in the record, the beneficiary is the petitioner's sole employee. Furthermore, even if it were 
established that the vice president for production was employed at the time the petition was filed, this 
worker's vague job description fails to establish that he is truly a managerial, supervisory, or professional 
employee. Once again, going on record without supporting documentary evidence is not sufficient for 
purposes of meeting the burden of proof in these proceedings. Id. An employee will not be considered to be 
a supervisor simply because of a job title, because he or she is arbitrarily placed on an organizational chart in 
a position superior to another employee, or even because he or she supervises daily work activities and 
WAC 05 007 51597 
Page 11 
assignments. Rather, the employee must be shown to possess some significant degree of control or authority 
over the employment of subordinates. 
Given the size and nature of the petitioner's business, it is more likely than not that the beneficiary and his 
proposed subordinates will all primarily perform the tasks necessary to the operation of the business. See 
generally Family, Inc. v. US. Citizenship and Immigration Services, 469 F.3d 1313 (9th Cir. 2006). 
Therefore, it appears that the beneficiary will be, at most, a first-line supervisor of a non-professional 
employee or independent contractor. A managerial or executive employee must have authority over day-to- 
day operations beyond the level normally vested in a first-line supervisor. See 101(a)(44) of the Act; see also 
Matter of Church Scientology International, 19 I&N Dec. at 604. Finally, as the petitioner failed to establish 
the skills required to perform the duties of the subordinate positions, the petitioner has not established that the 
beneficiary will manage professional employees.4 Therefore, the petitioner has not established that the 
beneficiary will be employed primarily in a managerial capacity.' 
4 
In evaluating whether the beneficiary will manage 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. tj 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 I&N Dec. 35 (R.C. 1968); 
Matter of Shin, 11 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 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 established 
that a bachelor's degree is actually necessary to perform the duties of the vice president for production. 
5 
While the petitioner has not argued that the beneficiary will manage an essential function of the organization, 
the record nevertheless would not support this position even if taken. The term "function manager" applies 
generally when a beneficiary does not supervise or control the work of a subordinate staff but instead is 
primarily responsible for managing an "essential function" within the organization. See section 
101(a)(44)(A)(ii) of the Act. The term "essential function" is not defined by statute or regulation. If a 
petitioner claims that the beneficiary is managing an essential function, the petitioner must furnish a written 
job offer that clearly describes the duties to be performed in managing the essential function, i.e., identify the 
function with specificity, articulate the essential nature of the function, and establish the proportion of the 
beneficiary's daily duties attributed to managing the essential function. See 8 C.F.R. 5 214.2(1)(3)(ii). In 
addition, the petitioner's description of the beneficiary's daily duties must demonstrate that the beneficiary 
manages the function rather than performs the duties related to the function. In this matter, the petitioner has 
not provided evidence that the beneficiary will manage an essential function. The petitioner's vague job 
description fails to document that the beneficiary's duties will be primarily managerial. Also, as explained 
above, the record establishes that the beneficiary will primarily be a first-line supervisor of non-professional 
employees and/or will perform non-qualifying operational or administrative tasks. Absent a clear and 
credible breakdown of the time spent by the beneficiary performing his duties, the AAO cannot determine 
WAC 05 007 5 1597 
Page 12 
Similarly, the petitioner has failed to establish that the beneficiary will act in an "executive" capacity. The 
statutory definition of the term "executive capacity" focuses on a person's elevated position within a complex 
organizational hierarchy, including major components or functions of the organization, and that person's 
authority to direct the organization. Section 101(a)(44)(B) of the Act. Under the statute, a beneficiary must 
have the ability to "direct the management" and "establish the goals and policies" of that organization. 
Inherent to the definition, the organization must have a subordinate level of employees for the beneficiary to 
direct, and the beneficiary must primarily focus on the broad goals and policies of the organization rather than 
the day-to-day operations of the enterprise. An individual will not be deemed an executive under the statute 
simply because they have an executive title or because they "direct" the enterprise as the owner or sole 
managerial employee. The beneficiary must also exercise "wide latitude in discretionary decision making" 
and receive only "general supervision or direction from higher level executives, the board of directors, or 
stockholders of the organization." Id. For the same reasons indicated above, the petitioner has failed to 
establish that the beneficiary will act primarily in an executive capacity. The job description provided for the 
beneficiary is so vague that the AAO cannot deduce what the beneficiary will do on a day-to-day basis. 
Moreover, as explained above, it appears that the beneficiary will be primarily employed as a first-line 
supervisor and will perform the tasks necessary to produce a product or to provide a service. Therefore, the 
petitioner has not established that the beneficiary will be employed primarily in an executive capacity. 
In reviewing the relevance of the number of employees a petitioner has, federal courts have generally agreed 
that CIS "may properly consider an organization's small size as one factor in assessing whether its operations 
are substantial enough to support a manager." Family, Inc. v. U.S. Citizenship and Immigration Services, 469 
F.3d at 1316 (citing with approval Republic of Transkei v. INS, 923 F.2d 175, 178 (D.C. Cir. 1991); Fedin 
Bros. Co. v. Suva, 905 F.2d 41,42 (2d Cir. 1990) (per curiam)); Q Data Consulting, Inc. v. INS, 293 F. Supp. 
2d 25, 29 (D.D.C. 2003). Furthermore, it is appropriate for 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, 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. Id. 
Finally, and in addition to those issues addressed above, counsel argues on appeal that the director failed to 
follow CIS policy pertaining to petition extensions. This guidance appears in a 1994 memorandum, which 
outlines the process by which an adjudicator, during the adjudication of a subsequent request for petition 
extension, may question another adjudicator's prior approval of a nonimmigrant petition where there has been 
no material change in the underlying facts. Specifically, this Memorandum states that adjudicators should 
give deference to prior approvals involving the same underlying facts except where: (1) it is determined that 
there was a material error with regard to the previous petition approval; (2) a substantial change in 
circumstances has taken place; or (3) there is new material information that adversely impacts the petitioner's 
or beneficiary's eligibility. Memo. From William R. Yates, Associate Director for Operations, to Service 
Center Directors, The Signijcance of a Prior CIS Approval of a Nonirnmigrant Petition in the Context of a 
what proportion of his duties will be managerial, nor can it deduce whether the beneficiary will primarily 
perform the duties of a function manager. See IKEA US, Inc. v. U.S. Dept. of Justice, 48 F. Supp. 2d 22, 24 
(D.D.C. 1999). 
WAC 05 007 5 1597 
Page 13 
Subsequent Determination Regarding Eligibility for Extension of Petition Validity (April 23, 2004). The 
Memorandum also states that the adjudicator should clearly articulate the material error, changed 
circumstances, or new material information in his or her decision. Id. 
However, counsel's assertion is not persuasive for three reasons. 
 First, the Memorandum specifically 
excludes L-1A new office extension petitions from the restrictions placed on adjudicators in denying an 
extension petition. Id. at 2, Note 1. Second, this Memorandum limits its authority on page 4 and does not 
vest petitioner with any substantive rights. The Memorandum states as follows: 
This memorandum is intended solely for guiding USCIS personnel in performance of their 
professional duties. It is not intended to be, and may not be relied upon, to create any 
right or benefit, substantive or procedural, enforceable at law by any individual or other 
party in removal proceedings, in litigation with the United States, or in any other form or 
matter. 
Id. at 4. 
Courts have consistently supported this position. Loa-Herrera v. Trominski, 231 F.3d 984, 989 (5th Cir. 
2000) (holding that CIS memoranda merely articulate internal guidelines for INS personnel; they do not 
establish judicially enforceable rights. An agency's internal personnel guidelines "neither confer upon 
[plaintiffs] substantive rights nor provide procedures upon which [they] may rely"); see also Noel v. 
Chapman, 508 F.2d 1023 (2nd Cir. 1975) (finding that policy memoranda to INS district directors regarding 
voluntary extended departure determinations to be "general statements of policy"); Prokopenko v. Ashcroft, 
372 F.3d 941, 944 (8th Cir. 2004) (describing an INS Operating Policies and Procedures Memorandum 
(OPPM) as an "internal agency memorandum," "doubtful" of conferring substantive legal benefits upon 
aliens or binding the INS); Romeiro de Silva v. Smith, 773 F.2d 1021, 1025 (9th Cir. 1985) (describing an INS 
Operations Instruction (01) as an "internal directive not having the force and effect of law"); Ponce-Gonzelez 
v. INS, 775 F.2d 1342, 1346-47 (5th Cir. 1985) (finding that 01s are "only internal guidelines" for INS 
personnel, and that an apparent INS violation of an 01 requiring investigation of an alien's eligibility for 
statutory relief from deportation was at worst "inaction not misconduct"). 
Therefore, the Memorandum does not create any substantive rights in the petitioner, and a director's failure to 
follow the guidance in the Memorandum would not be grounds for a withdrawal of the decision. 
Third, it is clear from the director's reasoning in this matter that a material error was made with regard to the 
previous petition approval. As explained above, the petitioner failed to establish that is has a qualifying 
relationship with the foreign employer primarily because an affiliate relationship does not exist. The 
petitioner also failed to establish that the beneficiary will be employed in a primarily managerial or executive 
capacity. It must be noted that the previous approval of an L-1A petition does not preclude CIS from denying 
an extension based on a reassessment of petitioner's qualifications. Texas A&M Univ. v. Upchurch, 99 Fed. 
Appx. 556, 2004 WL 1240482 (5th Cir. 2004). Despite any number of previously approved petitions, CIS 
does not have any authority to confer an immigration benefit when the petitioner fails to meet its burden of 
proof in a subsequent petition. See section 291 of the Act, 8 U.S.C. 5 1361. 
WAC 05 007 5 1597 
Page 14 
Accordingly, the petitioner has failed to establish that the beneficiary will primarily perform managerial or 
executive duties, and the petition may not be approved for that reason. 
Beyond the decision of the director, the petitioner has not established that the beneficiary's services will be 
used for a temporary period and that the beneficiary will be transferred to an assignment abroad upon 
completion of the temporary assignment in the United States. 8 C.F.R. 5 214.2(1)(3)(vii). 
In this matter, the petitioner claims to be 66.7% owned and controlled by the beneficiary. As a purported 
owner of the petitioner, the petitioner is obligated to establish that the beneficiary's services will be used for a 
temporary period and that he will be transferred to an assignment abroad upon completion of the assignment. 
Id. However, the record is devoid of any evidence establishing that the beneficiary's services will be used 
temporarily. Once again, going on record without supporting documentary evidence is not sufficient for 
purposes of meeting the burden of proof in these proceedings. Matter of Sof$ci, 22 I&N Dec. at 165 (citing 
Matter of Treasure Craft of California, 14 I&N Dec. 190). 
Accordingly, as the petitioner has not established that the beneficiary's services will be used for a temporary 
period and that the beneficiary will be transferred to an assignment abroad upon completion of the temporary 
assignment in the United States, the petition may not be approved for this additional reason. 
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 MO reviews 
appeals on a de novo basis). 
The petition will be denied for the above stated reasons, with each considered as an independent and 
alternative basis for denial. When the MO denies a petition on multiple alternative grounds, a plaintiff can 
succeed on a challenge only if it is shown that the MO abused its discretion with respect to all of the MO's 
enumerated grounds. See Spencer Enterprises, Inc., 229 F. Supp. 2d at 1043. 
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. Accordingly, the 
appeal will be dismissed. 
ORDER: The appeal is dismissed.