dismissed L-1A Case: Laser Technology

U.S. Department of Homeland Security 
20 Massachusetts Ave., N.W., Rm. 3000 
Washington, DC 20529 
File: WAC 08 049 50621 Office: CALIFORNIA SERVICE CENTER Date: AU6 2 9 2008 
Petition: 
 Petition for a Nonimmigrant Worker Pursuant to Section 1 0 1 (a)( 1 5)(L) of the Immigration 
and Nationality Act, 8 U.S.C. 5 1 10 1 (a)(15)(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. 
Robert P. Wiemann, Chief 
Administrative Appeals Office 
WAC 08 049 50621 
Page 2 
DISCUSSION: The Director, California Service Center, denied the petition for a nonirnmigrant visa. The 
matter is now before the Administrative Appeals Office (AAO) on appeal. The AAO will dismiss the appeal. 
The petitioner filed this nonimmigrant visa petition seeking to extend the employment of the beneficiary as an 
L- 1 A nonirnmigrant intracompany transferee pursuant to section 10 1 (a)(15)(L) of the Immigration and 
Nationality Act (the Act), 8 U.S.C. !j 1101(a)(15)(L). The petitioner is a branch office qualified to do 
business in the State of California and is allegedly in the laser diode business. The beneficiary was granted a 
one-year period of stay to open a new office in the United States, and the petitioner now seeks to extend the 
beneficiary's stay. 
The director denied the petition concluding that the petitioner did not establish (1) that the beneficiary was 
employed abroad in a primarily managerial or executive capacity; or (2) that the beneficiary will be employed 
in the United States in a primarily managerial or executive capacity.' 
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 to the petitioner asserts that the director 
erred and that the beneficiary was employed abroad, and will be employed in the United States, in a primarily 
executive capacity. 
To establish eligibility for the L-1 nonimmigrant 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. 8 214.2(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)( 1 )(ii)(G) of this section. 
1 
It is noted that, on appeal, counsel indicates that the director denied the petition on the "sole ground" that the 
petitioner failed to establish that the beneficiary was employed abroad in a primarily managerial or executive 
capacity. Upon review, the AAO disagrees with counsel's claim. Taken as a whole, it is clear that the 
director denied the petition because the petitioner failed to establish that the beneficiary was employed 
abroad, and will be employed in the United States, in a primarily managerial or executive capacity. 
Regardless, as the AAO's review of the record and of the director's decision is de novo, counsel's assertion is 
largely irrelevant. The AAO may, in its discretion, consider the sufficiency of the record with regards to all 
criteria applicable to this visa classification, including those criteria not addressed by the director in her 
decision. Dor v. INS, 891 F.2d 997, 1002 n. 9 (2d Cir. 1989) (noting that the AAO reviews appeals on a de 
novo basis). 
WAC 08 049 50621 
Page 3 
(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 withn 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 himlher 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. 
The regulation at 8 C.F.R. 5 21 4.2(1)(14)(ii) also provides that a visa petition, whlch involved the opening of a 
new office, may be extended by filing a new Form I- 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 United States entity has been doing business as defined in 
paragraph (l)(l)(ii)(H) of this section for the previous year; 
(C) 
 A statement 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 the present matter is whether the beneficiary was employed abroad in a primarily managerial 
or executive capacity. 
Section 101 (a)(44)(A) of the Act, 8 U.S.C. 5 1 10 1 (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; 
WAC 08 049 50621 
Page 4 
(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 hction 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-malung; and 
(iv) 
 receives only general supervision or direction from higher level executives, the board 
of directors, or stockholders of the organization. 
Although counsel on appeal claims that the beneficiary has been and will be employed in an "executive" 
capacity, the petitioner does not clarify in the initial petition whether the beneficiary will primarily perform 
managerial duties under section 101(a)(44)(A) of the Act, or primarily executive duties under section 
101 (a)(44)(B) of the Act. Given the lack of clarity, the AAO will assume that the petitioner is asserting that 
the beneficiary will be employed in either a managerial or an executive capacity and will consider both 
classifications. 
The petitioner describes the beneficiary's duties abroad as "president and chief technical officer (CTO)" in a 
letter dated November 19,2007 as follows: 
[The beneficiary] oversaw the development of [the foreign employer's] Laser Diode products 
and related business operations. As company president, [the beneficiary's] duties involved 
the directing and controlling [of the] parent company's overall operations, including the 
establishment of company policies and goals, supervision of subordinate employees and 
directing the sales and development of the company. As the CTO, [the beneficiary's] duties 
included being responsible for all facets of [the] parent company's technology operations, 
including the management and successful execution of technical projects and directing the 
overall techcal direction of the company, including determining key initiatives, strategies, 
and operating plans. 
WAC 08 049 50621 
Page 5 
On December 14, 2007, the director requested additional evidence. The director requested, inter alia, the 
number of employees at the foreign location where the beneficiary was employed; an organizational chart for 
the foreign employer describing its managerial hierarchy, including job descriptions and educational levels for 
all subordinates under the beneficiary's supervision; and a more detailed description of the beneficiary's duties 
abroad, including the percentages of time the beneficiary devotes to each of hs ascribed duties. 
In response, counsel submits a letter dated January 2, 2008 in which the beneficiary's foreign duties are 
further described as follows: 
a 
 As company President and CTO, [the beneficiary] has been overseeing the 
development of the foreign parent company's Laser Diodes and related business 
operations; (20%) 
He has been directing and controlling the overall operations of the company, 
including the establishment of policies and goals, supervision of subordinate 
employees and directing the sales and development of the company; (35%) 
a 
 As the CTO, [the beneficiary] has also been responsible for all facets of the parent 
company's technology operations, including the management and successful 
execution of technical projects; and (25%) 
a 
 He was directing the overall technical direction of the company, including 
determining key initiatives, strategies, and operating plans. (20%) [.I 
Counsel also claims that the beneficiary supervised "a team of 83 employees, three (3) of whom have 
supervisory positions' ' in his purported management of the development department (23 workers), sales and 
marketing department (6 workers), and production department (54 workers). The three subordinate 
supervisors are all described as having earned master's degrees in either engineering or physics. 
Upon review, the AAO concludes that the petitioner established that the beneficiary was more likely than not 
employed abroad for at least one year in a managerial capacity, and the director's decision will be withdrawn 
in part. The petitioner has established that the beneficiary was employed abroad for at least one year as 
president and chief technical officer. In that capacity, the beneficiary managed a subordinate tier of three 
departmental supervisors who, in turn, supervised a total of 80 workers. Consequently, the petitioner has 
established that the beneficiary managed a subdivision of the foreign employer, supervised and controlled the 
work of other supervisory andor professional workers, had authority over his subordinates, and exercised 
sufficient discretion over the operations of the activity for which the beneficiary had authority. Furthermore, it 
does not appear as if the beneficiary was a fust-line supervisor of non-professional workers. 
Accordingly, the petitioner has established that the beneficiary was employed abroad for at least one year in a 
managerial capacity, and the director's decision will be withdrawn in part. 
The second issue in the present matter is whether the petitioner has established that the beneficiaty will be 
employed in the United States in a primarily managerial or executive capacity. 
The petitioner indicates in the Form 1-129 that the beneficiary is the United States operation's sole employee. 
In its November 19, 2007 letter, the petitioner describes the beneficiary's duties as the sole "branch 
WAC 08 049 50621 
Page 6 
representative" in the United States as follows: 
Directing and managing our company's overall operation, including establishing 
policies and goals, and malung necessary changes according to business activity 
reports, sales records and market research data; 
Overseeing our company's financial strategy and budget activities, and reviewing 
sales and activity reports to assess the status and progress of company goals; 
Coordinating marketing, consulting, and providing proper support to the existing and 
prospective customers; 
Directing the sample tests and sales of our laser diodes and related products in the 
U.S.; 
Conducting research and collecting data regarding the U.S. laser diode industry and 
reporting to our parent company; 
Developing and maintaining new relationships with distributors, partners and 
customers in the U.S.; 
Analyzing business operations to evaluate our company's performance and 
determining areas of improvement; and 
Reporting progress and maintaining constant contact with our parent company in 
Korea. 
The petitioner also submitted copies of email correspondence between the beneficiary and customers. 
On December 14, 2007, the director requested additional evidence. The director requested, inter alia, the 
total number of employees located in the United States; an organizational chart for the United States 
operation; and a more specific description of the beneficiary's proposed duties, including the percentage of 
time to be devoted to each of his ascribed duties. 
In response, counsel hrther described the beneficiary's duties in the January 2,2008 letter as follows: 
1. 
 Concentrating on the development and initiation of effective marketing strategies 
which include direct communication with customers through emails, phone calls, and 
on-site visitations to their business facilities; (30%) 
2. 
 Researching to find out the Laser Diode Industry market, needs, and the modem 
trend in the U.S. in order to expand the business sales and activities of the Laser 
Display, the Laser Beam Printer, and the Barcode Scanner in the U.S. (1 5%) 
3. 
 Marketing and Promotion of the Foreign Parent Company's Product and Technology 
in the U.S. by utilizing the resources in the U.S., including but not limited to catalogs 
and conventions in order to become one of the best-known laser diode company in 
the U.S. (25%) 
4. 
 Promoting sales of the laser diode products directly from the U.S. office starting with 
small and medium sized companies who need direct and close technical support for 
the laser diode products. (1 5%) 
5. 
 Providing consultation to the existing clients and prospective clients in the U.S. 
(1 5%) 
WAC 08 049 50621 
Page 7 
Counsel again notes that the beneficiary is the petitioner's only employee, although it appears that his salary is 
paid by the foreign employer and not by the petitioner. Counsel also notes that the petitioner plans to hire 
three or four employees in 2008. 
On January 24, 2008, the director denied the petition. The director concluded that the petitioner failed to 
establish that the beneficiary will be employed primarily in a managerial or executive capacity. 
On appeal, counsel asserts that the beneficiary will primarily perform executive duties in the United States. 
Upon review, counsel's assertions are not persuasive. 
Title 8 C.F.R. 5 214.2(1)(3)(v)(C) allows the "new office" operation one year with the date of approval of 
the petition to support an executive or managerial position. There is no provision in Citizenship and 
Immigration Services (CIS) regulations that allows for an extension of this one-year period. If the beneficiary 
is not performing qualifying duties within one year of petition approval, the petitioner is ineligible by 
regulation for an extension. Future hiring or business expansion plans may not be considered. A visa petition 
may not be approved based on speculation of future eligibility or after the petitioner or beneficiary becomes 
eligible under a new set of facts. See Matter of Michelin Tire Corp., 17 I&N Dec. 248 (Reg. Cornm. 1978); 
Matter of Katigbak, 14 I&N Dec. 45, 49 (Comm. 1971). In the instant matter, the petitioner has not 
established that the United States operation has reached the point that it can employ the beneficiary in a 
predominantly managerial or executive position. 
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 petitioner's description of the job 
duties must clearly describe the duties to be performed by the beneficiary and indicate whether such duties are 
either in an executive or managerial capacity. Id. A petitioner cannot claim that some of the duties of the 
position entail executive responsibilities, while other duties are managerial. A petitioner may not claim that a 
beneficiary will be employed as a hybrid "executive/manager~' and rely on partial sections of the two statutory 
definitions. 
In this matter, the petitioner's description of the beneficiary's job duties fails to establish that the beneficiary 
will act in a "managerial" or "executive" capacity. In support of the petition, the petitioner has described the 
beneficiary as primarily performing non-qualifying administrative or operational tasks which do not rise to 
the level of being managerial or executive duties. For example, the petitioner describes the beneficiary as 
communicating with and visiting customers, performing market research, and marketing and promoting the 
petitioning organization's products. However, the petitioner has not established that any of these tasks is a 
qualifying managerial or executive duty. 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. Comrn. 1972). To the contrary, sales, marketing, and customer relations 
duties are the tasks necessary to the provision of a service or the production of a product. Furthermore, the 
record does not establish that the beneficiary, as the petitioner's sole employee, will be relieved of the need to 
perform these non-qualifying tasks by a subordinate staff. The fact that the petitioner has given the 
beneficiary a managerial or executive title and has prepared a vague job description which includes inflated 
job duties does not establish that the beneficiary will actually perform managerial or executive duties. 
WAC 08 049 50621 
Page 8 
Accordingly, it appears more likely than not that the beneficiary will primarily perform non-qualifying 
administrative or operational tasks in his ongoing administration of the business as the petitioner's sole 
employee. 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 International, 19 I&N Dec. 593, 604 (Comm. 1988). 
Although counsel on appeal claims that the beneficiary's duties are qualifying, he submits no evidence 
corroborating this assertion. The unsupported statements of counsel on appeal or in a motion are not evidence 
and thus are not entitled to any evidentiary weight. See INS v. Phinpathya, 464 U.S. 183, 188-89 n.6 (1 984); 
Matter of Ramirez-Sanchez, 1 7 I&N Dec. 503 (BIA 1 980)~' 
Similarly, the petitioner has failed to establish that the beneficiary will act in an "executive" capacity. The 
statutory definition of the term "executive capacity" focuses on a person's elevated position within a complex 
organizational hierarchy, including major components or functions of the organization, and that person's 
authority to direct the organization. Section 101(a)(44)(B) of the Act. Under the statute, a beneficiary must 
have the ability to "direct the management" and "establish the goals and policies" of that organization. 
Inherent to the definition, the organization must have a subordinate level of employees for the beneficiary to 
direct, and the beneficiary must primarily focus on the broad goals and policies of the organization rather than 
the day-to-day operations of the enterprise. An individual will not be deemed an executive under the statute 
simply because they have an executive title or because they "direct" the enterprise as the owner or sole 
managerial employee. The beneficiary must also exercise "wide latitude in discretionary decision making" 
and receive only "general supervision or direction from hgher level executives, the board of directors, or 
stockholders of the organization." Id. For the same reasons indicated above, the petitioner has failed to 
establish that the beneficiary will act primarily in an executive capacity. As explained above, it appears more 
likely than not that the beneficiary will primarily perform the tasks necessary to produce a product or to 
2 
While the petitioner has not argued that the beneficiary will manage an essential function of the organization, 
the record nevertheless would not support this position even if taken. The term "function manager" applies 
generally when a beneficiary does not supervise or control the work of a subordinate staff but instead is 
primarily responsible for managing an "essential function" within the organization. See section 
101(a)(44)(A)(ii) of the Act. The term "essential function" is not defined by statute or regulation. If a 
petitioner claims that the beneficiary is managing an essential function, the petitioner must furnish a written 
job offer that clearly describes the duties to be performed in managing the essential function, i.e., identify the 
function with specificity, articulate the essential nature of the function, and establish the proportion of the 
beneficiary's daily duties attributed to managing the essential function. See 8 C.F.R. $ 214.2(1)(3)(ii). In 
addition, the petitioner's description of the beneficiary's daily duties must demonstrate that the beneficiary 
manages the function rather than performs the tasks related to the function. In this matter, the petitioner has 
not provided evidence that the beneficiary will manage an essential function. The petitioner's job description 
fails to document that the beneficiary's duties will be primarily managerial. Also, as explained above, the 
record indicates that the beneficiary will primarily perform non-qualifying tasks. Absent a clear and credible 
breakdown of the time spent by the beneficiary performing hs duties, the AAO cannot determine what 
proportion of his duties will be managerial, nor can it deduce whether the beneficiary will primarily perfom 
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). 
WAC 08 049 50621 
Page 9 
provide a service. 
 Therefore, the petitioner has not established that the beneficiary will be employed 
primarily in an executive capacity. 
In reviewing the relevance of the number of employees a petitioner has, federal courts have generally agreed 
that CIS "may properly consider an organization's small size as one factor in assessing whether its operations 
are substantial enough to support a manager." Family, Inc. v. US. Citizenship and Immigration Services, 469 
F.3d 1313, 1316 (9th Cir. 2006) (citing with approval Republic of Transkei v. INS, 923 F.2d 175, 178 (D.C. 
Cir. 1991)); Fedin Bros. Co. v. Sava, 905 F.2d 41, 42 (2d Cir. 1990) (per curiam); Q Data Consulting, Inc. v. 
INS, 293 F. Supp. 2d 25, 29 (D.D.C. 2003)). Furthermore, it is appropriate for CIS to consider the size of the 
petitioning company in conjunction with other relevant factors, such as a company's small personnel size, the 
absence of employees who would perform the non-managerial or non-executive operat ions of the company, 
or a "shell company" that does not conduct business in a regular and continuous manner. See, e.g. Systronics 
Corp. v. INS, 153 F. Supp. 2d 7, 15 (D.D.C. 2001). 
Accordingly, the petitioner has failed to establish that the beneficiary will primarily perform managerial or 
executive duties, and the petition may not be approved for that reason. 
Beyond the decision of the director, the petitioner has failed to establish that the United States operation has 
been "doing business" for the previous year. 
As noted above, the regulation at 8 C.F.R. 8 214,2(1)(14)(ii)(B) provides that a visa petition, whch involved 
the opening of a new office, may be extended by filing a new Form 1-129, accompanied by evidence that the 
United States operation has been "doing business as defined in paragraph (l)(l)(ii)(H) of this section for the 
previous year." "Doing business" is defined in relevant part as "the regular, systematic, and continuous 
provision of goods and/or services by a qualifying organization and does not include the mere presence of any 
agent or office of the qualifying organization in the United States and abroad." 8 C.F.R. 9 214.2(1)(l)(ii)(H). 
In this matter, the petitioner has failed to establish that it has been doing business for the previous year. TO 
the contrary, it is more likely than not that the petitioner is a mere presence of an agent or office in the United 
States. The petitioner indicates that it has no employees other than the beneficiary, who does not appear to be 
paid a salary from a United States source. Furthermore, counsel indicates in the January 2, 2008 letter that it 
has not generated any income. It appears that the beneficiary has simply been representing the foreign 
employer as a mere agent and has been marketing its products in the United States. 
Accordingly, as the record is devoid of evidence establishing that the petitioner was engaged in the regular, 
systematic, and continuous provision of goods and/or services during its first year in operation, the petition 
may not be approved for this additional reason. 
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 of 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), am, 345 F.3d 683 
(9th Cir. 2003); see also Dor v. INS, 891 F.2d at 1002 n. 9 (noting that the AAO reviews appeals on a de novo 
basis). 
WAC 08 049 50621 
Page 10 
The petition will be denied for the above stated reasons, with each considered as an independent and 
alternative basis for denial. When the AAO denies a petition on multiple alternative grounds, a plaintiff can 
succeed on a challenge only if it is shown that the AAO abused its discretion with respect to all of the AAO1s 
enumerated grounds. See Spencer Enterprises, Inc., 229 F. Supp. 2d at 1 043. 
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. 8 1361. Here, that burden has not been met. Accordingly, the 
appeal will be dismissed. 
ORDER: The appeal is dismissed.