dismissed L-1A Case: Internet Postal Services

U.S. Department of Homeland Security 
20 Massachusetts Ave . N.W., Rm. A3042 
Wash~ngton, DC 20529 
identifying data deleted to 
prevent clearly unwa 
invasion of persona8 privacy 
U.S. Citizenship 
and Immigration 
FILE: SKC 02 080 50650 Office: TEXAS SERVICE CENTER Date: JUN 1 6 2005 
IN RE: 
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section I01 (a)(15)(L) of the Immigration 
and i'dat~onalit) Act. 8 U.S.C. tj 1101(a)(15)(L) 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals OfXce in your case. All documents have been returned to 
the oftice that origini~lly decided your case. Any further inquiry must be made to that office. 
SRC 02 080 50650 
Page 2 
DISCUSSION: The nonimmigrant visa petition was denied by the Director, Tcxas Service Center. The 
matter is now before the Admiriistrative Appeals Office (AAO) on appeal. The appeal will be dismissed. 
According to the documentary evidence contained in the record, the petitioner was incorporated in 2000 and 
claims to be an internet postal services business. The petitioner clairns that the U.S. entity is a subsidiary of 
located is Ruenos Aires, Argentina. The petitioner declares two employees. It seeks to 
extend its authorization to employ the beneficiary temporarily in the United States as its general manager for 
three years, at a weekly salary of $600.00. The director determined that the petitioner had not submitted 
sufficient evidence to demonstrate that: (I) the beneficiary had been or would continue to be employed by the 
U.S. entity primarily in a nianagerial or executive capacity: and (2) the U.S. entity had been doing business 
during the previous year. 
On appeal, the petitioner disagrees with the director's determination and asserts that the beneficiary's duties 
have been and will continue to be managerial or executive in nature, and that the U.S. cntity has been engaged 
in the regular, systematic and continuous provision of goods and services for the past year. 
To establish L-l eligibility under section 101(a)(I S)(L) of the Immigration and Nationality Act (the Act), 
8 U.S.C. $ 1101(a)(I 5)(L). the petitioner must demonstrate that the beneficiary, within three years preceding 
the beneficiary's application for admission into the United States, has been employed abroad in a qualifying 
managerial or executive capacity, or in a capacity involving specialized knowledge, for one continuous year 
by a qual~fying organization. and seeks to enter the United States temporarily in order to continue to render 
his or her services to the same employer or a subsidiary or affiliate thereof, in a capacity that is managerial, 
executive, or involves specialized knowledge 
The regulation at 8 C.F.R. 5 2 14.2(1)(1 )(ii) states. in part: 
hfrucotttlxiny tru)~s@ree means an alien who, within three years preceding the time of his or her 
application for admission into the United States, has been employed abroad continuously for one 
year by a firm or corporation or other legal entity or parent, branch, atsliate, or subsidiary 
thereof. and who seeks to enter the United States temporarily in order to render his or her 
services to a branch of the same employer or a parent, afiliate, or subsidiary thereof in a 
capacity that is managerial, executive, or involves specialized knowledge. 
The regulation at 8 C.F.R. $ 214.2(1)(3) states that ail ~ndividual 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 arc qualifying organizations as defined in paragraph (1)(1)(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) t.,vidence that the alien has at least one continuous year of full-time employment 
abroad with a qualifying organization with the three years preceding the filing of the 
petition. 
SRC 02 080 50650 
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(iv) Evidence that the alien's prior year of employment abroad was in a position that was 
managerial, executive or involved specializdd knowledge and that the alien's prior 
education, training, and employment qualifies himlher to perform the intended serves 
in the llnited 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. 5 214.2(1)(14)(ii) states that a visa petition under section 101(a)(15)(L) 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 Unitcd States entity has been doing business as defined in paragraph 
(I )(I )(ii)(tl); 
C) A statcment 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 managerial or executive capacity; 
and 
E) Evidence of the financial status of the United States operation. 
The first issue in this proceeding is whether the petitioner has submitted sufficient evidence to establish that 
the beneficiary has been and will be ernployed by the U.S. entity primarily in a managerial or executive 
capacity. I 
Section 101(a)(44)(A) of the Act, 8 U.S.C. (i 1 10 i(a)(44)(A), provides: 
The term "managerial capacity" means an assignment within an organization in which the 
employee prirnarily- 
(i) Manages the organization, or a department, subdivision, function, or 
component of the organiiration; 
(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 
e~nployee is d~rectly supervised. functions at a senior level within the 
organtzational hierarchy or with respect to the function managed; and 
SRC 02 080 50650 
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(iv) Exercises discretion over the day-to-day operations of the activity or 
function for which the en~ployee has authority. A first-line supervisor is 
not considered to be acting in a managerial capacity merely by virtue of 
the supe~visor's supervisory duties unless the employees supervised are 
professional. 
Section 101 (a)(44)(B) of the Act, 8 U.S.C. 3 1 101 (a)(44)(B), provides: 
The tcrm "executive capacity" means an assignment within an organizatidn 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 from higher level 
executives, the board of directors, or stockholders of the organization. 
The petitioner initially stated that the beneficiary had been and would continue to be the company's general 
manager in charge of supervising the various departments of the company. 
In a letter of support, dated January 7,2002, the petitioner described the beneficiary's duties as follows: 
[Thc beneficiary] has been the general manager of the company and is in charge of 
supervisir~g the various departments of the company; he is an expert in the computer field and 
his services are needed in the company to continue with our growth and developing our 
business plan. He has the capacity to hire the necessary personnel, contract the necessary 
services needed for our business, and together with the directors of the parent company will 
set policy, strategy. and procedures, and goals. [sic] 
In response to the director's request for additional evidence on this subject, the petitioner submitted a 
breakdown of the beneficiary's duties as: 
The duties of the beneficiary during the past year have been: 
, a- Supervision of the various departments of the company - 70% 
b- Research - 15% 
c- Legal and accountant mattt:rs - 10% 
d- Attcnding fairs, developing plans, and others - 5% 
The director determined that the record contained insufficient evidence to demonstrati that the beneficiary 
had been or wo~~ld be employed primarily in a managerial or executive capacity. The director stated that the 
evidence failed to show that the petitioner employed any other person besides the beneficiary. The director 
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further stated that absent the support staff and/or duties that reflect managerial responsibilities, the petitioner 
had failed to show that the beneficiary had been functioning in a managerial or executive capacity. 
On appeal, the petitioner argues that the (IS. entity is engaged in E-business; and that therefore, there is no 
need for multiple employees. 'The petitioner also argues that it employs 13 individuals worldwide who work 
as independent contractors. The petitioner continues by arguing that the Internet sites will be handled 
automatically. without the need for much human intervention. The petitioner asserts that the beneficiary's 
duties have included research on the North American market. start up of the U.S. entity, and day-to-day office 
work. The petitioner described the beneficiary's job duties as: 
Making the business plan a reality 
-To adapt it to the changes of the market and to mark road map 
;To close down on strategic alliances 
-To n~ahe agreements with the main ad-networks 
-To know how to observe new trends and ncw opportunities 
-To determine changes in our services and make them better 
-To determine the new products that the market demands 
Handling and superv~sion of the personnel 
-Allocation of tasks and duties 
-Supervising the tasks of the employees 
-To mark the course of changes the employees need 
-Keeping the effectiveness and dynamism in the course 
Accounting, tax reports and payment 
-Bookkeeping of the conlpany 
-Paying wages to employees 
-Paying our providers and office rent 
-Reporting and payment of payr~ll taxes 
-Reporting and payment of income taxes 
Handllng with the providers 
-Selection and hiring of,good and reliable providers 
-Payments to suppliers 
-Searching analyzing the market of providers for better prices , 
Handling with banks 
-Bank statement controls 
-Credit card payments 
-Building an excellent credit history 
-Searching for cost-saving opportunities. 
On appeal, the pet~tioner submitted copies of itr' IRS Form I 120, Corporate Income 'Tax Return for 2001, IRS 
Form 941, Employer's Quarterly Federal Tax Return ending December 3 1, 2001, State Form UCT-6, State 
Employer's Quarterly Report for the year 2001, and copies of employment agreements with independent 
contractors. 
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On review, the record as presently constituted is not persuasive in demonstrating that the beneficiary has been 
or will be employed in a primarily managerial or executive capacity. The petitioner is not a new office for 
purposes of evaluating the beneficiary's proposed position. The petitioner infers that the U.S. entity is still in 
its developmental stages. I-Iowever, 8 C.F.R. (j 214.2(1)(3)(v)(C) allows the intended 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 is not 
sufficiently operational after one year, the petitioner is ineligible by regulation for an extension. In the instant 
matter, the petitioner has failed to present sufficient evidence to establish that the beneficiary has been 
employed in a managerial or executive capacity, or that it has reached the point where it can employ the 
beneficiary in a primarily managerial or executive position. 
The petitioner has not provided a comprchensive description of the beneficiary's purported job duties. The 
beneficiaryes position description is too general and broad to establish that the preponderance of his duties 
have been and will be managerial 01- executive in nature. The following duties arc without any context in 
which to reach a determrnation as to whether they would be qualifying as executive: supervising various 
departments within the company, research, legal and accounting matters, and attending fairs and developing 
plans. Further, there is insufficient detail regarding the actual duties of the assignment to overcome the 
objections of the director. Specifics are clearly an ~mportant 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., Llcl V. Sma, 724 F. Supp. 1 103 (E.D.N.Y. 1989), afd, 905 F.2d 
4 1 (2d. Cir. 1990). l'he actual duties themselves reveal the true nature of the employment. Id. at 1108. 
The petitioner has not demonstrated that the beneficiary has been or will be primarily supervising a 
subordinate staff of professional. managerial, or supervisory personnel who can relieve him from performing 
non-qualifying duties. There is no evidence submitted to establish that the petitioner employs anyone other 
than the beneficiary. Although the petitioner asserts that the company as an E-business is not in need of many 
employees and that the company employs independent contractors, there has been no independent 
documentary evidence submitted to substantiate this claim. There is no evidence to show how the beneficiary 
supewises the daily activities of independent contractors. Moreover, there has been no evidence presented to 
establish where the independent contractors are located, or that they perform managerial, supervisory, or 
professional duties sufficient to relieve the beneficiary from performing nonqualifying duties. 
The petitioner has provided no co~nprehensive description of the beneficiary's duties that would demonstrate that 
he has been or will be establishing goals and policies, that he will be exercising a wide latitude in discretionary 
decision-making, or that lie would receive only general supervision or direction from higher level individuals. 
Matter of Treasure Crcrfi ofCuliforniu, 14 IStN Dec. 190 (Reg. Comm. 1972). 
The record does not demonstrate that the beneficiary primarily manages an essential function of the 
organization. Although the petitioner stated that the beneficiary would primarily be responsible for 
supervising the various departments within the U.S. entity. the record reflects that the beneficiary has been 
performing and will continue to perform the duties necessary to establish the business. Based upon the 
evidence of record it appears that the beneficiary has been and will continue to be responsible for carrying out 
the sales, marketing, accounting, administrative, and negotiation functions of the business. An employee who 
primarily performs ?he tasks necessary to produce a product or- to provide services is riot considered to be 
employed in a managerial or execittive capacity. M~/firn of ch2/r~h S'c~'~len/o/ogy Iniernntionul, 19 I&N Dec. 
593, 604 (Cornm 1988). The petiticlner has not demonstrated that the beneficiary will be functioning at a 
SRC 02 080 50650 
Page 7 
senior level within an organizational hierarchy other than in position title. For this reason, the petition may 
not be approved. 
The second issue in this proceeding is whether the petitioner has submitted sufficient evidence to establish that 
the U.S. entity has been doing business as defined in the regulations. 
The regulations at 8 C.F.R. 5 2 14.2(1)(l)(ii)(G) state: 
Quulzfiiizg organization means 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 (I)(l)(ii) of this section; 
(2) Is or will be doing business (engaging in international trade is not required) as an 
employer in the Unrted States and in at least one other country directly or through a 
parent, branch. affiliatc, 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 sect~on 10 1 (a)(15)(L) of the Act. 
The regulations at 8 C F.K. 3 2 14.2(1)(l )(ii)(H) state: 
Doing bz~srizess means the regular, systematic, and continuous provision of goods andlor 
services by a qualifying organization and does not include the mere presence of an agent or 
office of the qualifying organization in the United States and abroad. 
The petitioner initially submitted financial and business records as proof that the U.S. entity had been doing 
business at the time the petition was filed. The petitioner submitted copies of U.S. bank statements, and 
company invoices dated February 12,200 1. and April 2,3001. 
The director requested that the petitioner submit additional evidence to substantiate its doing business claim. 
The director specifically requested "evidence of the business conducted by the United States entity during the 
past year, such as copies of corporate income tax returns. accountant statements, invoices, bills of sale, bills of 
lading, shipping receipts etc." 
In response to the director's request for additional evidence, the petitioner submitted copies of a company 
bank statement; and company invoices dated January 3 1, 200 1, February 28. 2001, May 3 1, 2001, June 30, 
2001, July 15,2001. July 31,2001, August 31,2001, and December 31.2001. 
The director detcrrnined that the petitioner had not submitted sufficient evidence to establish that the U.S. 
entity was doing business. i.e., continuously and systematically engaged in the provision of goods andlor 
services. 
On appeal. the petitioner submitted copies of its sales sumnialy chart covering the period from January of 
2002 through Nobember of 2002; an lnvoices rcpclrt listing invoices dated from January of 2001 to October 
15, 2002: company invoices coveririg the period from May of 2002 through October of 2002: letters of 
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Page 8 
accommodation and recommendation from vendors; a record of expenses by vendor summary; Employer's 
Quarterly Tax Returns for 200 1 and 2002; IRS Form 1 120, U.S. Corporate Income Tax Return for 2001; State 
Corporate Income Tax Return for 2001; First Union National Bank statements, and documentation from 
Wells Fargo Bank Northwest, N.A. of transfer of funds. 
In review, the evidence submitted on appeal is sufficient to establish that the [J.S. entity has been engaged in 
the regular, systematic, and continuous provision of goods and/or services as a qualifying organization. The 
company income tax returns for 2001 demonstrate gross receipt or sales in the amount of $94,684.00. In 
addition, the con~pany's sales summary chart, lists of expenses by vendor, copies of invoices, and banks 
statements all demonstrate that the petitioner has been engaged in business activities during 2001 and 2002. 
Based upon the evidence submitted, it appears that the U.S. entity's business activities meet the regulatory 
requirements that call for the regular, systematic, and continuous provision of goods and/or services. 
Therefore, the director's decision with respect to this issue will be withdrawn. 
In visa petition proceedings, the burden of proving eligibility for the benefit sought remains entirely with the 
petitioner. Section 391 of the Act, 8 U.S.C. 5 1361. The petitioner has not sustained that burden with respect 
to establishing that the beneficiary has been cmployed by the U.S. entity in a primarily managerial or 
executive capacity. 
ORDER. 'The appeal is dismissed.