dismissed L-1A Case: Jewelry

U.S. Department of Homeland Secudty 
20 Mass Ave., Room. A3042 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
Services 
PUBllC COPY 
FILE: EAC 02 166 53 129 Office: VERMONT SERVICE CENTER Date: JUN 2 8 2005 
PETITION: Petition for a N-onimmigrant Worker Pursuant to Section 10 1 (a)(l5)(L) of the Immigration 
and Nationality Act, 8 U.S.C. $ 1 10 1 (a)(l 5 )(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. 
obert P. Wiemann, Director 
Administrative Appeals Office 
EAC 02 166 53129 
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 is a new office engaging in the jewelry retail, wholesale, and export business. It seeks to 
employ the beneficiary as its chief executive, and filed a petition to classify the beneficiary as a nonimmigrant 
intracompany transferee. The director denied the petition, concluding the U.S. entity would not support a 
primarily managerial or executive position within one year of approval of the petition and, therefore, the 
beneficiary would not be employed in the U.S. entity in a qualifying capacity. 
Counsel subsequently filed an appeal. The director declined to treat the appeal as a motion, and forwarded it 
to the AAO for review. On appeal, counsel claims that the director erred by faiIing to closely examine the 
evidence of record and by applying a stricter and incorrect standard of law for a "new office" as defined in 8 
C.F.R. 5 214.2(1)(3). Counsel submits a detailed brief in support ofthe appeal. 
To establish L-1 eligibility, the petitioner must meet the criteria outlined in section 101(a)(15)(L) of the 
Immigration and Nationality Act (the Act), 8 U.S.C. 4 I lOl(a)(lS)(L). Specifically, within three years 
preceding the beneficiary's application for admission into the United States, 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. 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 in part 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 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 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. 
Moreover, pursuant to the regulation at 8 C.F.R. 5 214.2(1)(3)(~), if the petition indicates that the beneficiary 
is coming to the United States as a manager or executive to open or be employed in a new office in the United 
States, the petitioner shall submit evidence that: 
(A) Sufficient physical premises to house the new office have been secured; 
EAC 02 166 53129 
Page 3 
(B) The beneficiary has been employed for one continuous year in the three year period 
preceding the filing of the petition in an executive or managerial capacity and that the 
proposed employment involved executive or managerial authority over the new operation; 
(C) The intended United States operation, within one year of the approval of the petition, will 
support an executive or managerial position as defined in paragraphs (l)(I)(ii)(B) or (C) of 
this section, supported by information regarding: 
(I) The proposed nature of the office describing the scope of the entity, its 
organizationaj structure, and its financial goals; 
(2) The size of the United States investment and the financial ability of the foreign 
entity to remunerate the beneficiary and to commence doing business in the 
United States; and 
(3) The organizational structure of the foreign entity. 
The issue in this proceeding is whether within one year of approval of the petition the beneficiary would be 
employed in the U.S. entity in a primarily managerial or executive capacity. 
Section 101 (a)(44)(A) of the Act, 8 U.S.C. 5 1 101 (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 deparhnent, subdivision, function, or component of 
the organization; 
(ii) Supervises and controls the work of other supervisory, professional, or managerial 
employees, or manages an essential hnction within the organization, or a department or 
subdivision of the organization; 
(iii) Has the authority to hire and fire or recommend those as weH as other personnel actions 
(such as promotion and leave authorization) if another employee or other employees are 
directly supervised; 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-today 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 lOl(a)(44)(B), provides: 
The term "executive capacity" means an assignment within an organization in which the employee 
primarily- 
EAC 02 166 53129 
Page 4 
(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 an addendum to Fonn 1-129, petition for a nonimmigrant worker, the petitioner provided the following 
description of the beneficiary's proposed duties in the United States: 
The beneficiary has been elected a director of the U.S. subsidiary. Upon his arrival, he will 
assume the role of Chief Executive of the U.S. subsidiary. In this role, he will guide, direct, 
and manage the U.S. subsidiary. His responsibilities will include starting the location in New 
Jersey, organizing it, developing it, and growing it. 
In addition, counsel for the petitioner stated in a letter accompanying the petition that the beneficiary would 
"make the major business decisions, including establishing overall objectives, and business development 
strategies." The initial petition contained no information regarding the staff of the U.S. entity, actual or 
projected, other than the beneficiary. 
On October 5, 2002, the director requested that the petitioner submit additional evidence to establish that the 
beneficiary will be employed in a primarily managerial or executive capacity by the U.S. entity. Specifically, 
the director requested: (1) an organizational chart for the U.S. entity; (2) a comprehensive description of the 
beneficiary's proposed duties, indicating how the beneficiary's duties will be managerial or executive in 
nature; (3) a complete position description for and educational credentials of all of the beneficiary's 
subordinates in the U.S. entity; and (4) a breakdown of the number of hours devoted to each employee's job 
duties on a weekly basis. 
In a response dated October 14, 2002, counsel for the petitioner indicated that at that time, there were no 
employees or staff in the U.S. office. Counsel further stated that as Chief Executive Officer, the beneficiary 
"will first manage a function - that of development of the retail business for the first year of business." 
Counsel submitted an organizational chart with ten positions below the beneficiary, and indicated that the 
beneficiary would begin hiring as the business moves beyond the formative stages, and would try to achieve 
the staffing objectives within the first year. Counsel also described the beneficiary's anticipated duties as 
follows: 
His proposed supervisory duties include supervising an Accountant, Business 
DeveloperiMarketing Manager, Design Expert and Showroom Manager. The work 
performed by [the beneficiary] will consist of supervising the Design Expert to ensure the 
jewelry's purity and superior quality. He will also supervise the Business 
Developer/Marketing Manager to study the U.S. market, to identify areas where [the 
petitioner's] retail business can grow. [The beneficiary] will also engage in supervising and 
EAC 02 166 53 129 
Page 5 
overseeing the development of prospective markets in the U.S. He will supervise both the 
Idlesign team and [blusiness development team to study the U.S. customer requirements and 
sensibilities. 
[The beneficiary] will also oversee the general management of [the petitioner]. For this 
reason, beneficiary will supervise an Accountant and Showroom manager in the U.S. entity. 
These personnel will be responsible for the general day-to-day operations of the retail 
business. 
The petitioner submitted job descriptions, indicating the percentage of time to be spent weekly on each duty, 
for the positions of accountant, business developer/marketing manager, showroom manager and design 
expert. There was no hourly breakdown per job duty provided for the beneficiary. 
On October 28, 2002, the director denied the petition. The director determined that the record does not 
demonstrate that the beneficiary would be employed in a primarily managerial or executive position within 
one year of approval of the petition, or that the U.S. entity could support such a position within a year's time. 
Specifically, the director found that the description of the beneficiary's position was vague, does not expound 
on the beneficiary's day-to-day activities, and merely paraphrases the regulatory definition of a manager or 
executive. The director further found that the beneficiary would be engaged in the non-managerial, day-to- 
day operations involved in fabricating a product or providing a service rather than performing primarily 
executive or managerial job duties. The director also concluded that the petitioner did not establish that the 
beneficiary would manage supervisory, professional, or managerial employees who would relieve him from 
performing the services of the U.S. entity. The director therefore concluded that the beneficiary does not 
qualify for L-l classification. 
On appeal, counsel contends that in denying the petition, the director made a subjective judgment as to 
whether the petitioner will succeed or fail in its first year of business, which is beyond the scope of the 
director's authority and jurisdiction under the regulations. Counsel further contends that the director's denial 
is prejudicial toward small businesses and start-up companies setting up "new offices" in the United States. 
Counsel reiterates much of the information previously provided regarding the beneficiary's anticipated 
position in the U.S. entity, this time including a percentage breakdown of the beneficiary's job duties. 
Counsel then asserts that the petitioner has "clearly established" that the beneficiary will be involved in an 
executive or managerial capacity in the U.S. entity. 
Counsel's assertions on appeal are not persuasive. The director did not make a determination "as to whether 
the petitioner will succeed or fail in its first year of business," as counsel contends. The director determined 
that the record does not establish that the intended United States operation, within one year of the approval of 
the petition, would support an executive or managerial position occupied by the beneficiary, in accordance 
with the regulations at 8 C.F.R. 214.2(1)(3)(v)(C). Upon review of the record, the AAO concurs with the 
director's conclusion. 
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. In order to qualify for L-1 
nonimmigrant classification during the first year of operations, the regulations require the petitioner to 
disclose the business plans, organizational structure, and size of the United States investment, and thereby 
EAC 02 166 53129 
Page 6 
establish that the proposed enterprise will support an executive or managerial position within one year of the 
approval of the petition. See 8 C.F.R. $ 214.2(1)(3)(v)(C). This evidence should demonstrate a realistic 
expectation that the enterprise wiIl succeed and rapidly expand as it moves away from the developmental 
stage to full operations, where there would be an actual need for a manager or executive who will primarily 
perform qualifying duties. 
The AAO recognizes that while the petitioner submitted descriptions of certain managerial job duties to be 
performed by the beneficiary in the U.S. entity following the developmental stage, the petitioner has not 
sufficiently established that, within one year of approval of the petition, the beneficiary's responsibilities 
would be in a primarily managerial or executive capacity. Whether the beneficiary will be 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 IOI(a)(44)(A) and (B) of the Act. Here, although 
requested by the director, the petitioner fails to provide a breakdown of the amount of time the beneficiary 
would spend each week on each job duty. Absent that information, it cannot be determined based on the 
record what proportion of the beneficiary's duties would be managerial functions and what proportion would 
be non-managerial. The petitioner's failure to submit requested evidence that precludes a material line of 
inquiry shall be grounds for denying the petition. 8 C.F.R. $ 1 03.2(b)(14). 
The AAO notes that counsel includes in his appeal brief a percentage breakdown of the beneficiary's intended 
duties. However, the petitioner was put on notice of required evidence and given a reasonable opportunity to 
provide it for the record before the visa petition was adjudicated. The AAO will not consider such 
information submitted for the first time on appeal. Matter of Soriano, 19 I&N Dec. 764 (BIA 1988). 
Moreover, the assertions of counsel do not constitute evidence. Matter of Obaigbena, 19 I&N Dec. 533, 534 
(BIA 1988); Matter of Ramirez-Sanchez, 17 I&N Dec. 503, 506 (BIA 1980). The appeal will be adjudicated 
based on the record of proceeding before the director. 
Additionally, the record does not demonstrate that the beneficiary would be relieved from performing 
non-qualifying functions within the requisite one year of approval of the petition. As counsel indicated in his 
letter in response to the director's request for further evidence, "there are currently no employees or staff in 
the U.S. office." Although the organizational chart identifies ten proposed employees who would be 
subordinate to the beneficiary, the record does not indicate that there is any set timeline for hiring these 
employees. Moreover, the petitioner indicated in its "profitability projections" that the projected employee 
salaries for the first year would be $69,600. Considering the beneficiary's annual salary is set at $40,000, the 
remaining $29,600 cannot be sufficient to cover the first year salaries of the projected subordinate staff. It is 
therefore unclear whether any of the projected staff indeed would be in place to relieve the beneficiary from 
performing non-qualifying job duties to function in a primarily managerial capacity. 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 Inlernational, 19 I&N Dec. 
593,604 (Comm. 1988). Also, the assertions of counsel do not constitute evidence. Matter of Obaigbena, 19 
I&N Dec. at 534; Matter of Ramirez-Sanchez, 17 I&N Dec. at 506. 
Moreover, the petitioner has not provided adequate documentation establishing that the U.S. entity will 
support the beneficiary in a managerial or executive position within one year of approval of the petition. 
Other than five short paragraphs discussing the "business expansion plan" of the U.S. entity in a letter counsel 
submitted with the petition, the record does not contain a detailed business plan in which the company's 
policies, strategies, and financial goals are clearly defined. The record also contains insufficient information 
EAC 02 166 53129 
Page 7 
regarding the foreign entity's financial ability to remunerate the beneficiary and to commence doing business 
in the United States, as required by the regulation at 8 C.F.R. FJ 214,2(1)(3)(v)(C)(2). The AAO is unable to 
determine the financial status of the foreign organization as all financial data submitted by the petitioner is 
identified in rupees rather than U.S. dollars. Cf: 8 C.F.R. $ 103.2(b)(3). Moreover, the petitioner only 
substantiated a transfer of funds in the amount of US$40,000 fi-om the foreign entity to the U.S. entity. This 
amount does not appear sufficient to remunerate the beneficiary and to allow the U.S. entity to commence 
doing business, given the projected operating cost for the first year of US$206,600, as stated in the 
profitability projections provided by the petitioner. Counsel indicated in his letter accompanying the petition 
that the foreign entity "plan[s] to transfer over [an] additional US$100,000 to meet the operating needs of 
[the] U.S. entity." However, even assuming that the additional funds would be sufficient to remunerate the 
beneficiary and to allow the U.S. entity to commence business, a statement by counsel of the foreign entity's 
intention to take such action in the future is not sufficient to meet regulatory requirements. The assertions of 
counsel do not constitute evidence. Matter of Obaigbena, 19 I&N Dec. at 534; Matter of Ramirez-Sanchez, 
17 I&N Dec. at 506. The petitioner must establish eligibility at the time of filing the nonimmigrant 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). Also, 
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). 
Based on the evidence presented, the record does not demonstrate that within one year of approval of the 
petition the beneficiary would be employed in the U.S. entity in a primarily managerial or executive capacity. 
Ln 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 
director's decision will be affirmed and the petition will be denied. 
ORDER: The appeal is dismissed.