dismissed L-1A Case: International Trade And Consulting

U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Km. A3042 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
FILE: EAC 01 045 54856 Office: VERMONT SERVICE CENTER Date: FEB 2 3 2005 
IN RE: Petitioner: 
Beneficiary: 
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(15)(L) of the 
Immigration and Nationality Act, 8 U.S.C. 5 1101(a)(15)(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 office that originally decided your case. Any further inquiry must be made to that 
office. 
P. Wiemann, Director 
dministrative Appeals Office 
EAC 01 045 54856 
Page 2 
DISCUSSION: The nonimmigrant visa petition was denied by the Director, Vermont Service 
Center, and is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be 
dismissed. 
ndeavors to classify the beneficiary as a manager or 
Act (the Act), 
8 U.S.C. 8 1101(a)(15)(L). The petitioner is a subsidiary o cated in lndia and 
is engaged in the business of international trading and consultancy. It seeks to extend the petition's 
validity and the beneficiary's stay for three years as the U.S. entity's president at an annual salary of 
$40,000. 
On April 19, 2001, the director denied the petition because the petitioner failed to establish that the 
beneficiary has been or will be employed in a primarily executive or managerial c pacity. 
4 
On appeal, the petitioner's counsel states that the beneficiary "serves in an exec tive capacity" and 
"manages the affairs of the company." 
To establish L-1 eligibility under section 101(a)(15)(L) of the Immigration and ationality Act (the 
Act), 8 U.S.C. $ 1101(a)(15)(L), the petitioner must meet certain criteria. Speci ~cally, within three 
years preceding the beneficiary's application for admission into the United 1 tates, 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. Furthermore, 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. 
In relevant part, the regulations at 8 C.F.R. § 214.2(1)(3) state 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 (I)(l)(ii)(G) of this section. 
(ii) Evidence that the alien will be employed in an executive, managerial, or specializecl 
knowledge capacity, including a detailed description of the services to be performed. 
The issue in this proceeding is whether the beneficiary has been and will be employed in a primarily 
managerial or executive capacity. Section 101(a)(44)(A) of the Act, 8 U.S.C. 3 1101(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; 
EAC 01 045 54856 
Page 3 
. . 
11. 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; 
. . . 
111. 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 lOl(a)(#)(B) of the Act, 8 U.S.C. 5 1 101(a)(44)(B), provides: 
The term "executive capacity" means an assignment within an organization in which the employee 
primarily- 
1. directs the management of the organization or a major component or function of 
the organization; 
. . 
11. establishes the goals and policies of the organization, component, or function; 
... 
111. exercises wide latitude in discretionary decision-making; and 
iv. receives only general supervision or direction from higher level executives, the 
board of directors, or stockholders of the organization. 
On November 29, 2000, the petitioner submitted Form 1-129. On Form 1-129, the petitioner described 
the beneficiary's duties for the past three years and in the United States as: 
Establish goals and policies, business objectives, review activity reports [and] financial 
statements, [dlirect and [cloordinate financial programs, plan and develop public: 
relations policies, evaluate performance of executives, set guidelines, attend trade shows.. 
formulate human resource developments, . . ., direct [and] coordinate. 
On January 30, 2001, the director requested additional evidence concerning the beneficiary's foreign 
and proposed U.S. duties. 
In response to the director's request for additional information, the petitioner submitted the U.S. and 
foreign organizational charts and descriptions of the beneficiary's foreign and U.S. duties. The 
petitioner described the beneficiary's foreign duties as follows: 
EAC 01 045 54856 
Page 4 
Manager 
[Alnalyzing the manual system and studied the scope of automation of the system, 
specifications [and] documentation. [The beneficiary] [alssisted in the recruitment of the 
Production Engineers, technicians to implement the project and actively guided them in 
the whole process of project. [Tlrained the department heads to exploit the system 
features. 
Director 
[Alssumed responsibility of timely execution of export contracts, shipments etc. 
including procurement and domestic sales and international sales. He was also 
responsible for recruitment of the technical and managerial staff. Formulate corporate 
policy regarding targets and schedules. 
In addition, the petitioner submitted a description of its employees' duties listed on the foreign 
organizational chart. 
In relation to the U.S. business, the petitioner submitted a description of the beneficiary's U.S. duties. 
The petitioner listed the beneficiary's duties as president: 
Plans, develops and establish[es] policies and objectives of the business organization 
in accordance with the board of directives and corporation charters. 
Confers with company officials to plan business objectives to develop organizational 
policies to coordinates [sic] functions and operations between divisions and 
department and to establish responsibilities and procedures for attaining objectives. 
Reviews activity reports and financial statements to determine progress and status in 
attaining objectives and revises objectives and plans in accordance with current 
conditions. 
Directs and coordinates formulations of financial programs to provide funding for 
new or continuing operations to maximize returns on investments and to increase 
productivity. 
Plan[s] and develops public relation[s] policies designed to improve company's 
image and relations with customers, employees, stockholders and public. 
Evaluates performance of executives of compliance with established policies and 
objectives of firm and contributions in attaining objectives. 
* Supervise(s1 a team of senior managerial and service managers who provide technical 
support to projects. 
EAC 01 045 54856 
Page 5 
Further, the petitioner claims that the beneficiary, as president, will also be responsible for: 
Supervis[ing] a team of top management person[nel] who run the day-to-day 
operation, such as vice-president, managers, etc. 
Provid[ing] key strategic technology and project and human resources development 
policies. 
Set[ting] guidelines for qualify management [sic] and attend trade shows. 
The petitioner also claims that the position requires that the beneficiary work 40 hours per week. 
Additionally, the petitioner is planning to employ other "persons to do day-to-day activity for the 
[Ulnited States firm." 
On April 19, 2001, the director denied the petition because the petitioner failed to establish that the 
beneficiary has been and will be employed in a primarily managerial or executive capacity. The 
director found that the majority of the beneficiary's time was utilized performing non-qualifying 
duties. 
On appeal, counsel states that the beneficiary will continue "managing the affairs of the U.S. entity" 
and "carrying on his duties in a true executive capacity." In addition, the petitioner claims that the 
beneficiary is "truly responsible for carrying on day-to-day activities of [the] U.S. corporation." 
In 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). On review, the petitioner has 
provided a vague and nonspecific description of the beneficiary's U.S. and foreign duties that fails to 
establish what the beneficiary does on a day-to-day basis. The beneficiary's duties are described as 
"analyzing the manual system," "plan[ning], develop[ing] and establish[ing] policies and objectives 
of the business organization," and "coordinat[ingl functions and operations between divisions and 
departments." However, these duties are generalities that fail to enumerate any details such as the 
concrete policies or objectives that the beneficiary will plan, develop, or establish. Going on 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. Comm. 
1972). Specifics are clearly an important indication of whether a beneficiary's duties are primarily 
executive or managerial in nature, otherwise meeting the definitions would simply be a matter of 
reiterating the regulations. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1103 (E.D.N.Y. 1989), aff'd, 
905 F.2d 41 (2d. Cir. 1990). 
Further, the petitioner generally paraphrased the statutory definition of executive and managerial 
capacity. See section 101(a)(44)(A) of the Act, 8 U.S.C. 4 1101(a)(44)(A). For instance, the 
petitioner depicted the beneficiary as establishing policies. However, conclusory assertions regarding 
the beneficiary's employment capacity are not sufficient. 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), afd, 905 F. 2d 41 (2d. Cir. 1990); Avyr Associates Inc. v. 
Meissner, 1997 WL 188942 at "5 (S.D.N.Y.). 
EAC 01 045 54856 
Page 6 
In addition, the petitioner described the beneficiary's U.S. duties as "plan[ning] and develop[ingJ 
public relation[s] policies designed to improve [the] company's image and relations with customers, 
employees, stockholders[,] and [the] public." The petitioner's description of the beneficiary's duties 
suggests that he performs duties that comprise marketing tasks. Marketing duties, by definition, 
qualify as performing a task necessary to provide a service or produce a product. 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 (Cornrn. 1988). 
Moreover, the petitioner claims that the beneficiary is "truly responsible for carrying on day-to-day 
activities of [the] U.S. corporation." Based on the current record, the AAO is unable to determine 
whether the claimed managerial or executive duties constitute the majority of the beneficiary's duties, 
or whether the beneficiary primarily performs non-managerial or non-executive administrative or 
operational duties. Although specifically requested by the director, the petitioner's description of the 
beneficiary's job duties does not establish what proportion of the beneficiary's duties is managerial or 
executive in nature, and what proportion is actually non-managerial or non-executive. See Republic of 
Transkei v. INS, 923 F.2d 175, 177 (D.C. Cir. 1991). 
The AAO notes that the petitioner stated in its March 5, 2001 response to the director's request for 
additional evidence that item number six indicated the number of hours devoted to the beneficiary's 
job duties on a weekly basis. In addition, the petitioner stated that it submitted an organizational chart 
with an hourly breakdown of the beneficiary's duties in the United States. Although the petitioner 
indicated that the beneficiary will be working 40 hours per week, the petitioner failed to submit the 
number of hours the beneficiary will devote to each of the listed duties. Failure to submit requested 
evidence that precludes a material line of inquiry shall be grounds for denying the petition. 8 C.F.R. 3 
103.2(b)(14). 
Additionally, the petitioner stated in the March 5, 2001 response to the director's request for 
additional evidence that the beneficiary "supervises a team of senior managerial and service managers 
who provide technical support to the projects." However, the petitioner has neither presented 
evidence to document the existence of these employees nor identified the services these individuals 
provide. The petitioner has not explained how the services of these employees obviate the need for 
the beneficiary to primarily conduct the petitioner's business. Again, without documentary evidence 
to support its statements, the petitioner does not meet its burden of proof in these proceedings. Matter 
of Treasure Craft of Califomia,l4 I&N Dec. at 190. 
The petitioner also claimed that it is "planning to employ other persons to do day-to-day activity for 
the [Ulnited States firm." The petitioner must establish eligibility at the time of filing the 
nonimmigrant visa petition. A visa petition may not be approved based on speculation of future 
eligibility or after the petitioner becomes eligible under a new set of facts. See Matter of Michelin 
Tire Corp., 17 I&N Dec. 248 (Reg. Comm. 1978); Matter of Katigbak, 14 I&N Dec. 45,49 (Cornm. 
197 1). 
After careful consideration of the evidence, the AAO concludes that the beneficiary has not been and 
will not be employed in a primarily managerial or executive capacity. For this reason, the petition 
may not be approved. 
EAC 01 045 54856 
Page 7 
Another issue not indirectly raised by the director is whether the petitioner established that the 
foreign company employed the beneficiary in a primarily managerial or executive capacity. .As 
previously stated, the petitioner must submit evidence that within three years preceding the 
beneficiary's application for admission into the United States, the foreign organization employed 
the beneficiary in a qualifying managerial or executive capacity, or in a specialized knowledge 
capacity, for one continuous year. See 8 C.F.R. 5 214.2(1)(3)(v)(b). On review, the petitioner 
provided a vague description of the beneficiary's duties that failed to establish what day-to-day 
duties the beneficiary performs. For instance, on the Form 1-129, the petitioner described the 
benefi ciary's foreign duties as "establish[ing] the goals and policies, business objectives, review 
activity reports [and] financial statements." Going on record without supporting documentary 
evidence is not sufficient for purposes of meeting the burden of proof in these proceedings. 
Matter of Treasure Crafi of California, 14 I&N Dec. 190 (Reg. Comm. 1972). The AAO 
concludes that the petitioner has failed to establish that the beneficiary has been employed in a 
qualifying managerial or executive capacity abroad as required by 8 C.F.R. 5 214.2(1)(3)(v)(b). 
For this additional reason, the petition may not be approved. 
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 the grounds for denial in the initial 
decision. See Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 2001), 
afS'd. 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). 
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. $ 1361. Here, that burden has not been met. 
Accordingly, the appeal will be dismissed. 
ORDER: The appeal is dismissed.