dismissed L-1A Case: Health Care Staffing

U.S. Department of IIumeland Security 
20 Mass. Avc. N W Rm. A3042 
Washington. DC 20529 
I 
li U.S. Citizenship 
and Immigration 
File: LIN 04 053 50543 Office: NEBRASKA SERVICE CENTER Date: 1 8 IN5 
.I 
Petition. Pet~tion for a Non~mmigrant Worker Pursuailt to Section 101(a)(15)(L) of the Immigration 
and Natlonahty Act, 8 U.S.C. 9: 1101(a)(15)(L) 
INSTRUCTIONS: I' 
This IS the decision of the Administrative Appeals Office in your case. All documents have been returned to 
the office that orlglnaliy decided your case. Any further inquiry must be made to that office. 
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LIN 04 053 50543 
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DISCUSSIOK: The '~irector, Nebraska Service Center, denied the petition for a nonimm~grant vlsa, and 
upheld the denial after granting a subsequent motion to reconsider. The matter is now before the 
Administrative Appeals Office (AAO) on appeal. The AAO will dismiss the appeal. 
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The petitioner filed this nonimmigrant petition seeking to extend the employment of its executive director as 
an L-1 A nonimmigrant mtracompany transferee pursuant to section 10 l(a)(15)(L) of the Immigration and 
Nationality Act (the 4ct), S U.S.C. fj 1101(a)(15)(L). The petitioner IS a corporation organized in the State of 
Nebraska that is engaged in health care staffing. The petitioner claims that it IS ail affiliate of - 
and located in Ghaziabad. India. The benefic~ary was lnltlally granted a sw month 
period of stay to open a new office in the United States and was subsequently granted an add~tlonal two year 
Il extension. The petltioner now seeks to extend the beneficiary's stay for an additional two years. 
'I'he director denied the petition, concluding that the pehtioner did not establish that the benefic~ary will be 
employed in the United States in a primarily managerial or executive capacity. Counscl for the petltloner 
filed a motlon to reopen andlor reconsider, which was granted by the dlrector. Counsel asserted that the 
director's denial was erroneous based 011 the previous approvals in this matter. The director disagreed, and 
affirmed the denial, 
The matter is now before the AAO on appeal. On appeal, counsel for the petitloner contends that the dlrector 
errcd by finding that the beneficiary would not be employed m a primarily managenal or executtve capacity. 
parttcularly m light of the pnor approvals. In addttlon, counsel alleges that the beneficiary has met the 
statutory rcquirements In that he operates as a function manager, thus satisfying the regulatory requ~rements 
of managerial capacity. In support of these contentions. counsel submlts a bnef and additional ev~dence. 
To cstablish eligibili& for the L-1 nonirnmigrant visa classification, the petitioner'must meet the criteria 
outlined in section 101(a)(15)(L) of the Act. Specifically, a qualifying organization inust have employed the 
beneficiary a qualifying managerial or executive capacity, or in a specialized knowledge capacity, for one 
continuous year withln 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 contiye rendering his 
or her services to the same employer or a subsidiary or affiliate thereof in a managerial, executive, or 
specializkd knowledgd capacity. 
The regulation at 8 C.F.R. 5 214.2(1)(3) states that an individual petitlon filed on Form 1-129 shall be 
accompanied by: 
(1) Evldence that the petltioner and the organization which employed or w~ll cmploy the 
alien are qualifying organizations as defined in paragraph (l)(l)(ii)(G) of ths section. 
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(11) Evldence that the alien wlll be employed In an executive, managerial, or specialized 
knowledge capacity, including a detalled descript~on of the services to be performed. 
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(ni) Evidence that the alien has at least one continuous year of full time employment 
abroad with a qual~fying organization within the three years preceding the filing of i 
the petition. 
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(iv) Evidence that the allen'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, traming, and employment qualifies him/her 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 primary Issue In thls matter IS whether the beneficiary will be employcd by the United States entity In a 
pr~marlly managerlal or execut~ve capaclty. 
Section 101(a)(44)(A) of the Act, 8 U.S.C 5 1101(a)(44)(A), defines the term "managerial capaclty" as an 
assignment wlthln an organization in whlch the employee primarily: 
(1) manages the organlzation, or a department. subd~v~s~on, function, or component of 
the organlzation; 
(~i) supervises and controls the work of other supervisory, professional, or managerla1 
employees, or manages an essent~al function wlthin the organization, or a department 
or subdivision of the organization; 
(111) if another employee or other employees are dlrectly supervlsed, has the authorlty to 
hlre and fire or recommend those as well as other personnel act~ons (such as 
promotion and leave authonzatlon), or ~f no other employee 1s dlrectly supervised, 
funchons at a senior level wlthin the organlzat~onal h~erarchy or with respect to the 
function managed; and 
(IV) exerclses d~scretlon over the day to day operat~ons of the activity or funct~on for wh~ch the 
employee has authorlty. A first line supervisor is not cons~dered to be actlng in a managerial 
capac~ty merely by vlrtue of the superv~sor's supemsory dutles unless the employces 
supervlsed are profess~onal. 
Section 101(a)(44)(B) of the Act, 8 U.S.C. 5 1101(a)(44)(B), defines the term "execut~ve capacity" as an 
assignment w~thin an orgamzation in which the employee primarily: 
(I) directs the management of the organlzatlon or a major component or functlon of the 
organlzatlon; 
(11) estabhshes the goals and polic~es of the organization, component, or funct~on, 
(111) cxerclses w~de lat~tude in dlscretlonary decision malung; and 
(IV) recelves only general supervision or direction from higher level executives, the board 
of d~rectors, or stockholders of the organlzation. 
LTN 04 053 50543 
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With the initial petition, the petitioner submitted a letter dated December 4.2003 which provided an overview 
of the beneficiary's position in the United States. The letter explained that the beneticiary was thepetitioner's ' 
executive officer and that he supervised and oversaw the daily operations of the petitioner. With regard to his 
duties, the petitioner stated: 
Specifically, on a day to day basis [the beneficiary]: 
Directs, plans, and implements policies and objectives of the business in accordance 
with charter and board of directors. 
Analyzes operations to evaluate performance of the company and to determine areas 
of cost reduction and program improvement. 
Confers wlth board members to establish policies and formulate plans. 
Revlews financial statements and sales and actlvity reports to ensure that the 
company's objectives are achieved. 
Directs and coordinates activities of the business by contacting, negotiating, and ' 
cntenng Into contracts wlth healthcare organizations for nurses. 
Establishes Internal control procedures and nurse critena. 
Presides over or serves on board of directors, management commttees, or other 
governing boards. 
The director found this initial evidence to be insufficient, and consequently issued a request for .evidence 
(RFE) on January 26, 2004. Thc WE requested the petitioner to submit additional in'formation that 
established that the beneficiary would function in a capacity that was primarily managerial or executive. 
Specifically, the director requested a detailed and comprehensive description of the beneficiary's duties, an 
overview of his position in the organizatjonal hierarchjr of the petitioner, the percentage of time he devoted to 
each of his duties, and the duties and roles of his subordinates. 
In a response dated February 26, 2004, the petitioner, through counsel, submitted the requested information. 
The petitioner indicated that the beneficiary filled all the re'sponsibilities of a chief executive officer, and 
provided the following updated description of the beneficiary's duties: 
Formulation of strateglc and operational mandates for [the petitioner1 
Budgeting and resourclng of corporate funds 
Negotiating wlth clients and prospective clients 
Supervls~on of all personnel, includmg the hirlng and finng of staff 
Execution and evaluation of business operaaons 
Oversee~ng compliance of all Federal and State statutes as applied to the bus~ncss of 
[the petitloner] 
Other management duties 
With regard to the amount of time the beneficiary devoted to each of these duties, the petitioner stated: 
The approximate proportion of time allocated to the strateglc component (1.e. budgeting and 
re-sourcing, negotlatmg wlth cllents, etc.) 1s 40%. The operat~onal component, I.c.. 
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supervision of staff, hiring and firing, compliance issues, etc., generally consume about 40% 
of time availible. The rest of the 20% is divided up as required by business conditions. The 
number of hours devoted weekly to [the petitioner] is 48-55 hours. , . 
The petitioner also described.the structure of the organization and explained that the beneficiary reported only 
to the president. The petitioner furthcr explained that there are two employees.in the U.S office and two 
employees abroad. The beneficigry, the petitioner contended, oversaw these four einPloyees and explained 
that there were two divisions within the petitioner: administrative services and human resources'. Although 
the petitioner did not specifically state which employees worked in. the U.S. office, he identified a vice 
president, two administrative assistants, and a data entry clerk. Although the petitioner did not specify which 
employees were stationed in the United States, it appears from his description.of duties for the vice'president, 
which include "reporting to [the U.S.] office," that the vice president is stationed abroad. 
On Aprll 14, 2004, the director denied the petlt~on. The dlrector found that the evldence In the record fa~led 
to estabhsh that thc beneficiary would be functlonlng In a primanly managerlal or cxecutlve capacity. 
Specifically, the director concluded that the beneficiary would be performing the day-to-day tasks of thc 
organlzatlon. The dlrector further concluded that the beneficiary was performing the tasks necessary to 
provide the pet~t~oner's goods and services since the evldence lnd~cated that the benefic~ary would be 
performing numerous marketing and sales functions. Finally, the dlrector concluded that the benefic~ary was 
merely a first line supervisor and not a manager or executlve as required by the regulatlons. 
On motion, counsel asserted that the director's denlal was erroneous, and that deference should be afforded to 
the prevlous approvals granted on behalf of thls beneficiary. In addition, counsel asserted that the benefic~ary 
was In fact managing an essentlal funct~on of the pct~tioner and thus satisfied the regulatory requ~rements for 
managerial capacl ty . 
The director found these arguments unpersuaslve and affirmed the prevlous den~al. Counsel now raises the 
arguments first introduced on mot~on on appeal. 
Upon revlew, counsel's assertions are not persuasive. Although counsel focuses on two key points m her 
appcal brief, namely that the dlrector erred by disregarding prior approvals and that the benefic~ary quahties 
for status by v~rtue of hls management of an essentlal function, the AAO will first review the beneficlary's 
stated duties. Whether the benefic~ary IS a manager or executive employee turns on whether the petltloner has 
sustained ~ts burden of proving that his dutles are "primanly" managerla1 or executlvc. See sectlons 
101(a)(44)(A) and (B) of the Act. In thls case, the petitioner asserts that the bencfic~ary IS a manager by 
vlrtue of h~s posltlon tltle, experience, and associatcd dutles. However, the descnption of dut~es provided is 
vague and fails to specify the cxact nature of the clalmed managerial duties. Specifics are clearly an 
Important ~ndlcatlon of whether a bcneficlary's dutles are pr~rnarlly executlve or managerlal In nature; 
' 
othenv~se meetlng the definitions would slmply be a matter of reiterating the regulatlons. Fcdin Bras Co . 
Ltd v Suva. 724 F. Supp. 1103 (E.D.N.Y. 1989), afd, 905 F.2d 41 (2d. Clr. 1990). 
The descnption of the beneficlary's dutles, provided m the inltial letter of support as well as m response to the 
director's request for evrdence, is vague and seems to merely paraphrase the regulatory definrt~ons. 
Specifically, the ~dentification of dutles such as "directs, plans, and implements pollc~es and objcctlves of the 
LIN 04 053 50543 
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business," "formulation of strategic and operational mandates," and "other.management duties" did'little to 
clarify what the beneficiary does on an average workday. In fact, some of these duties are extremely similar 
to the executive duties set forth in Section 101(a)(44)(B) of the Act, 8 U.S.C. 5 1101(a)(44)(B). In response 
to the request for evidence, a more detailed discussion of the petitioner's organizational structure was 
submitted, which indicated that the beneficiary oversaw an administrative assistant and a data entry clerk 
while negotiating all contracts and handling the recruitment of nurses. Essentially, the petitioner claims that 
the beneficiary enters into contracts with clients, solicits new clients, recruits nurses, handles the corporate 
budget and payroll, and establishes internal control policies. Furthermore, the petitioner alleges that 40% of 
the beneficiary's time is devoted to this strategic component of the company. With the beneficiary spending 
such a large percentage of his time dealing personally with'clients and attempting to solicit new clients in 
addition to handling payroll matters and budget questions, and with 20% of his time undefined, with as much. 
as 11% or more possibly devoted to non-qualifying duties, it appears the beneficiary is performing the 
majority of the necessary functions required to generate the goods and services of.the business. The actual 
duties themselves reveal the true nature of the employment. Id. In revie\iiing the beneficiary's stated duties, it 
appears that the majority of his time is devoted to the company's recruitment, marketing, and financial 
functions. An employee who primarily perfops the tasks necessary to produce a product or to provide 
services is not considered to be employed in a managerial or executive capacity. &latter of Cizurclz 
Scientolo~ Interrzutional, 19 I&N Dec. 593, 604 (Comm. 1988). 
Furthermore, the AAO notes that for the first time on appeal, counsel asserts that the beneficiary is acting as a 
function manager by way of overseeing,the nurses. This assertion is not persuasive. On appeal, a petitioner 
cannot offer a new position to the beneficiary: or materially change a position's title, its level of authority 
within the organizational hierarchy, or the associated job responsibilities. The petitioner must establish that 
the position offered to the-beneficiary when the petition was filed merits classification as a managerial or 
executive position. Matter of Michelin Tire Cnrp., 17 I&N Dec. 248, 249 (Reg. Comm. 1978). A petitioner 
may not make material changes to a petition in an effort to make a deficient petition conform to CIS 
requirements. See Matter of Iztrmmi, 22 I&N Dec. 169, 176 (Assoc. Comm. 1998). Furthermore, although 
asked for a more comprehensive description of the beneficiary's duties in .the request for evidence, counsel 
failed to include this seemingly important role of the beneficiary in her response. The petitioner was put on 
notice of required evidence and given a reasonable opportunity to provide it for the record before the visa 
petition was adjudicated. The petitioner failed to submit the requested evidence and now submits it on 
appeal. However, the'AAO will not consider this evidence for any See Matter of soriano, 19 I&N 
Dec. 764 (BIA 1988); Matter of Ohaigbena, 19 I&N Dec. 533 (BIA 1988). The appeal will be adjudicated 
based on the record of proceeding before the.director. 
The petitioner further claims that the beneficiary oversecs a subordinate staff, specifically, the vice-president, 
two administrative assistants, and a data entry clerk. The record indicates that the vice president and one of 
the administrative assistants are in India; therefore, it appears that the beneficiary merely oversees at most one. 
administrative assistant and one data entry clerk. Although the beneficiary is not ,required to supervise 
personnel, if it is claimed that'his duties involve supervising employees, the petitioner must establish that the 
subordinate employees are supervisory, professional, or managerial. See tj 101 (a)(44)(A)(ii) of the Act. It is 
noted that in this case, the petitioncr contends that the beneficiary devotes 40% of his time to the supervision 
of staff, a claim which appears unlikely given that the supervision of staff is not the only operational duty 
listed. 
(t 
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The petitioner did not provide the level of education required to perform the duties of the administrative 
assistant or the data entry clerk. By virtue of their titles alone, it is presumed that these positions are non- 
professional as the description of their duties clearly indicates that they perform administrative and support 
functions. Thus, the petitioner has not established that these employees require an adiranced degree, such that 
they could be classi$ed as professionals. Nor has the petitioner shown that either of these employees 
supervise subordinat4 staff members or manage a clearly defined department or function of the petitioner, 
such that they could be classified as managers or supervisors. Thus, the petitioner has notshown that the 
beneficiary's subordiiiate employees are supervisory, professional, or managerial, as required by section 
lOl(a)(44)(A)(ii) of t!e Act. In fact, the petitioner's claim is that the beneficiary supervises the vice president 
and another adrninishjtive assistant in India as well, but does not clarify how this is acchmplished with the 
time difference and distance between them and the apparent issue of which company ictuaily employs these 
two individuals, the petitioner or the foreign entity. ' It is incumbent upon the petitioner to resolve any 
inconsistencies in the: record by independent objective evidence. Any atteinpt to explain or reconcile such 
inconsistencies will nit suffice unless the petitioner submits competent objective evidence pointing to,where 
the truth lies. Malter- ofHo, 19 I&N Dec. 582, 591-92 (BIA 1988). 
Counsel's main argument on motion and again on appeal is that the director disregarded policy by denying 
the petition in light of'the two previously granted petitions on behalf of the bencficiary. Counsel asserts that a 
memo by William R. kates, Associate Director for Operations, dated April 23, 2004 clearly instructed service 
center directors to giv& deference to prior determinations when adjudicating petitions for extendions involving 
the same parties and same underlying facts. Counsel asserts that all ,facts remain the same and ,the 
employment situation', of the petitioner has likewise remained constant. The director, however, found 
counsel's reliance on this memorandum unpersuasive and noted that, when, a material error 1s involved, 
deference need not be bven to prior approvals. 
. . 
The AAO concurs with the director's conclus~ons. The evldence in the record pertaining to the beneficiary's 
duties is insufficient to show that the beneficiary has satisfied the regulatory requirements for managerial or 
executlve capaclty. By the pet~honer's own admission, the beneficiary spends 40% of hls tlme deallng 
dlrectly with clients and the publ~c by negotlatlng contracts, soliciting new cllents, and handhng fiscal 
operatrons of the combany and 20% of his tlme devoted to undefined and unassigned dutleq None of these 
dut~es are incorporated In the regulatory definitions of managerial or executlve capaclty. LI~CWI~C, an 
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additional 40% of the beneficlary's tlme is supervising a non-professional, non-supervising staff of 
subordmates, both 04, whom merely perform secrctanal or admlnlstratlve functions. The benefic~ary, 
therefore, is not overseeing professional, managerial, or supemsory employees as required by the regulatory 
defin~tions ~oreovek, the petitloner has failed to show that the beneficiary oversees a salcsperson, a 
marketing associate, a bookkeeper, or other similarly qualified person to relieve the beneficiary from devotlng 
a majorlty of his tlme ty non-qualifying duties. Clearly, the pnor approvals in this matter const~tuted matcrlal 
error 111 that the preponderance of the beneficlary's duties were non-qualifying and therefore d~rectly 
contrad~ctory to the regulatory requirements. 
The director's decision, does not ind~cate whether he reviewed the pnor approvals of the other nonlmmlgrant 
pettt~ons. If the prevlous nonirnmigrant petitions were approved based on the same unsupported and 
contrad~ctory assertions that are contained in the current record, the approval would constitute matenal and 
gross error on the part of the director. The AAO is not required to approve appl~cations or pet~tlons where 
LIN 04 053 50543 
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eligib~hty has not bedn demonstrated, merely because of pnor approvals that may have been erroneous. See, 
e.g. Matter- of Clzurch Scientology Inter-rtational, 19 I&N Dec. 593, 597 (Comm. 1988). It would be absurd to 
suggest that CIS or yy agency must treat acknowledged errors as binding precedent. Szrssex Eizgg. Ltd. v. 
Mo~ztgomely, 825 F.2P 1084, 1090 (6th Crr. 1987), cert. denied, 485 U.S. 1008 (1988). The prior approvals 
do not preclude CIS from denying an extension of the or~glnal visa based on reassessment of petitloner's 
qualifications. Texas AM Univ. v. Upchurch, 99 Fed. Appx. 556,2004 WL 1240482 (5th Cir. 2004). 
Furthermore, the AAO's authority over the service centers 1s comparable to the relationship between a court 
of appeals and a dlsdct court. Even if a semce center drrector had approved the nonlmmigrant petlt~ons on 
behalf of the beneficfary, the AAO would not be bound to follow the contradictory decislon of a service 
center. Louisiana Pl~ilharrnonic 0rchestr.a v. INS, 2000 WL 282785 (E.D. La.), affd, 248 F.3d 1139 (5th Clr. 
2001), cert. denied, 122 S.Ct. 5 1 (2001). 
Beyond the decision of the director, the petition also may not be approved because there is insufficient 
evidence of a cjualifyi1hg relationship between the petitioner and the foreign entity. . The petitioner claims that 
it is an affiliate of thd foreign entity, and its Articles of Incorporation, dated 0ctober 11, 1999, indicate that 
10,000 shares of stock at' a par value of $1.00 per share were authorized. The petitioner cokoboiated its 
claimed relationship dy submitting stock certificates dated October 15, 1999 which indicate that the foreign 
entity owns 6,000 sh$es and a second shareholder, identified as , owns 4,000. However, the 
petitioner also submibed what it refers to as "recent" share certstes, dated September 25, 2002, which 
indicate that the forerh entlty owns 8,500 shares and owns 1,500. It is unclear whether the 
ownersh~p Interests have been revlsed or whether add~tional shares of stock have been ~ssued m addltron to 
the initral 10,000 authorized. 
As general evidence of a petitloner's claimed qualifying relatlonsh~p, stock certificates alone are not sufficient 
evldence to determine whether a stockholder malntalns ownersh~p and control of a corporate entlty. Thc 
corporate stock certificate ledger, stock certificate regrstry, corporate bylaws, and the minutes of relevant 
annual shareholder meetlngs must also be examlned to determine the total number of shares ~ssued, the exact 
number issued to thd shareholder, and the subsequent percentage ownersh~p and its effect on corporate 
control. Addrtionally,a petrtloning company must disclose all agreements relating to the votlng of shares, the K distribution of profit, the management and direction of the subs~diary, and any other factor affecting actual 
control of the entlty. See Matter of Siemens Medicul Systems. Inc., 19 I&N Dcc. 362 (BIA 1986). W~thout 
full disclosure of all relevant documents, CIS is unable to determine the elements of owncrsh~p and control. 
As stated above, the stock certificates dated September 25,2002 dlrectly contradict the ownersh~p interests set 
forth on the stock cerhficates dated October 15, 1999 and outlined in the extracts of the meet~ng minutes 
dated September 8, 1999. It 1s incumbent upon the petitioner to resolve any inconsistencres m the record by 
Independent objective,,evideilce. Any attempt to explaln or reconcile such ~ncons~stenc~es will not suffice 
unless the petltloner submits competent 0bjectl~e evrdence pornting to where the truth 11es. Matter of Ho, 19 
T&N Dec. 582, 591-92; (BL4 1988). If CIS falls to belleve that a fact stated rn the petlt~on is true. CIS may 
reject that fact. Sectlon 204(b) of the Act, 8 U.S.C. 5 1154(b); see also Aizetelrhai v I.N S , 876 F.2d 1218, 
1220 (5th Clr. 1989); Lu-Arin Bakeq. Shop, Inc. v. Nelson, 705 F. Supp. 7, 10 (D D.C. 1988); Systron~cs C'or--7 
v. INS. 153 F. Supp. 2d 7, 15 (D.D.C. 2001). 
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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 lnrtial decision. See 
Spelzcer 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). 
When the AAO denies a petition on multiple alternative grounds, a plaintiff can succeed on a challenge only 
~f she shows that thr(~~0 abused it discretion with respect to all of the AAO's enumerated grounds. See 
Spencer E~iterprises, Inc. v. United States, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 2001), ~$jd. 345 F.3d 683 
(9th Cir. 2003). 
The petition will be idenled for the above stated reasons, with each considered as an independent and 
alternative basis for denial. In visa petltion proceedings, the burden of proving eligibility for the benefit 
sought remains entlrely with the petitioner. Section 291 of the Act, 8 U.S.C. $ 1361. Here, that burden has 
not been met. 
ORDER: The abpeal is dismissed.