dismissed L-1A Case: Information Technology

U.S. Department of Homeland Security 
20 Massachusetts Ave. N.W., Rm. A3042 
Washington, DC 20529 
File: EAC 04 030 53 132 Office: VERMONT SERVICE CENTER 
Petition: Petition for a Nonimmigrant Worker Pursuant to Section 10 1 (a)(15)(L) of the Immigration 
and Nationality Act, 8 U.S.C. $ 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 retuned to 
the office that originally decided your case. Any further inquiry must be made to that office. 
/F-! r 1 
!/L - : f-3 ,"I --/ 
e Robert P. wiemann<birector 
c4+dministrative Appeals Office 
if 
EAC 04 030 53132 
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 president as an L-1A 
nonimmigrant intracompany transferee pursuant to section 10 1 (a)(15)(L) of the Immigration and Nationality 
Act (the Act), 8 U.S.C. 5 1 10 1 (a)(15)(L). The petitioner is a corporation organized in the Commonwealth of 
Massachusetts that is engaged in the provision of specialized sohare and information technology 
management solutions. The petitioner claims that it is the subsidiary of Indosoft Systems Private Limited 
located in Mumbai, India. The beneficiary was initially granted a one-year period of stay to open a new office 
in the United States and the petitioner now seeks to extend the beneficiary's stay. 
The director denied the petition concluding that the petitioner did not establish that the beneficiary 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 for the petitioner asserts that the director did 
not consider all of the evidence presented and contends that the beneficiary will perform primarily executive- 
level duties. In support of these assertions, counsel submits a brief and additional evidence. 
To establish eligibility for the L-1 nonimmigrant visa classification, the petitioner must meet the criteria 
outlined in section 101(a)(15)(L) of the Act. Specifically, a qualifying organization must have employed the 
beneficiary in a qualifying managerial or executive capacity, or in a specialized knowledge capacity, for one 
continuous year within three years preceding the beneficiary's application for admission into the United 
States. In addition, the beneficiary must seek to enter the United States temporarily to continue rendering his 
or her services to the same employer or a subsidiary or affiliate thereof in a managerial, executive, or 
specialized knowledge capacity. 
The regulation at 8 C.F.R. 5 214.2(1)(3) states that an individual petition filed on Form 1-129 shall be 
accompanied by: 
(i) Evidence that the petitioner and the organization which employed or will employ the 
alien are qualifying organizations as defined in paragraph (l)(l)(ii)(G) of this section. 
(ii) Evidence that the alien will be employed in an executive, managerial, or specialized 
knowledge capacity, including a detailed description of the services to be performed. 
(iii) Evidence that the alien has at least one continuous year of full time employment 
abroad with a qualifying organization within the three years preceding the filing of 
the petition. 
(iv) Evidence that the alien's prior year of employment abroad was in a position that was 
managerial, executive or involved specialized knowledge and that the alien's prior 
education, training, and employment qualifies hirnlher to perform the intended 
EAC 04 030 53132 
Page 3 
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. 9 214.2(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 (l)(l)(ii)(G) of this section; 
(B) Evidence that the United States entity has been doing business as defined in 
paragraph (I)(l)(ii)(H) of this section for the previous year; 
(C) A statement of the duties performed by the beneficiary for the previous year and the 
duties the beneficiary will perform under the extended petition; 
(D) A statement describing the staffing of the new operation, including the number of 
employees and types of positions held accompanied by evidence of wages paid to 
employees when the beneficiary will be employed in a management or executive 
capacity; and 
(E) Evidence of the financial status of the United States operation. 
The issue in the present matter is whether the beneficiary 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. $ 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 
EAC 04 030 53 132 
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acting in a managerial capacity merely by virtue of the supervisor's supervisory 
duties unless the employees supervised are professional. 
Section 101(a)(44)(B) of the Act, 8 U.S.C. $ 1 101(a)(44)(B), defines the term "executive capacity" as an 
assignment within an organization in which the employee primarily: 
(i) directs the management of the organization or a major component or function of the 
organization; 
(ii) establishes the goals and policies of the organization, component, or function; 
(iii) exercises wide latitude in discretionary decision mahng; and 
(iv) receives only general supervision or direction from higher level executives, the board 
of directors, or stockholders of the organization. 
In a letter dated November 6, 2003 submitted with the initial petition, the petitioner described the 
beneficiary's job duties as follows: 
[The beneficiary] continues to manage [the petitioner's] US operations as the company seeks 
to gain increased market penetration for its product and services offerings. As a result of [the 
beneficiary's] guidance and efforts in opening our United States office, [the petitioner] has 
established productive relationships with retailers and other potential customers. [The 
beneficiary's] efforts have resulted in [the petitioner's] sale of in excess of $285,000.00 in 
products and services through September 30,2003. 
In order to alleviate [the beneficiary] fkom the day-to-day operation of Indosoft US, we have 
recently hired a Chief Financial Officer, as well as a Director of Marketing, allowing [the 
beneficiary] to concentrate on developing strategies to increase the business as well as 
negotiate contracts with vendors and other partners. . . In addition, the recent hirings will 
allow [the beneficiary] to develop additional business from existing customers of Indosoft 
India[.] 
The petitioner indicated on Form 1-129 that it employed one worker at the time the petition was filed. The 
petitioner also submitted its Massachusetts Employer's Quarter Report of Wages Paid for the third quarter of 
2003, which shows three employees: the beneficiary; the employee identified as the chief financial officer, 
who received wages of $1,600; and a third individual, who received wages of $2,000 for the quarter. 
On November 21, 2003, the director requested additional evidence to establish that the beneficiary will be 
employed in a managerial or executive capacity in the United States. Specifically, the director requested: (1) a 
comprehensive description of the beneficiary's proposed duties and an explanation as to how the duties will 
EAC 04 030 53132 
Page 5 
be managerial or executive in nature; (2) a breakdown of the number of hours devoted to each of the 
beneficiary's job duties on a weekly basis; (3) a list of all United States employees that identifies each 
employee by name and position title, along with a complete position description and a breakdown of the 
number of hours devoted to each of the employees' job duties on a weekly basis; (4) additional evidence 
showing the management structure of the organization, including the number of supervisors, their job titles 
and job duties; and (5) the executive/managerial skills required to perform the beneficiary's job duties, the 
amount of time the beneficiary devotes to executive duties, and how much time he allots to non-executive 
duties, and an explanation as to the degree of discretionary authority the beneficiary has over the petitioner's 
day-to-day operations. 
In response, the petitioner submitted a letter dated December 12, 2003 in which it described the beneficiary's 
job duties as follows: 
[The beneficiary] continues to execute the Business Plan, adhere to the corporation's 
revenue goals and budget, and have ultimate responsibility for the success of the 
company's products and services in the United States. 
Directs and coordinates formulation of new business opportunities to provide new 
revenue in order to continue and expand operations to maximize returns on products and 
services, and to increase productivity. 
[The beneficiary] reviews activity reports and financial statements to determine progress 
and status in attaining sales and revenue objectives and revises those objectives and plans 
in accordance with current conditions. 
Responsible for hiring initial key staff and performing performance reviews. 
Meets with management at international headquarters in Mumbai, India in order to plan, 
develop, and establish policies and objectives for [the petitioner's] operations. [The 
beneficiary] then brings those policies and objectives to the United States and implements 
them. 
The petitioner further stated that the beneficiary's "full time efforts are geared towards ensuring the continued 
success" of the petitioner and that he "will no longer be concerned with the routine day-to-day sales, technical 
and marketing functions" which the petitioner claims will be performed by the petitioner's employees and 
Indian headquarters. The petitioner also stated that the beneficiary's "primary focus will be in areas such as 
identifying emerging growth markets for [the petitioner's] products and services, identifying emerging 
technologies for new product development, and developing sound business strategies to implement both new 
and existing products and services into these growth markets." 
The petitioner also stated that since filing the petition, the beneficiary had hired two additional employees and 
had one employee resign. As of December 12, 2003, the petitioner claimed to employ the beneficiary as 
president, a chief financial officer, and two sales engineers. The petitioner indicated that the sales engineers 
provide live product demonstrations, introduce complementary products and services at the point of purchase, 
and promote product and service offerings to potential and existing customers. 
EAC 04 030 53 132 
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On December 22, 2003, the director denied the petition. The director determined that the petitioner had not 
established that the beneficiary will be employed in a qualifying executive capacity under the extended 
petition. The director specifically noted that the record does not show that the beneficiary will be managing a 
subordinate staff who will relieve him from performing non-qualifying duties. 
On appeal, counsel for the petitioner asserts that the director failed to consider all duties to be performed by 
the beneficiary and states that the petitioner submitted sufficient evidence to establish that the beneficiary's 
duties will be primarily managerial or executive in nature. Counsel further asserts that the director failed to 
take into account the reasonable needs of the organization in reviewing the petitioner's current staffing levels. 
Counsel states that the petitioner does not require significant staff at this time, and asserts that the chief 
financial officer relieves the beneficiary from performing non-qualifying duties. Counsel concludes that the 
beneficiary has met the "four-pronged test for executive capacity as described in section 101(a)(44) [of the 
Act.]" 
Upon review of the petition and the supporting evidence, the petitioner has not established that the beneficiary 
will be employed in a qualifying managerial or executive capacity under the extended petition. 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. 214.2(1)(3)(ii). The petitioner's description of the job duties must 
clearly describe the duties to be perfonned by the beneficiary and indicate whether such duties are either in an 
executive or managerial capacity. Id. Furthermore, the definitions of executive and managerial capacity have 
two parts. First, the petitioner must show that the beneficiary performs the high-level responsibilities that are 
specified in the definitions. Second, the petitioner must show that the beneficiary primarily performs these 
specified responsibilities and does not spend a majority of his or her time on day-to-day functions. Champion 
World, Inc. v. INS, 940 F.2d 1533 (Table), 1991 WL 144470 (9th Cir. July 30, 1991). 
On review, the petitioner has consistently claimed that the beneficiary will serve in an executive capacity. 
However, the petitioner has provided a vague and nonspecific description of the beneficiary's duties that fails 
to demonstrate what the beneficiary does on a day-to-day basis. For example, the petitioner states that the 
beneficiary "directs and coordinates formulation of new business opportunities," "executes major policies, 
programs and objectives," and "achieves maximum efficiency and profit objectives." The petitioner did not, 
however, explain what specific tasks are involved in "coordinating formulation" of business opportunities 
such that this responsibility could be distinguished from the company's routine sales and marketing functions. 
Nor did the petitioner define the policies, programs or objectives "executed" by the beneficiary, or explain 
what duties the beneficiary performs to "achieve maximum efficiency." Going on record without supporting 
documentary evidence is not sufficient for purposes of meeting the burden of proof in these proceedings. 
Matter of Soffici, 22 I&N Dec. 158, 165 (Comrn. 1998) (citing Matter of Treasure Craft of California, 14 
I&N Dec. 190 (Reg. Comm. 1972)). Reciting the beneficiary's vague job responsibilities or broadly-cast 
business objectives is not sufficient; the regulations require a detailed description of the beneficiary's daily job 
duties. The petitioner has failed to answer a critical question in this case: What does the beneficiary primarily 
do on a daily basis? The actual duties themselves will reveal the true nature of the employment. Fedin Bros. 
Co., Ltd. v. Sava, 724 F. Supp. 1103, 1108 (E.D.N.Y. 1989), aff'd, 905 F.2d 41 (2d. Cir. 1990)." 
EAC 04 030 53 132 
Page 7 
Further, rather than providing a specific description of the beneficiary's duties, the petitioner generally 
paraphrased the statutory definition of executive capacity. See section 101(a)(44)(A) of the Act, 8 U.S.C. tj 
1101(a)(44)(A). For instance, the petitioner depicted the beneficiary as establishing the goals and policies of 
the organization, directing the overall management of the organization, exercising wide latitude in 
discretionary decision-making, and receiving only general supervision or direction from the board of 
directors. However, conclusory assertions regarding the beneficiary's employment capacity are not sufficient 
to meet the petitioner's burden of proof. Merely repeating the language of the statute or regulations does not 
satisfy the petitioner's burden of proof. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1103, 1108 (E.D.N.Y. 
1989), a-d, 905 F. 2d 41 (2d. Cir. 1990); Avyr Associates Inc. v. Meissner, 1997 WL 188942 at "5 
(S.D.N.Y.). 
In the request for evidence, the director requested that the petitioner submit a comprehensive description of 
the beneficiary's duties, including a breakdown of the number of hours per week he allots to each job duty. 
The petitioner failed to submit this information in response and instead repeated the above-referenced vague 
job description. This evidence is critical as it would have established whether the beneficiary is primarily 
engaged in the claimed executive-level job duties. The purpose of the request for evidence is to elicit further 
information that clarifies whether eligibility for the benefit sought has been established. 8 C.F.R. 
fj 103.2(b)(8). The failure to submit requested evidence that precludes a material line of inquiry shall be 
grounds for denying the petition. 8 C.F.R. fj 103.2(b)(14). Upon review of the record, the petitioner has 
provided no comprehensive description of the beneficiary's duties such that the AAO can determine whether 
they are primarily qualifying in nature. The job description does not establish that the beneficiary will 
primarily perform in an executive capacity as claimed by counsel. The AAO cannot be expected to accept a 
vague job description and speculate as to the related executive job duties. As noted above, the actual duties 
themselves will reveal the true nature of the employment. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. at 1108. 
Counsel correctly asserts on appeal that, pursuant to section 101(a)(44)(C) of the Act, 8 U.S.C. 
fj 1101(a)(44)(C), if staffing levels are used as a factor in determining whether an individual is acting in a 
managerial or executive capacity, CIS must take into account the reasonable needs of the organization, in 
light of the overall purpose and stage of development of the organization. In the present matter, however, the 
regulations provide strict evidentiary requirements for the extension of a "new office" petition and require CIS 
to examine the organizational structure and staffing levels of the petitioner. See 8 C.F.R. 
fj 214.2(1)(14)(ii)(D). The regulation at 8 C.F.R. 5 214.2(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. 
At the time of filing, the petitioner was a one-year-old software solutions and services company that claimed 
to have projected gross annual income of $190,000. The firm employed the beneficiary as president, plus a 
chief financial officer. The petitioner also claimed to employ a director of marketing, who was hired in 
September 2003 and resigned in November or December 2003. Finally, in response to the director's request 
for evidence submitted on December 12, 2003, the petitioner indicated that it had hired two sales engineers 
subsequent to the filing of the petition on November 13, 2003. The petitioner did not submit any supporting 
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evidence to establish that it hired the additional personnel. Furthermore, the petitioner must establish 
eligibility at the time of filing the nonimrnigrant 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 I&N Dec. 248 (Reg. Comm. 1978). Finally, on appeal, counsel states that the chief financial officer 
relieves the beneficiary from performing non-qualifying duties, but does not mention the petitioner's claimed 
sales engineers. The MO cannot determine whether the petitioner actually employed these two individuals at 
the time the petition was adjudicated. Furthermore, the petitioner's forecasted statements of operations 
indicate that the petitioner only anticipates paying wages of $14,000, $15,000 and $17,000 in the fiscal years 
2003 through 2005. This document raises further questions about the petitioner's claim that it intends to 
employ a subordinate staff to relieve the beneficiary from performing non-qualifying operational duties. 
Therefore, the MO concurs with the director's determination that the petitioner did not submit evidence that 
it employed any subordinate staff members who would perform the actual day-to-day, non-managerial 
operations of the company. Based on the petitioner's representations, it does not appear that the reasonable 
needs of the petitioning company might plausibly be met by the services of the beneficiary as president and a 
chief financial officer. Although the petitioner indicates that some technical functions will be performed by 
the Indian parent company, the petitioner also indicated that the United States company requires staff to 
perform day-to-day sales, technical and marketing functions. It is not clear who would perform these 
functions, including such operational duties as project implementation and provision of training and other 
services to United States-based customers, if not the beneficiary. If the beneficiary is performing sales, 
marketing or technical duties, it must be noted that an employee who primarily performs the tasks necessary 
to produce a product or to provide services is not considered to be employed in a managerial or executive 
capacity. Matter of Church Scientology International, 19 I&N Dec. 593, 604 (Comm. 1988). 
Regardless, the reasonable needs of the petitioner serve 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 101(a)(44)(A) and (B) or the Act. As discussed above, the petitioner has not established this 
essential element of eligibility. 
When a new business is established and commences operations, the regulations recognize that a designated 
manager or executive responsible for setting up operations will be engaged in a variety of activities not 
normally performed by employees at the executive or managerial level and that often the full range of 
executive or managerial responsibility cannot be performed. The regulation at 8 C.F.R. 5 214.2(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. In order to qualify for an extension of L-1 nonimmigrant classification 
under a petition involving a new office, the petitioner must demonstrate through evidence, such as a 
description of both the beneficiary's duties and the staff of the organization, that the beneficiary will be 
employed in a primarily managerial or executive capacity. CIS reviews the totality of the record, including the 
descriptions of a beneficiary's duties and his or her subordinate employees, the nature of the petitioner's 
business, the employment and remuneration of employees and any other facts contributing to a compete 
understanding of a beneficiary's actual role in a business, when examining the managerial or executive 
capacity of a beneficiary. Neither the title of a position nor exercise of discretionary authority of a company 
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are, by themselves, indicators of managerial or executive capacity. In this matter, upon review of the totality 
of the record, the petition has not established that the beneficiary performs primarily executive or managerial 
duties. 
The petitioner indicates that it plans to hire additional managers and employees in the future. However, the 
petitioner must establish eligbility at the time of filing the nonirnrnigrant 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 I&N Dec. 248 (Reg. Comm. 1978). In the instant matter, the petitioner has 
not reached the point that it can employ the beneficiary in a predominantly managerial or executive position. 
In visa petition proceedings, the burden of proving eligibility for the benefit sought remains entirely with the 
petitioner. Section 29 1 of the Act, 8 U.S.C. $ 1361. Here, that burden has not been met. 
ORDER: The appeal is dismissed.