dismissed L-1A Case: Investment

U.S. Department of Homeland Security 
20 Massachusetls Ave.. N.W., Rm. A3042 
Washington. DC 20529 
U. S. Citizenship 
and Immigration 
FILE: WAC 01 290 53845 Office: CALIFORNIA SERVICE CENTER Date: JUN 2 8 2005 
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 101 (a)(] 5)(L) of the Immigration 
and Nationality Act, 8 U.S.C. 9 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. 
~dbert P. Wiemann, ~irector 
Administrative Appeals Office 
WAC 0 1 290 53845 
Page 2 
DISCUSS.ION: The nonimmigrant visa petition was denied by the Director, California Service Center. The 
matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. 
According to the documentary evidence contained in the record, the petitioner was established in July of 1997 
nvestment business. The petitioner claims to be an 
located in India. The petitioner seeks to extend its 
United States as its president and chief executive 
officer for three years, at an annual salary of $48,000.00. The director determined that the petitioner had 
failed to submit sufficient evidence to establish that the beneficiary had been and would be employed by the 
U.S. entity in a primarily managerial or executive capacity. 
On appeal, counsel disagrees with the director's decision, and asserts that the beneficiary has been and will 
continue to be employed in an executive capacity. 
To establish L-1 eligibility under section 10 1 (a)(15)(L) of the Immigration and NationaIity Act (the Act), 
8 U.S.C. 11 01 (a)(15)(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 qualifying 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 aftiliate thereof in a capacity that is managerial, 
executive, or involves special~zed knowledge. 
The regulation at 8 C.F.R. $21 4,2(1)(l)(ii) states, in part: 
In&rucompuny trunsferee 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, affiliate, 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, affiliate, or subsidiary thereof in 
a capacity that is managerial, executive or involves specialized knowledge. 
Section 101(a)(44)(A) of the Act, 8 U.S.C. tj I lOl(a)(M)(A), provides: 
'The term "managerial capacity" means an assignment within an organization in which the 
employee primarily- 
(1) 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 empIoyee or ot er employees are directly supervised, has the 
authority to hire and fire o 't. recommend those as well as other personnel 
actions (such as promotion and leave authorization), or if no other 
WAC 01 290 53845 
Page 3 
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. 4 1 10 1 (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; 
(i i) 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 described the beneficiary's job duties as: 
[The beneficiary] has been leading, managing, and providing direction to the U.S. affiliate. 
His duties have included establishing corporate policies and long-term objectives. He has 
engaged in all executive decision making with regard to operations, marketing, sales, finance, 
and acquisitions. He has been the lead in negotiating all deals for the company and 
maintaining high-level contacts. 
In response to the director's request for additional evidence, the petitioner described the beneficiary's duties 
as: 
The beneficiary is the president and chief executive officer of the U.S. entity. As the senior 
most executive of the U.S. entity, he is ultimately responsible for the entity's activities, 
including business development, finances, marketing, personnel, and exploring new business 
opportunities. 
The beneficiary spends about two hours each day (25%) conferring with the vice-president 
and providing guidance on issues that need resolution or resolving any problems that the 
entity may be facing. Since customer development and retention is a critical function, the 
beneficiary spends 2-3 hours (25%-35%) each day visiting existing customers and to develop 
WAC 01 290 53845 
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potential customers. [sic] The most important function, and one which the beneficiary has not 
delegated, is exploring new business opportunities so that the U.S. entity's growth can be 
accelerated and a large number of U.S. persons can be employed . . . . The efforts of 
exploring new opportunities has consumed about 35%-40% of the time, and going forward, it 
is imminent that the new venture will consume 55% - 60% of the beneficiary's time. The rest 
of the time, currently, is dedicated towards personnel issues, discussions with accountants and 
attorneys, and other matters. 
The beneficiary directly supervises only the vice-president of the entity. The . . . vice- 
president . . . is entrusted with the day-to-day operations of the entity such as supervising 
other workers; dealing with "job work contractors" who manufacture and/or provide the 
finishing touches to the entity's products; and ensuring that the entity's operations are carried 
out smoothly and without interruption. 
The petitioner submitted a copy of its organizational chart that depicted the beneficiary as president and CEO 
with the vice-president, advisors, job work contractors, a senior supervisor, and a machine operator serving 
under his direction. The petitioner submitted copies of its IRS Form 1120, Corporate Income Tax Return for 
1999 and 2000 and IRS Form DE-6, Quarterly Wage and Withhold~ng Report for 2001. 
The director determined that the evidence submitted by the petitioner was insufficient to show that the 
beneficiary's duties have been or wouId be primarily managerial or executive in nature. The director stated 
that the petitioner had not established that the beneficiary would be involved in the supervision and control of 
the work of supervisory, professional or managerial employees who would relieve him from performing the 
services of the business. The director also noted that there was insufficient evidence to show that the 
beneficiary directs the management of the organization or establishes the goals and policies of the 
organization. The director noted that although the petitioner claimed that a significant portion of the 
company's activity was contracted out to other companies, the tax records demonstrated a minimum use of 
subcontractor's services in 2000. 
On appeal, counsel argues that the beneficiary has been and will continue to be employed primarily in an 
executive capacity. 
The petitioner has not established that the beneficiary has been or will be employed primarily in an executive 
capacity. The petitloner has provided no comprehensive description of the beneficiary's duties that would 
demonstrate that he has been and will be responsible for directing the management of the organization or a 
major component or function of the organization, establishing goals and policies, exercising a wide latitude in 
discretionary decision-making, and receiving only general supervision or direction from higher-level 
individuals. The petitioner asserted that the beneficiary engaged in executive decision-making with regard to 
operations, marketing, sales, finance, and acquisitions. However, the petitioner has failed to submit 
independent documentary evidence to substantiate its claim. Going on record without supporting 
documentary evidence is not sufficient for purposes of meeting the burden of proof in these proceedings. 
Mutter of Treusurr Cruft of California, 14 I&N Dec. 190 (Reg. Comm. 1972). The petitioner also contends 
that the beneficiary spends 25 percent of his day conferring with the vice-president; 25 percent of his day 
visiting existing customers and developing potential customers; and 35 percent to 40 percent of his day 
exploring new business opportunities. The petitioner further asserts that the beneficiary will spend 55 percent 
WAC 01 290 53845 
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to 60 percent of his time developing the new business venture. It appears that the beneficiary has been and 
will be primarily involved in the day-to-day operations of the business and the acquisition and development of 
new businesses rather than primarily performing executive duties for the petitioning entity. There has been no 
evidence presented to demonstrate that the beneficiary directs the management of the organization or that he 
establishes goals and policies. 
The petitioner contends that the beneficiary supervises the vice-president and that the vice-president 
supervises all other subordinates. Although the petitioner asserts that the beneficiary is managing a 
subordinate staff, the record does not establish that the subordinate staff is composed of supervisory, 
professional, or managerial employees. See section 101(a)(44)(A)(ii) of the Act. A first-line supervisor will 
not be considered to be acting in a managerial capacity merely by virtue of his or her supervisory duties 
unless the employees supervised are professional. Section 101(a)(44)(A)(iv) of the Act. Because the 
beneficiary is primarily supervising a staff of non-professional employees, the beneficiary cannot be deemed 
to be primarily acting in a managerial capacity. 
The petitioner claims to employ subcontractors, but has not presented evidence of the subcontractors nor 
identified in detail the services these individuals provide. Additionally, the petitioner has not explained how 
thewservices of the contracted employees obviate the need for the beneficiary to primarily conduct the 
petitioner's business. Without documentary evidence to support its statements, the petitioner does not meet 
its burden of proof in these proceedings. Matter of Treasure Crafr of Calijorniu, 14 I&N Dec. 190 (Reg. 
Comm. 1972). 
The record does not demonstrate that the U.S. entity contains the organizational complexity to support an 
executive staff position. While company size cannot be the sole basis for denying a petition, that element can 
nevertheless be considered, particularly in light of other pertinent factors such as the nature of the petitioner's 
business. Together, these facts can be used as indicators to help determine whether a beneficiary can remain 
primarily focused on managerial or executive duties or whether that person is needed, in large part, to assist in 
the company's day-to-day operations. In the instant matter, the latter more accurately describes the 
beneficiary's role. There has been no evidence submitted to show that the petitioner employs full-time 
workers who cany out the day-to-day functions of the organization and who are in a position to relieve the 
beneficiary from performing non-executive duties. 
The petitioner has failed to resolve inconsistencies that appear in the record. The petitioner submitted as 
evidence its Form 1120 for 1999 and 2000 that show no wages paid in 1999 and minimal wages paid in 2000. 
The U.S. entity's Form DE-6 quarterly tax reports for 2001 demonstrate that the petitioner employed a 
maximum of three employees. There is no evidence to show that the beneficiary as president, or the vice- 
president received any wages from the organization during this period. Furthermore, there is no evidence to 
show that the advisors were salaried. The evidence of record demonstrates that the contractors were paid only 
$848.00 for subcontracting services in 2000. It is incumbent upon the petitioner to resolve any 
inconsistencies in the record by independent objective evidence. Any attempt to explain or reconcile such 
inconsistencies will not suffice unless the petitioner submits competent objective evidence pointing to where 
the truth lies. Mutter c!fHo, 19 I&N Dec. 582, 592 -92 (BIA 1988). 
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. The petitioner has not sustained that burden. 
ORDER: The appeal is dismissed.