dismissed L-1A Case: Information Technology

U.S. Department of Homeland Secur* 
20 Massachusetts Ave. N.W., Rm. 3000 
Washington, DC 20529 
identi64 data dele~aj to 
Wvent clearly unwmw 
invasion of persow pri-y 
US. Citizenship 
and Immigration 
Services 
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PUBLIC COPY 
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File: EAC 08 071 52021 Office: VERMONT SERVICE CENTER Date: AUG 27 2%B 
Petition: 
 Petition for a Nonimmigrant Worker Pursuant to Section 10 1 (a)(15)(L) of the Immigration 
and Nationality Act, 8 U.S.C. 8 1 101(a)(l5)(L) 
IN BEHALF OF PETITIONER: 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to 
the office that originally decided your case. Any further inquiry must be made to that office. 
/Y ~obert P. Wiemann, Chief 
Administrative Appeals Office 
EAC 08 071 52021 
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 nonirnrnigrant petition seeking to employ the beneficiary as its software test manager 
as an L- 1 A nonimrnigrant intracompany transferee pursuant to section 10 1 (a)(15)(L) of the Immigration and 
Nationality Act (the Act), 8 U.S.C. 1101(a)(15)(L). The petitioner is a corporation organized in the State of 
New Jersey that is engaged in information technology. The petitioner claims that it is the subsidiary of 
MindTree Consulting, Ltd., located in Bangalore, India. The petitioner seeks to employ the beneficiary in the 
United States for a period of three years. 
The director denied the petition concluding that the petitioner did not establish that: (1) the beneficiary had 
been employed abroad in a primarily managerial or executive capacity; or (2) the beneficiary will be 
employed in the United States in a primarily managerial or executive capacity. Specifically, the director 
noted that the beneficiary appeared to be a team leader on various projects, but did not appear to have 
traditional managerial authority, such as the authority to hre and fie employees or manage a specific 
subdivision of the companies. 
Counsel for 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 restates the 
beneficiary's duties and asserts that these duties meet the statutory definition of "managerial capacity." 
Counsel provides additional details regarding the nature of the projects which the beneficiary manages in an 
attempt to clarify the nature of the beneficiary's responsibilities. 
To establish eligibility for the L-1 nonimrnigrant 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. tj 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. 
EAC 08 071 52021 
Page 3 
(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. 
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 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 making; and 
(iv) 
 receives only general supervision or direction fkom higher level executives, the board 
of directors, or stockholders of the organization. 
The first issue in the present matter is whether the beneficiary was employed abroad by the foreign entity in a 
primarily managerial or executive capacity. Specifically, the regulations require that a qualifying 
EAC 08 071 52021 
Page 4 
organization must have employed the beneficiary in a qualifying managerial or executive capacity for one 
continuous year within three years preceding the beneficiary's application for admission into the United 
States. 
In this matter, it is noted that the Form 1-129, Petition for a Nonimmigrant Worker, was filed on January 10, 
2008. Therefore, for purposes of this analysis, the petitioner is required to demonstrate that the beneficiary 
was employed in a qualifying managerial or executive capacity for at least one continuous year during the 
period from January 10,2005 through January 10,2008. 
In a letter fiom the petitioner dated January 7, 2008, the petitioner claimed that the beneficiary joined the 
foreign entity as a software test manager on July 7, 2003. With regard to the beneficiary's position and 
duties, the petitioner stated as follows: 
[The beneficiary] leads medium to large Software Quality Control and Software Quality 
Assurance projects. As a Software Test Manager, his responsibilities include the following: 
Lead teams of test coordinator and test analysts, responsible for performing testing 
activities supporting deployment of new systems, system and environment 
enhancements and upgrades, and defect resolution. 
Manage overall testing schedules to meet project timelines by prioritizing testing 
efforts and obtaining and assigning resources. 
Oversee and assess test artifacts for completeness, accuracy, and timeliness. 
Actively mentor and develop all team members. 
Direct the planning, scheduling, and execution of project-level testing activities. 
Establish testing strategies, processes and standards. 
Persuade staff to become a cohesive team with regards to strategies, processes and 
standards. 
Collaborate with project management, production support, and software development 
teams to construct and maintain a schedule of changes to the software enterprise. 
Ensure changes meet quality and compliance standards, and approve their release 
into the production environment. Initiate data-driven continuous quality 
improvement in testing strategies[.] 
Aggressively advocate and publicize the benefit of software and infrastructure testing 
activities to business users and information technology teams. 
Collect and manage meaningfbl metrics that show a roadmap of process 
improvement and reduction of expenses. 
The petitioner also submitted a letter dated December 10, 2007 from, Senior Associate - 
People Function at the foreign entity, who outlined the various duties the beneficiary performed since his 
employment commenced in July 2003. In relevant part, ~r. stated the following:' 
1 
For purposes of this analysis, only the duties performed during the relevant period (from January 10,2005 to 
January 10, 2008) will be examined herein. 
EAC 08 071 52021 
Page 5 
Jan 2004 to Dec 2005: Worked as Team Lead on projects for IT Services on web based 
enterprise applications developed using Microsoft.NET, ORACLE, and XML. He played the 
role of Test Manager in the projects and was involved in Test planning, team set up, 
requirements analysis, Test case design, defect reporting and tracking. He was also involved 
in training the team on client specific tools, functional and regression testing. Defects were 
raised and maintained through Clear Quest tool. 
Jan 2006 - Present: Working as Test Manager on projects for IT Services on web based 
enterprise applications developed using Microsoft.NET, ORACLE, and XML. He played the 
role of Test Manager in the projects and was involved in Analyzing and Understanding the 
requirements. He is also responsible for Test Planning, Status Reporting, training the team on 
new domains, task allocation to the team, planning and tracking the task execution, defects 
analysis, client coordination, Mentoring the team and owns overall test activities. 
On January 18, 2008, the director requested additional evidence. 
 Specifically, the director requested 
additional evidence to establish that the beneficiary had been employed in a managerial or executive capacity 
abroad, including but not limited to a comprehensive overview of the beneficiary's duties, position 
descriptions and job titles for all of beneficiary's subordinates, and the amount of time the beneficiary 
allocated to manageriallexecutive functions in comparison to the time allocated to non-qualifying functions. 
In response, the petitioner submitted a letter dated January 23, 2008, in which it stated that during his 
employment abroad, the beneficiary managed software testing teams of 4 to 42 software quality assurance 
professionals involved in projects for the petitioner's international clients. It also included the following 
updated description of duties for the beneficiary: 
The role of the software test manager or test lead is to effectively lead the testing team. To 
fulfill this role, the lead must understand the discipline of testing and how to effectively 
implement a testing process while fulfilling the traditional leadership roles of a manager. The 
manager must manage and implement or maintain an effective testing process. That involves 
creating a test infrastructure that supports robust communication and a cost-effective testing 
framework. 
What the test manager is responsible for: 
Defining and implementing the role testing plays within the organization. 
Defining the scope of testing within the context of each releaseldelivery. 
Deploying and managing the appropriate testing framework to meet the testing 
mandate . 
Implementing and evolving appropriate measurements and metrics. 
o 
 To be applied against the product under test. 
o To be applied against the testing team. 
Planning, deploying and managing the testing effort for any given 
engagementlrelease. 
EAC 08 071 52021 
Page 6 
Managing and growing testing assets required for meeting the testing mandate: 
o Team members 
o Testing tools 
o Testing processes 
Retaining skilled testing personnel. 
As a Software Test Manager with [the foreign entity] in India, [the beneficiary] led various 
testing projects, which consisted of teams ranging in size of anywhere from 4 to 42 testing 
professionals. As discussed above, he was responsible for planning, deploying, and 
managing the testing efforts for these engagements. On these assignments, he was 
responsible for the management of the team, testing processes, and testing tools. 
No additional evidence, such as payroll records or specific details regarding the foreign entity's other 
employees and the beneficiary's subordinates, was submitted. 
On February 6, 2008 the director denied the petition. The director noted that despite the petitioner's 
contentions that the beneficiary functioned in a qualifying position, the information submitted with regard to 
the beneficiary's position abroad indicated that he merely performed various lead positions on teams and 
managed testing on products and systems. The director found that nothing in the record indicated that he 
functioned at a senior level within the organizational hierarchy of the foreign entity, and further concluded 
that the petitioner did not demonstrate that the beneficiary exercised traditional managerial authority over the 
hiring, firing, and personnel actions associated with a managerial position. 
On appeal, the petitioner re-emphasizes the importance of the beneficiary's duties, and claims that all of the 
employees managed by the beneficiary are professionals. The petitioner supplements the record with a chart 
outlining the names of the beneficiary's claimed subordinates, their position titles, degrees held, skills, and 
years of experience. 
Upon review, the AAO concurs with the director's findings. 
When examining the executive or managerial capacity of the beneficiary, the AAO will look first to the 
petitioner's description of the job duties. See 8 C.F.R. 5 214.2(1)(3)(ii). The 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 prove 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, 1.991). 
In this matter, the petitioner provided a lengthy description of duties for the beneficiary, both with the petition 
and in response to the request for evidence. However, the description of duties fails to specifically state the 
exact nature of the beneficiary's duties. In fact, a review of the details provided by the petitioner suggests 
that the beneficiary has been primarily engaged in the manifestation of the foreign entity's products and 
services, as opposed to maintaining managerial or supervisory authority over subordinate employees. For 
EAC 08 071 52021 
Page 7 
example, duties such as "implementing and evolving appropriate measurements and metrics," "establish 
testing strategies, processes and standards, and "collaborate with project management, production support, 
and software development teams to construct and maintain a schedule of changes to the software enterprise'' 
are tasks that clearly require the beneficiary's direct participation or involvement. Based on this, it appears 
that the beneficiary plays an intricate and active role in the implementation of the foreign entity's software 
testing projects, and does not delegate his responsibilities to others. 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 
Int'l., 19 I&N Dec. 593, 604 (Comm. 1988). 
Upon review of the request for evidence, it is evident that the director specifically requested to differentiate 
between the amount of time the beneficiary devoted to managerial or executive duties and non-qualifymg 
duties. Moreover, the director requested the petitioner to a statement clarifying what type of managerial 
and/or executive skills were required to perform these duties. Finally, the director asked the petitioner to 
clarify the degree of discretionary authority the beneficiary had over day-to-day operations in the foreign 
entity. 
The petitioner's response failed to adequately address the director's queries. For this additional reason, the 
AAO is unable to conclude that the beneficiary was employed abroad in a qualifying capacity. Whether the 
beneficiary is a managerial or executive employee turns on whether the petitioner has sustained its burden of 
proving that his duties are "primarily" managerial or executive. See sections 101(a)(44)(A) and (B) of the 
Act. Despite the director's request for additional information, the petitioner failed to document what 
proportion of the beneficiary's duties would be managerial functions and what proportion would be 
non-managerial. The petitioner lists the beneficiary's duties as including both managerial and operational 
tasks, but fails to quantify the time the beneficiary spends on them. This failure of documentation is 
important because many of the beneficiary's daily tasks, such as those listed above, do not fall directly under 
traditional managerial duties as defined in the statute. For this reason, the AAO cannot determine whether the 
beneficiary is primarily performing the duties of a function manager. See IKEA US, Inc. v. US. Dept. of 
Justice, 48 F. Supp. 2d 22,24 (D.D.C. 1999). 
On appeal, it is noted that for the first time, the petitioner claims that the beneficiary is in fact performing 
managerial duties by virtue of his supervision of professional employees. In support of this contention, the 
petitioner submits a list which identifies all the beneficiary's claimed subordinate employees by name. The 
document further provides the educational qualifications of each subordinate, as well as their position titles, 
experience, and primary skills. This evidence, however, will not be considered. 
The regulation states that the petitioner shall submit additional evidence as the director, in his or her 
discretion, may deem necessary. The purpose of the request for evidence is to elicit further information that 
clarifies whether eligibility for the benefit sought has been established, as of the time the petition is filed. See 
8 C.F.R. $5 103.2(b)(8) and (12). The failure to submit requested evidence that precludes a material line of 
inquiry shall be grounds for denying the petition. 8 C.F.R. 5 103.2(b)(14). 
EAC 08 071 52021 
Page 8 
Where, as here, a petitioner has been put on notice of a deficiency in the evidence and has been given an 
opportunity to respond to that deficiency, the AAO will not accept evidence offered for the first time on 
appeal. See Matter of Soriano, 19 I&N Dec. 764 (BIA 1988); see also Matter of Obaigbena, 19 I&N Dec. 533 
(BIA 1988). It is noted that the request for evidence specifically asked the petitioner to submit an overview of 
the beneficiary's subordinates, including their job titles, job duties, and a statement identifying all subordinate 
managers. However, the petitioner failed to submit such evidence in its January 23, 2008 response. If the 
petitioner had wanted the submitted evidence to be considered, it should have submitted the documents in 
response to the director's request for evidence. Id. Under the circumstances, the AAO need not and does not 
consider the sufficiency of the evidence submitted on appeal. 
The record is not persuasive in establishing that the beneficiary was employed abroad in a primarily 
managerial or executive capacity. For this reason, the appeal will be dismissed. 
The second issue in the present matter is whether the beneficiary will be employed by the United States entity 
in a primarily managerial or executive capacity. 
In the letter of support dated January 7, 2008, the director described the beneficiary's proposed duties in the 
United States as follows: 
[The beneficiary] will lead Software Quality Control & Software Quality Assurance efforts 
for CIT' development and maintenance projects. As a Software Test Manager with [the 
petitioner] in the United States, [the beneficiary] will be placed on [the petitioner's payroll], 
and he will report directly to [the petitioner's] management. He will report directly to [the 
petitioner's] Senior Vice President & Chief Technology Officer, IT Services business, Mr. 
-. The following is a detailed description of [the beneficiary's] proposed duties 
and responsibilities: 
Test strategy development, i.e. defining testJautomation strategy and plan, test tool 
evaluation and selection, and developing skills and relevant roles, particularly around 
automation 
Test process management and measurement, i.e. guiding quality policies, processes 
and standards, and defining quality goals and test measurements, analyze and define 
test coverage 
= 
 Test project management i.e. test planning and effort estimation, task, and project 
scheduling, project tracking and reporting, financial analysis and ROI, metric 
tracking and presentation 
Management of team of testerslengineers including goal-settindmanaging both 
project & performance of cohesive team 
Management of general team issues, such as individual performance reviews, 
resources assignments, mentoring, etc. 
* The petitioner's client. 
EAC 08 071 52021 
Page 9 
On January 18, 2008, the director requested additional evidence. Similar to the request pertaining to his 
position abroad, the director also requested additional evidence to establish that the beneficiary will be 
employed in a managerial or executive capacity in the United States. Specifically, the director asked the 
petitioner to differentiate between the amounts of time the beneficiary would devote to managerial or 
executive duties and non-qualifying duties, as well as a statement clarifying what type of managerial andlor 
executive skills were required to perform these duties. The director also asked the petitioner to clarifl the 
degree of discretionary authority the beneficiary would exercise over day-to-day operations, and requested 
confirmation of the number of subordinate employees the beneficiary would manage, along with their job 
titles and job descriptions. 
In response, the petitioner submitted a letter dated January 23, 2008. The petitioner did not address the 
beneficiary's proposed subordinates or their titles or positions in the United States. Instead, it reiterated the 
same overview of the beneficiary's proposed duties which the director had found to be insufficient. 
Specifically, the petitioner provided the identical description of the beneficiary's proposed position in the 
United States as it did in its letter dated January 7, 2008. No additional evidence, such as payroll records or 
specific details regarding the petitioner's other employees and the beneficiary's subordinates, was submitted. 
On February 6, 2008 the director denied the petition. Again, the director noted that despite the petitioner's 
contentions that the beneficiary functioned in a qualifling position, the information submitted with regard to 
the beneficiary's proposed position in the United States indicated that he would be performing virtually 
identical duties to those he had performed abroad, such as various lead positions on teams and managing 
testing on products and systems. The director found that nothing in the record indicated that he would 
function at a senior level within the organizational hierarchy of the petitioner, and that the record was devoid 
of evidence of his authority to hire and fire personnel. 
On appeal, the petitioner again claims that the beneficiary has satisfied the regulatory requirements. The 
petitioner claims that the beneficiary will plan, organize, supervise, direct, and coordinate professional 
personnel. As a result, the petitioner asserts that the beneficiary is thus supervising the required personnel, 
and concludes by requesting reconsideration of the denial. 
Again, the AAO concurs with the director's findings. 
For reasons similar to those discussed above, the petitioner has failed to establish that the beneficiary will be 
employed in the United States in a primarily managerial or executive capacity. As previously discussed, the 
AAO must review the petitioner's description of the job duties, pursuant to 8 C.F.R. 9 214.2(1)(3)(ii), to 
determine whether the beneficiary primarily performs managerial or executive responsibilities and does not 
spend a majority of his time on day-to-day functions. Champion World, Inc. v. INS, 940 F.2d 1533. 
In this matter, the petitioner provided a brief description of the beneficiary's proposed duties, which was 
repeated again in response to the request for evidence. This description, like the description of his duties 
abroad, again suggests that the beneficiary will be primarily engaged in the manifestation of the petitioner's 
IT products and services, as opposed to maintaining managerial or supervisory authority over subordinate 
employees. For example, duties such as "test planning and effort estimation, task, and project scheduling, 
EAC 08 071 52021 
Page 10 
project tracking and reporting, financial analysis and ROI, metric tracking and presentation," "guiding quality 
policies, processes and standards, and defining quality goals and test measurements, analyze and define test 
coverage, and "defining testlautomation strategy and plan, test tool evaluation and selection, and developing 
skills and relevant roles, particularly around automation" demonstrate that the beneficiary will be directly 
involved in the testing for the petitioner's technology products and services. Again, 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 Int 'I., 19 I&N Dec. at 604. 
Upon review of the request for evidence, it is evident that the director specifically requested that the petitioner 
differentiate between the amount of time the beneficiary devoted to managerial or executive duties and non- 
qualifying duties. Moreover, the director requested the petitioner to provide statements clarifying what type 
of managerial andlor executive skills were required to perform these duties, as well as the degree of 
discretionary authority the beneficiary had over day-to-day operations in the foreign entity. Finally, the 
petitioner was asked to submit information regarding the proposed subordinates of the beneficiary in the 
United States. 
The petitioner's response failed to adequately address the director's queries. 
 The petitioner merely 
resubmitted the previously-submitted description of duties, and provided no additional information to address 
the director's queries. Moreover, no additional documentation or new evidence was submitted on appeal to 
address these issues. Failure to submit requested evidence that precludes a material line of inquiry shall be 
grounds for denying the petition. 8 C.F.R. 9 103.2(b)(14). 
For this additional reason, the AAO is unable to conclude that the beneficiary will be employed in the United 
States in a qualifying capacity. For this additional reason, the appeal will be dismissed. 
The petition will be denied for the above stated reasons, with each considered as an independent and 
alternative basis for denial. In visa petition proceedings, the burden of proving eligibility for the benefit 
sought remains entirely with the petitioner. Section 291 of the Act, 8 U.S.C. 6 1361. Here, that burden has 
not been met. 
ORDER: The appeal is dismissed.