dismissed L-1A Case: Information Security Technology

U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rrn. A3042 
Washington, DC 20529 
mm- -r 1 
u.S. Citizenship 
and Immigration 
FILE: EAC 03 110 53773 Office: VERMONT SERVICE CENTER Datz: 
PETITION: Petition for a Nonirnrnigrant Worker Pursuant to Section 101(a)(15)(L) of the Immigration 
and Nationality Act, 8 U.S.C. $ 1 lOI(a)(lS)(L) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to 
the affice that originally decided your case. Any further inquiry must be made to that office. 
q4, -$3 
,Robert P. Wiemann, Dire .or 
Administrative Appeals Office 
h 
EAC 03 110 53773 
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 petition seeking to extend the employment of its chief executive officer 
as a nonimmigrant intracompany transferee pursuant to 5 10l(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 Delaware 
that is operating as an information security technology company. The petitioner claims that it is the parent of 
the beneficiary's foreign employer, located in London, United Kingdom. The petitioner now seeks to employ 
the beneficiary for two years. 
The director denied the petition concluding that the petitioner failed to demonstrate: (1) that the beneficiary's 
foreign employer and the petitioning entity are qualifying organizations; and (2) that the beneficiary is 
employed by the United States entity in a primarily managerial or executive capacity. 
Counsel subsequently filed an appeal. The director declined to treat the appeal as a motion and forwarded it 
to the AAO for review. On appeal, counsel claims that a parent-subsidiary relationship exists between the 
two organizations as proven by a previously submitted stock transfer agreement. Counsel submits an 
attestation from the petitioner's chief operating officer confirming the operations of the foreign business. 
Counsel also claims that the beneficiary is employed in the United States as a manager and states thac the size 
of the petitioner's staff IS not deterrriinative of the beneficiary's employment capacity. Counsel submit? a brief 
and additional evidence in support of the appeal. 
To establish L-1 eligibility, the petitioner must meet the criteria outlined in section lOl(a)(lS)(Lj of the Act, 8 
1J.S.C. 5 1101(a)(15)(L). Specifically, within three years preceding the beneficiary's application for 
admission into the United States, 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. 
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 i~dividual petition filed on Form 1-129 shall be 
accompanied b-: 
(i) E.vidence 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 himiher 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. 
EAC 03 110 53773 
Page 3 
The first issue is whether the beneficiary's foreign employer and the petitioning entity are qualifying 
organizations as required in the Act at section 101(a)(15)(L), 8 U.S.C. 5 1101(a)(15)(L). 
The pertinent regulations at 8 C.F.R. 3 214.2(1)(l)(ii) define the term "qualifying organization" and related 
terms as follows: 
(G) QualiJjling organization mealls a United States or foreign firm, corporation, or other legal 
entity which: 
(I) 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; 
(2) Is or will be doing business (engaging in international trade is not 
required) as an employer in the United States and in at least one other country 
directly or through a parent, branch, affiliate or subsidiary for the duration of the 
alien's stay in the United States as an intracompany transferee; and, 
(3) Otherwise meets the requirements of section lOl(a)(lS)(L) of the Act. 
(H) Doing business means the regular, systematic, and continuous provision of goods andor 
scrvices by a qualifying organization and does not inciude the mere presence of an agent or office 
of the qualifying organization in the United States and abroad. 
(I) Parent means a firnl, corpo~ation. or other legal entity which has subsidiaries 
(J) Branch means an operating division or office of the same organization housed in a different 
location. 
(K) Subsidiary means a firm, corporation, or other legal entity of which a parent owns, directly or 
indirectly, rnore than half of the entity and controls the entity; or owns, directly or indirectly, half 
of the entity and controls the entity; or owns, directly or indirectly, 50 percent of a 50-50 joi~t 
venture and has equal control and veto power over the entity; or owns, directly or indirectly, less 
than half of :he entity, but in fact controls the entity. 
(L) Aj'iliate means 
(I) One of two subsidiaries both of which are owned and controlled by the 
same parent or individual, or 
(2) One 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. 
The petitioner filed the nonimmigrant petition on February 25, 2003 noting that the beneficiary's foreign 
employer, Visage Developments Limited, is a wholly owned subsidiary of the United States company. In an 
EAC 03 110 53773 
Page 4 
attached document titled "Relationship between Visage Developments Limited ("VDL") and Real Use 
Corporation ("RUC")" the petitioner explained: 
RUC was formed as a wholly owned subsidiary of VDL. In March 2000 the group was 
restructured and the relationship reversed so that RUC became the parent of VDL and VDL 
became the wholly owned subsidiary of RUC - which remains the position today. 
On March 10, 2003, the director issued a request for additional evidence asking that the petitioner submit 
documentation establishing the ownership and control of both the United States and foreign entities. The 
director noted that the evidence should include copies of stock certificates, stock ledgers, each company's 
articles of incorporation, and joint-venture agreements, if applicable. The director also requested that the 
petitioner provide evidence, such as sales invoices or transaction statements establishing that each 
organization is doing business in its respective country. 
Counsel responded in a letter dated March 21, 2003. As evidence of a qualifying relationship between the 
two organizations counsel submitted the petitioner's subscription and stock transfer restriction agreement. 
which counsel stated confirms a parent-subsidiary relationship. Section 4 of the agreement, which is dated 
March 8, 2000, states: 
4. Purchase and Issuance of Common Stock. 
(a) Subscriptions. Within two (2) business days of the Effective Date, the Stockholders shall 
render their shares and abandon their options to purchase shares of the capital stock of Visage 
Development, Ltd.. a corporation organized and existing under the laws of the United 
Kingdom ("VDL"). Upon sllch tender, the [petitioning] Corporation shall thereupon, and in 
tull consideration thereof, issue and deliver to each Stockholder a certificate or certificates 
evidencing ownership of the number of shares of the Common Stock of the Corporation 
depicted below immediately after each Stockholder's name: 
JCB Compact Products Ltd. 12,019 
EAC 03 1 10 53773 
Page 5 
(d) Warranty. The parties represents [sic] and warrant that they shall have good and, 
marketable title to all shares of VDL capital stock which they shall transfer to the Corporation 
pursuant to this Paragraph 4, and that each party has full power and lawful authority to 
consummate and perform the transactions contemplated herein. 
Counsel also provided sales invoices and a list of the foreign company's6 six employees as evidence that the 
foreign entity is doing business abroad. 
In a decision dated April 4, 2003, the director determined that the ietitioner had failed to demonstrate that the 
beneficiaq's foreign employer and the petitioning organization are qualifying organizations. The director 
stated that the petitioner's subscription and stock transfer restriction agreement "indicates that other - 
companies own and therefore control 34% of the compan-and his trusts an 
20% of the company, the founder and the director own 20% of the company while 
initial filing own 25% of the company." The director stated that the evidence submitted with the petition and 
in response to the director's request for evidence does not establish "that the ownership and control of the two 
cornpallies would qualify the companies as being affiliated." The director further noted that it is unclear 
whether the documentary evidence submitted in support of a qualifying relationship pertains to the foreign 
entity or the United States entity. 
Tr,e director also determined tl~i the getitioiier had hiled ta submit evidence demonstratilig that the foreign 
company is continuing to operate abroad during the beneticiary's absence. Consequently, the director 
concluded that the beneficiary's foreign employer and the United States entity are not qualifying 
organizations, and denied the petition. 
Counsel filed an appeal on May 5, 2003, explaining that at the time of the petitioner's incorporation as a 
United States organization, the petitioning organization was a subsidiary of the beneficiary's foreign 
employer. Counsel states that under the terms of the subscription and stock transfer restriction agreement, 
which was entered into seven days after the incorporation, "the qualifying relationship was reversed and 
Visage, the foreign company, became the wholly owned subsidiary of the U.S. corporation, Real User." 
Counsel includes on appeal copies of the foreign entity's audited financial statements for the years 2001 and 
2002, which counsel states indicate that the foreign company is controlled by the petitioning organization. 
Counsel also submits a letter from the petitioner's chief operating officer, who states in his letter that the 
foreign entity is a wholly owned subsidiary of the petitioning organization. 
Counsel also contends that the foreign ent~ty has been doing business in the United Kingdom during the 
beneficiary's assignment in the United States. Counsel states that the beneficiary's foreign employer is 
responsible for the petitioner's technology and product development, and will likely be responsible for the 
petitioner's British and European sales and services. Counsel submits an additional list of the foreign entity's 
employees, and again references an April 29, 2003 letter from the petitioner's chief operating officer. In his 
letter, the chief operating officer stated that "although [the foreign entity's] operations in the last two years 
have been cut back due to our focus on the US market, it remains a key component of our business strategy," 
and explained that the foreign entity holds patents for the petitioning organization and continues to maintain 
and file new patents on behalf of the petitioner. The officer also stated that the petitioner's product 
development team, Internet service, and web site collocation facility are based in the United Kingdom. 
EAC 03 110 53773 
Page 6 
Counsel submits wire transfer receipts between the foreign and United States entities, which counsel claims 
are also evidence of a qualifying relationship and the business operations of the foreign entity. 
On review, the petitioner has not conclusively established that the beneficiary's foreign employer and the 
petitioning entity are qualifying organizations. 
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 thi5 visa classification. Matter of Church Scientology lnternationul, 19 I&N Dec. 593 (BIA 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. 
As general evidence of a petitioner's claimed qualifying relationship, stock certificates alone are not sufficient 
evidence to determine whether a stockholder maintains ownership and control of a corporate entity. The 
corporate stock certificate ledger, stock certificate registry, Gorporate bylaws. and the minutes of relevant 
2-nnual shareholder meetings must also be examined to determine the total number of shares issued, the exact 
number issued to the shareholder, and the subsequent percentage ownership and its effect on corporate 
control. Additionally, a petitioning company must disclose all agreements relating to the voting of shares, the 
distribution of profit, the management and direction of the subsidiary, and any other factor affecting actual 
control of the entity. See Matter of Siemens Medical Systems, Inc., 19 I&N Dec. at 362. Without full 
disclosure of all relevant documents, Citizenship and Immigration Services (CIS) is unable to determine the 
dements of ownership and control. 
The regulations specifically allow the director to request additional evidence in appropriate cases. See 8 
C.F.R. 3 214.2(1)(3)(viii). As ownership is a critical element of this visa classification, the director may 
reasonably inquire beyond the issuance of paper stock certificates into the means by which stock ownership 
was acquired. As requested by the director, evidence of this nature should include documentation of monies, 
property, fir other consideration furnished to the entity in exchange for stock ownership. Additional 
supporting evidence would include stock purchase agreements, subscription agreements, corporate by-laws, 
minutes of relevant shareholder meetings, or other legal documents governing the acquisition of the 
ownership interest. 
In the present matter, the petitioner submitted its subscription and stock transfer restriction agreement both 
with the nonimmigrant petition and in response to the director's request for additional evidence as evidence of 
a qualifying relationship. While probative of a relationship between the foreign and United States entities, the 
agreement alone is not sufficient to establish that the petitioner is the parent company of the beneficiary's 
foreign employer. Counsel neglected to provide a stock certificate or additional documentation specifically 
requested by the director that would confirm the petitioner's stock ownership and control of the foreign 
3rganization. As noted above, the regulation at 8 C.F.R. # 214.2(1)(3)(viii) states that the petitioner shall 
submit additional evidence as the director, in his or her discretion, may deem necessary. The petitioner's 
failure to submit requested evidence that precludes a material line of inquiry shall be grounds for denying the 
petition. 8 C.F.R. # 103.2(b)(14). Additionally, the chief operating officer's claim of a parent-subsidiary 
relationship in his April 29, 2003 letter does not conclusively establish a qualifying relationship. Going on 
EAC 03 1 10 53773 
Page ? 
record without supporting documentary evidence is not sufficient for purposes of meeting the burden of proof 
in these proceedings. Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comrn. 1972). 
Moreover, the foreign entity's financial statements for the years 2001 and 2002 contain conflicting 
information as to the entity's ownership. The AAO acknowledges that the financial statements for each year 
contain language identifying the petitioning organization as the parent of the foreign entity. However, page 
seven, note one of the foreign entity's 2001 statement indicates "[tlhe company was, at the end of the year, a 
wholly-owned subsidiary of another company incorporated in the United Kingdom." The record does not 
contain any evidence explaining this discrepancy. 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 ro where 
the truth lies. Matter of Ho, 19 I&N Dec. 582, 591-92 (BIA 1988). 
The petitioner also failed to demonstrate that the foreign entity is doing business in the United Kingdom 
during the beneficiary's absence. The three sales invoices reflecting charges to the foreign entity do not 
substantiate the petitioner's claim that the foreign entity is operating in the United Kingdom. Each invoice, 
although addressed to the foreign entity, is mailed "care of' the petitioning organization to its United States 
~ffice. Two invoices indicate charges to the foreign company for web design and software development, 
while the third reflects charges for air and train fare to Washington, DC. It is unclear hov these invoices are 
relevant to the foreign cnt~ty's business operations. Additionally, the wire transfer statements submitted by 
counsel on appeal do nct represent anything more than a transfer of funds from the petitioner to the foreign 
organization. Again, these arc not significant to establishing business operations of the foreign corporation. 
Furthermore, the petitioner's chief operating officer. in his April 29, 2003 letter submitted on appeal, 
recognizes that the foreign entity operatioris "have been cut back" in the past two years. Consequently, the 
AAO cannot conclude that the foreign entity has been doing business in the United Kingdom during the 
beneficiary's absence. 
Based on the above discussion, the petitioner has failed to demonstrate that the beneficiary's foreign employer 
and the petitioning organi~ation are qualifying organizations. Accordingly, the appeal will be dismissed. 
Thz AAO will next consider whether the beneficiary would he employed by the United States entity in a 
primarily managerial or executive capacity. 
Section 101(a)(44)(A) of the Act, 8 U.S.C. 5 1 101(a)(44)(A), provides: 
The term "managerial capacity" means 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; 
EAC 03 110 53773 
Page 8 
(iii) Has the authority to hire and fire or recommend those as well as other personnel actions 
(such as promotion and leave authorization) if another employee or other employees are directly 
supervised; 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. $ 1101(a)(44)(B), provides: 
The term "executive capacity" means 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) Estabiisties the goals and policies of the orga~iization, conlponent. or function; 
(iii) Exercises wide latitude in diwretionary decision-making; and 
(iv) Receives only general supervision or direction from higher level executives, the board of 
direciors, or stockholders of the organization. 
The petitioner stated in the nonimmigrant petition that the beneficiary would be employed in the United States 
as chief executive officer and would be responsible for the direction, management, and oversight of the 
petitioning organization, reporting only to the company's board of directors and shareholders. In an attached 
letter from the petitioner. dated February 13, 2003, the petitioner's chief operating officer provided the 
following description of the beneficiary's employment in the United States: 
:The beneficiary's1 position in [the petitioning organization] is Chief Executive Officer and as 
such he is responsible for all the company's activities. The company's Chief Operations 
Officer, Chief Financial Officer and Chief Technology Officer all report directly to [the 
beneficiary], who in turn reports to the Board of Directors of the company (of which he is a 
member). [The beneficiary's] day to day duties include: capital raising, business and strategic 
planning, negotiations of contracts with strategic partners and key customers, the hiring of 
staff and managing relations with the Company's Advisors and Investors. 
Since arriving in the USA, [the beneficiary] has been successful in establishing a core team of 
dedicated staff and a large group of associates (industry experts and other professionals) who 
provide consulting and support services to and for the Company on an as-needed basis. 
The chief operating officer noted that the beneficiary would continue under the extended petition to be 
compensated with an annual salary of $216,000. 
EAC 03 110 53773 
Page 9 
The petitioner also provided copies from its Website identifying its management team as: chief executive 
officer, chief operations officer, chief technology officer, chief financial officer, vice-president of security 
integration, vice-president of customer services, and financial controller. The accompanying documentation 
also indicated that the petitioner had a six-person team of advisors. In an attached 2002 annual shareholders 
report, the petitioner further explained its personnel structure, noting that two additional workers, directors of 
business development, began sales activities in New York and the United Kingdom on a part-time, 
commission-only basis. 
In the director's March 2003 request for evidence, the director asked that the petitioner submit the following 
evidence demonstrating the beneficiary's employment in a qualifying capacity: (1) a list of all workers, 
including the beneficiary, employed by the petitioner, a description of their positions, and a breakdown of the 
number of hours devoted to each employee's specific tasks; (2) copies of each employee's Internal Revenue 
Service (IRS) Form W-2, Wage and Tax Statement; (3) a copy of the petitioner's most recent IRS Form 941, 
Employer's Quarterly Tax Return; and (4) any documentation related to contractors used by the petitioner. 
Counsel included in his March 21, 2003 response a list of the petitioner's employees again outlining the 
management and advisor team. The petitioner included on the list a brief description of each employee's 
weekly tasks, noting that all except the beneficiary and the chief operations officer were employed on a 
contract basis fa- less than forty hours per week. The petitioner also noted that it employed two salaried 
workers, a controller and an executive assistant, who each worked eight hours per week. Counsel provided 
the executive assistant's Form W-2 as confirmation of her empl~y~ent. Counsei also provided employment 
contracts for the members of the petitioner's management team. 
As additional evidence of the bcncficiary's employment in a clualifying capacity, counsel submitted a letter 
from the petitioner's chief operations officer. In the March 17, 2003 letter, the chief operations officer stated 
that the beneficiary is responsible for developing the petitioner's business and growth strategies, directing all 
functions of the company's operations, hiring and firing senior personnel, raising capital, investor relations, 
media, public and industry relations, and the development of strategic alliances. The petitioner's officer 
further stated that the beneficiary was responsible for supervising the petitioner's executive team and board of 
advisors, all of who reported to the beneficiary. The petitioner's chief operations officer also explained that 
the daily activities of the business are performed by its sales. marketing and customer support teams, product 
and web development team, and by the financial controller. 
In his April 4, 2003 decision, the director determined that the petitioner had failed to demonstrate that the 
beneficiary was and would be employed by the United States entity in a primarily managerial or executive 
capacity. The director stated that despite the petitioner's claim that it employs a management and advisory 
team of eleven workers, the evidence, including the petitioner's Forms W-2 and its federal quarterly tax 
return, indicate that the petitioner's staff includes only two workers. The director also stated that even if the 
beneficiary were supervising a staff of eleven employees, including five non-managerial employees, "it is not 
evident that those five non-managerial employees are relieving the managerial personnel from performing the 
duties of the daily operation of the company." The director determined that the managerial employees "must 
be performing some of the duties of the company and would not qualify the beneficiary as supervising 
managers of the company." The director concluded that the beneficiary would not be performing in a 
managerial capacity, except in job title alone. Consequently, the director denied the petition. 
EAC 03 1 10 53773 
Page 10 
On appeal, counsel states that the beneficiary has been and would continue to function in a managerial 
capacity, and claims that the beneficiary's managerial duties are clearly outlined in article 111, section I1 of the 
petitioner's accompanying by-laws. Section I1 provides: 
The Chief Executive Officer shall be a director of the Corporation. He shall have general 
oversight of the management and direction of the business of the Corporation as well as all 
powers ordinarily exercised by the Chief Executive Officer of a corporation. He shall, when 
present, preside at all meetings of the stockholders or directors. The Chief Executive Officer 
shall perform such other duties as the Board of Directors may direct. 
Counsel states: 
Since his initial entry in valid L-1A status, [the beneficiary's] primary duty has been to direct 
the entire organization. At no time have his responsibilities included "primarily" performing 
the tasks necessary to produce the product or provide the services of the organization rather 
he has functioned and will continue to function as a true executive or manager with primary 
duties to direct the management of the U.S. company; establish organizational goals and 
policies. exercise a wide latitude cf discretionary decision making and receive only general 
supzrvision or direction from the company's Board of Directors. During 2001 [the 
beneficiary] ?ersonalIy directed or accomplished the following: 
The negotiation and execution ut' partnership agreements with SAIC, a leading 
government systems integrator and with Netegrity, a major Web security company; 
a 'The first major sales of the compa;ly's Enterprise Security products[;] 
* The launch of a new "out-of-the-box" password security solutim, Passfaces for 
Windows; [and] 
Obtained additional funding for the company led by an institution investor, AN, 
(Advanced Infrastructure Ventures[)]. 
In 2003 and beyond [the beneficiary] will continue to oversee the direction and goals of the 
1J.S. company and to achieve increased market share for it's [sic] products and services 
through inna~ative and aggresive business development. 
Essent.ially at this stage of the U.S. company's development, [the beneficiary's] primary duties 
are to direct, manage, oversee and control tht: entire direction of the U.S. organization; the 
sale and marketing of its products and services; obtaining additional capital; entering into 
partnership and joint venture agreements and ultimately to control the work of other 
professional, supervisory, or managerial employees who have yet to be hired. 
(emphasis in original). Counsel also refers to an April 29, 2003 letter from the petitioner's chief operations 
officer, which counsel claims clearly outlines the beneficiary's managerial responsibilities. 
Counsel ctiallengzs the director's reference to the number of workers employed by the petitioner, stating that 
the "management of a function" without personnel responsibilities may be a basis for classification as an 
L-1A manager. 
EAC 03 110 53773 
Page 11 
Counsel also claims that the petitioning organization has grown to a sufficient size to support the beneficiary 
in a primarily managerial or executive position. Counsel submits a letter from the petitioner's chief financial 
officer, an Executive Overview, and financial statements, which counsel states reflect the petitioner's growth 
and its business plan for expansion in the United States. Counsel also contends that the attacks on September 
11, 2001 have prevented the petitioner from meeting its original goals, but that "the U.S. Company has now 
raised sufficient financial capital and entered into significant contracts and grown to sufficient size to support 
a managerial position for the beneficiary and ensure that it will be able to remunerate the beneficiary and 
continue to do business in the United States." 
On review, the petitioner has not established that the beneficiary would be employed under the extended 
petition in a primarily managerial or executive capacity. The instant petition is the petitioner's second request 
for an extension of the beneficiary's nonimmigrant status. The petitioner indicated in the petition that the 
beneficiary was previously approved for an extension of his L-1A status based on a petition involving a new 
office. Therefore, the instant matter will not be reviewed as a request for an extension pursuant to the 
regulation at 8 C.F.R. 5 214.2(1)(14)(i). 
When examining the executive or managerial capacity of the beneficiary, the AAO will look first lo the 
petitioner's description of the job duties. See 8 C.F.R. 5 214.2(1)(3j(ii). As required in the regulations, the 
petitioner must subrrlit a detailed description of the executive or managerial services to be performed by the 
beneficiary. Id. Moreover, a petitioner cannot claim that some of the duties of the position entail executive 
responsibilities. while other duties are managerial. A petitioner must clearly describe the duties to be 
performed hy the beneficiary snd indicate whether such duties are either in an executive or managerial 
capacity. Id. 
Although counsel claims that the beneficiary directs, manages and oversees the direction of the IJnited States 
organization, the record supports a finding that the beneficiary is still performing tasks similar to those performed 
in the development of a business, which are not typically categorized as managerial or executive. Specifically, 
the beneficiary is involved in raising capital for the corporation and planning the petitioner's corporate strategy. 
Additionally, the beneficiary is responsible for such nonqualifying functions of the business as negotiating 
contracts and performing the sales and marketing of the petitioner's products and services. The petitioner's 
description of the beneficiary's job duties does not establish what proportion of the beneficiary's duties is 
managerial in nature, and what proportion is actually non-managerial. See Replcblic of Transkei 5). /NS, 923 
F.2d 175, 177 (D.C. Cir. 1991). Based on the petitioner's representations of the beneficiary's job duties, it 
does not appear that the petitioning organization is capable of suppcrting the beneficiary as a manager or an 
executive. An employee wlio primarily perfoms the tasks necessary to produce a product or to provide 
services is not considered to be employed in a managerial or executive capacity. Matter of Church 
Scientology International, 19 I&N Dec. 593,604 (Comm. 1988). 
Also, counsel acknowledges on appeal that the beneficiary is not supervising or directing management of the 
organization, or professional or supervisory workers as required in the Act at sections 101(a)(44)(A) and (B). 
Counsel states that the beneficiary will "ultimately . . . control the work of other professional, supervisory, or 
managerial employees who have not yet been hired." The petitioner must establish eligibility at the time of 
filing the nonimmigrant visa petition. A visa petition may not be approved at a future date after the petitioner 
or beneficiary becomes eligible under a new set of facts. Matter of Michelin Tire Corp., 17 T&N Dec. 248 
(Reg. Cornrn. 1978). 
EAC 03 1 10 53773 
Page 12 
Counsel correctly observes that a company's size alone, without taking into account the reasonable needs of 
the organization, may not be the determining factor in denying a visa to a multinational manager or executive. 
See section IOl(a)(44)(C), 8 U.S.C. 9 1101(a)(44)(C). However, 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. 
Systrunics Corp. v. INS, 153 F. Supp. 2d 7, 15 (D.D.C. 2001). To establish that the reasonable needs of the 
organization justify the beneficiary's job duties, the petitioner must specifically articulate why those needs are 
reasonable in light of its overall purpose and stage of development. 
At the time of filing, the petitioning organization had been established for two years and employed the 
beneficiary and a chief operations officer on a full-time basis. The petitioner explained in its business plan 
and accompanying documentation that it employed additional personnel, who devoted approximately one 
hour to twelve hours per week to the business. Based on the petitioner's representations, it does not appear 
that the petitioner employs a staff sufficient to meet the reasonable needs of the organization. The majority of 
the petitioner's workforce is employed on a less than part-time basis, and specifically, the petitioner's two 
non-managerial employees, the controller and the administrative assistant, each work eight hours per week. 
The petitioner has not offered any explanation how its reasonable needs are met by the full-time employment 
of the bzneficiary and the chief operations officer only. 
Furthermore, the reasonable needs of the petiticner szrve only as a factor in evaluating the lack of staff in the 
context of reviewing the claimed managerial or executive duties. The petitioner must still establish that the 
beneficiary is to be employed in the United States in a primarily managerial or executive capacity, pursuant to 
sections IOl(a)(44)(A) and (B) or the Act. As discussed above, the petitioner has not established this 
essential element of eligibility. 
Based on the foregoing discussion, the petitioner has failed to demonstrate that the beneficiary is employed by 
the United States entity in a primarily managerial or executive capacity. For this additional reason, the appeal 
will be dismissed. 
In visa petition proceedings, the burden of proving eligibility for the benefit sought remain% entirely with the 
petitioner. Section 291 of the Act, 8 U.S.C. 5 1361. Here, that burden has not been met. Accordingly, the 
c!irectorSs derision will be affirmed and the petition will be denied. 
ORDER: The appeal is dismissed.