dismissed L-1A Case: Gaming Machines

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PUBLIC COPY 
U.S. Department of Homeland Security 
20 Massachusetts Ave., N.W., Rm. 3000 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
File: EAC 08 008 52828 Office: VERMONT SERVICE CENTER 
 Dat3~~ 0 2 2008 
IN RE: Petitioner: 
Beneficiary: 
Petition: 
 Petition for a Nonimmigrant Worker Pursuant to Section lOl(a)(lS)(L) of the Immigration 
and Nationality Act, 8 U.S.C. 9 1101(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 fbrther inquiry must be made to that office. 
sobe: P. Wiemann, Chief 
Administrative Appeals Office 
EAC 08 008 52828 
Page 2 
DISCUSSION: The Director, Vermont 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 10 l(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 and claims to be engaged in the repair, refurbishing, and distribution of slot machines in South Florida 
and Latin America. The beneficiary was initially granted a one-year period of stay to open a new office in the 
United States. 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, through counsel, subsequently filed an appeal asserting that the director erred and that the 
beneficiary's duties establish that he would be employed in an executive capacity. 
To establish eligibility for the L-1 nonirnrnigrant 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 
same work which the alien performed abroad. 
The regulation at 8 C.F.R. 214.2(1)(14)(ii) also provides that a visa petition, which involved the opening of a 
EAC 08 008 52828 
Page 3 
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 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 primary 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. 8 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. 5 1101(a)(44)(B), defines the term "executive capacity" as an 
assignment within an organization in which the employee primarily: 
EAC 08 008 52828 
Page 4 
(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 fiom higher level executives, the board 
of directors, or stockholders of the organization. 
In support of the Form 1-129, the petitioner provided a letter dated October 8, 2007 stating that it seeks to 
employ the beneficiary for an additional two years in a managerial capacity. The petitioner stated that it is 
currently directed by the beneficiary, who, as a result of its "Strategic Alliance Agreement" with Evolution 
Game Technology Corp. (hereinafter "Evolution"), is now overseeing the activities of two Evolution 
employees alleged by the petitioner to be managerial. The petitioner provided the following description of 
the beneficiary's proposed employment: 
[The beneficiay] acts in an executive capacity, and has been in charge of specific critical 
functions. He heads up: 1) the business development component of our business and, 2) 
directs the product development and acquisition function of our operations. In this capacity, 
he: establishes the goals and policies of the U.S. [slubsidiary, i.e., he 1) determines the level 
and pace of expansion, 2) decides which gaming products and services are economically 
viable to offer in specific markets here and abroad; 3) pursues, selects and oversees all 
negotiations with both suppliers and purchasers worldwide (with final and exclusive authority 
to commit the U.S. [slubsidiary to sales and supply contracts), and 4) establishes policies and 
procedures for all business development as well as product offerings. He is the senior 
corporate officer in charge of these functions, and exercises complete discretion in carrying 
them out. He receives directives and approvals of a general nature form [sic] the board of 
directors . . . . He oversees others who cany out the tasks associated with executing upon his 
functions. 
[The beneficiary] will continue to[:] 
Be responsible to meet or exceed the financial results forecasted by the U.S. [slubsidiary 
for gaming machines sales, in accordance with the expectations of the Cplarent 
[clompany's board of directors. 
Develop new strategies for developing relationships with manufacturers of gaming 
machines and games, and acquiring new and innovative products worldwide. 
Develop and manage processes and procedures for penetration and growth within target 
markets, as well as efficient product delivery, maintenance and follow[-]up. 
EAC 08 008 52828 
Page 5 
Identify the needs and preferences of consumers within [the] niche gaming markets and 
develop new products and acquire new games to satisfy demand. 
Analyze competitors in the slot machine and "games of skill" industry, including their 
products, prices, marketing and advertising methods, and develop and implement 
competitive products, plans and practices accordingly. 
Analyze and report gaming product adoption and usage in [the] target markets, and utilize 
the information to drive subsequent product strategies. 
Ensure future gaming product releases reflect experience gained from external market 
activities, including customer discussions, usage analysis, revenuelpayout data, 
competitive response, and market research. 
Lead product personnel through the promotion, launch, maintenance and retirement of 
gaming machines and games. 
Act as a recognized expert in the filed [sic] of gaming, in order to resolve issues or 
uncertainties regarding machine programming and operation raised by gaming authorities 
or important clients, as needed. 
Develop internal quality controls, processes and procedures for personnel assigned to the 
distribution, sale, and lease of gaming products. 
Assure product compliance with local laws and regulations in all markets in which they 
are offered. 
Establish formulas and procedures for the preparation of revenue and payout projections 
for gaming product acquisitions and sales and present same to the board of directors of 
the [plarent [clompany or to major clients, as appropriate. 
Develop internal quality control, processes and procedures for personnel assigned to the 
provision of gaming products. 
Maintain [sic] the [plarent [clompany's board of directors informed of progress and 
request funding as appropriate for large acquisitions of new gaming products and general 
expansion of operations, as needed. 
Appoint supervisors and managers, and assign or delegate responsibilities to them, with 
complete discretion to hire and fire as he deems fit. 
Develop budgets and acquire the appropriate funding for new operations from the 
[plarent [clompany, as necessary. 
EAC 08 008 52828 
Page 6 
Handle all large financial transactions, acquire funding, loans, and lines of credit as 
necessary, supervise accounting and bookkeeping procedures. 
Acquire necessary insurance, and ensure compliance with federal, state and foreign laws 
and regulations, as well as tax, corporate and licensing laws. 
On December 14,2007, Citizenship and Immigration Services (CIS) issued a request for additional evidence 
(WE) in an effort to address various key issues, including the beneficiary's employment capacity in his 
proposed position with the U.S. entity. Specifically, the petitioner was instructed to provide a comprehensive 
description of the beneficiary's job duties and to discuss any employees that are subordinate to the 
beneficiary, providing their job duties and educational credentials. The petitioner was also asked to provide 
various tax and payroll documents, including W-2 wage and tax statements and quarterly wage reports. 
In response, the petitioner provided a letter dated January 22, 2008 in which CIS'S concerns were duly 
addressed. With regard to the beneficiary's job duties, the petitioner provided an additional list of 
responsibilities, stating that the beneficiary would develop and implement optimal business strategy regarding 
the petitioner's slot and game machine products; oversee commercial activities and financial transactions 
regarding the selection, purchase, and subsequent sale of slot machines and parts; manage and expand 
business relationships with the providers and distributors of slot and gaming machines; establish and oversee 
the implementation of the petitioner's gaming machines and parts; report to the foreign entity's board of 
directors; analyze and evaluate the petitioner's performance; and hire and fire employees. 
With regard to staffing, the petitioner stated that it currently employs the beneficiary and a general manager 
on a full-time basis and expects to hire a sales manager in February 2008. The petitioner also provided its 
quarterly wage reports for the third and fourth quarters of 2007. It is noted that the beneficiary was listed as 
the petitioner's only employee during both quarters, 
After reviewing the petitioner's submissions, the director issued a decision dated March 19, 2008 denying the 
petitioner's Form 1-129 on the basis that the beneficiary would not be employed in a qualifying managerial or 
executive capacity. The AAO has since reviewed the petitioner's record, including its submissions on appeal, 
and concludes that the director's decision to deny the petition on this basis was warranted. However, a 
number of the comments issued by the director in support of the denial were inaccurate or irrelevant to his 
overall conclusion regarding the petitioner's eligibility. First, the director commented on the beneficiary's 
salary and educational credentials, concluding that the amount of the beneficiary's compensation and "the 
beneficiary's apparent lack of a college degree" are both indicative of an employee who is not performing 
qualifying managerial or executive job duties. However, the AAO finds that both observations place undue 
emphasis on factors that have little or nothing to do with whether or not an individual is employed in a 
qualifying capacity. Second, the director commented on a 2006 federal income tax return, which showed that 
the amount paid in salaries was $28,720, an amount that did not match the beneficiary's salary either for 2006 
or for 2007. However, as properly pointed out in counsel's statement on appeal, the tax return referenced by 
the director is that of Evolution Games Technology Corp., not that of the petitioner. Accordingly, the 
director's irrelevant and erroneous comments will not be considered by the AAO in determining whether the 
beneficiary would be employed in a qualifying capacity. 
EAC 08 008 52828 
Page 7 
Nevertheless, the director properly considered the petitioner's organizational hierarchy and the availability of 
a support staff in determining whether the beneficiary would be employed within a qualifying capacity. 
Namely, the director noted that the beneficiary was the petitioner's only employee at the time the Form 1-129 
was filed. The director fiuther noted that the petitioner does not have employees to sell its products or 
provide other related services to the petitioner's clientele. Based on these observations, the director concluded 
that the beneficiary would not be relieved from having to primarily perform daily operational tasks that would 
not be deemed as being managerial or executive. 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. 593,604 (Comm. 1988). 
On appeal, counsel asserts that the petitioner is merely a start-up company "with barely a year of operation." 
However, 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. 
Next, counsel asserts that as a result of the petitioner's business relationship with Evolution Games 
Technology Corp., the beneficiary now manages several additional employees. However, the RFE 
specifically addressed the issue of the beneficiary's subordinates by asking the petitioner to name such 
individuals and to provide their respective job descriptions to establish how they assist in relieving the 
beneficiary from having to primarily engage in non-qualifying tasks. In its response, the only individual 
named as the beneficiary's subordinate was a general manager, whom the petitioner did not employ at the time 
the Form 1-129 was filed and therefore will not be considered, as the petitioner must establish eligibility at the 
time of filing the nonirnrnigrant visa petition. A visa petition may not be approved at a fkture date after the 
petitioner or beneficiary becomes eligible under a new set of facts. Matter of Michelin Tire Corp., 17 I&N 
Dec. 248 (Reg. Cornm. 1978). Similarly, while the petitioner indicated its intent to hire a sales manager, this 
projected hire was scheduled to take place in February 2008 and also will not be considered by the AAO in 
deciding whether the Form 1-129 at the time of filing merited the director's approval. 
Furthermore, even if, arguendo, the AAO were to accept counsel's assertion that the petitioner's business 
relationship with Evolution Games Technology Corp. resulted in the latter entity providing the petitioner with 
personnel in exchange for the petitioner's consulting services, the petitioner has not provided the names, job 
titles, or job duties of the individuals the beneficiary purportedly manages; nor did the petitioner provide 
documentation to establish the official exchange between the two entities. While the petitioner has provided a 
document entitled "Strategic Alliance and Consulting Agreement," which shows that some type of business 
relationship has been created between the petitioner and Evolution Games Technology Corp., this document 
does not establish that the latter company provides the petitioner with any personnel that would somehow 
relieve the beneficiary from having to primarily perform tasks that are directly associated with repairing, 
refurbishing, and distributing slot machines. Going on record without supporting documentary evidence is 
not sufficient for purposes of meeting the burden of proof in these proceedings. Matter of Sofici, 22 I&N 
Dec. 158, 165 (Cornrn. 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comrn. 
1972)). 
EAC 08 008 52828 
Page 8 
Lastly, counsel asserts that the beneficiary is employed within an executive capacity. However, he provides 
nothing to support this assertion except a restatement of the statutory definition of executive capacity. 
Counsel fails to specify which of the beneficiary's job duties actually fit each of the four qualifying criteria for 
the definition of executive capacity. Nor does counsel address the fact that the petitioner did not employ 
anyone other than the beneficiary at the time of filing such that the only logical conclusion is that the 
beneficiary was carrying out all the duties, regardless of their nature, as a direct result of having no other 
employees to perform the primary portion of the non-qualifying tasks. Moreover, counsel fails to take into 
account the petitioner's own description of the beneficiary's job duties as initially provided in the support 
letter dated October 8, 2007. While that description refers to personnel who would promote, launch, 
maintain, and retire gaming machines, as well as follow through with processes and procedures set up to 
ensure quality control, such personnel was not in place at the time the Form 1-129 was filed. This clear lack 
of any supporting personnel leads the AAO to believe that the performance of non-qualifying tasks would 
continue be the beneficiary's responsibility unless and until the petitioner is able to reach the stage of 
development where non-qualifying tasks no longer consume the primary portion of the beneficiary's time. 
In summary, counsel's statements on appeal are not persuasive and do not warrant a withdrawal of the 
director's decision. Accordingly, the appeal will be dismissed. 
Additionally, beyond the decision of the director, the petitioner has failed to establish that it has been doing 
business for the previous year. 8 C.F.R. 5 214.2(1)(14)(ii)(B). 
A visa petition which involved the opening of a "new office" may be extended by submitting evidence that 
the petitioner "has been doing business as defined in paragraph (l)(l)(ii)(H) of this section for the previous 
year.' 8 C.F.R. 9 214.2(1)(14)(ii)(B). "Doing business" is defined in part as "the regular, systematic, and 
continuous provision of goods and/or services." 
In this matter, the initial "new office" petition was approved from October 9, 2006 until October 9, 2007 
(EAC 06 234 53626). However, the record does not establish that the petitioner began "doing business" as 
defined in the regulations at the time of the initial petition's approval. The only evidence that shows the 
petitioner previously engaging in business transactions during the relevant one-year time period are two 
invoices dated December 22, 2006 and September 24, 2007, respectively. These two invoices, however, do 
not establish that the petitioner was doing business in a regular, systematic, and continuous manner during the 
remaining ten months of the relevant period. Accordingly, the petitioner has failed to establish that it has 
been doing business for the previous year, and the petition may not be approved for this additional reason. 
8 C.F.R. 5 214.2(1)(14)(ii)(B). 
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). 
The petition will be denied for the above stated reasons, with each considered as an independent and 
alternative basis for denial. When the AAO denies a petition on multiple alternative grounds, a plaintiff can 
EAC 08 008 52828 
Page 9 
succeed on a challenge only if it is shown that the AAO abused its discretion with respect to all of the AAO'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. Here, that burden has not been met. Accordingly, the appeal will be 
dismissed. 
ORDER: The appeal is dismissed.