dismissed L-1A Case: Lighting Fixtures

identifying dar;l uerekea ru 
pmt dearly unwar- 
invasbor~~ ---- 
PUBLIC COPY 
U.S. Department of Hnmelund Security 
20 Mass. Ave, N.W., Rm. A3042 
Washington. DC 20529 
U. S. Citizenship 
and Immigration 
Services 
File: EAC 03 202 50867 Office: VERMONT SERVICE CENTER Date: JUN 2 9 2005 
Petition: Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(15)(L) of the 
Immigration and Nationality Act, 8 U.S.C. 6 1 101(a)(15)(L) 
IN BEHALF OF PETITIONER: 
This is the decision of the Adminish-ative 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. Wlemann, Dlrec tor 
Administrative Appeals Ofice 
EAC 03 202 50867 
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 filed this nonimmigrant petition seeking to extend the employment of its managing director 
as an L- I A nonimmigrant intracompany transferee pursuant to section 1 0 1 (a)( lS)(L) of the Immigration 
and Nationality Act (the Act), 8 U.S.C. $ 1101(a)(15)(L). The petitioner is a corporation organized in the 
State of New Jersey that is engaged in the manufacture and distribution of lighting fixtures. The 
petitioner claims that it is the subsidiary o, located in Maharashtra. India, 
by way of the foreign entity's involvement in a joint venture. The beneficiary was initially granted a one- 
year period of stay, and the petitioner now seeks to extend the beneficiary's stay for an additional three 
years. 
The director denied the petition concluding that the petitioner did not establish that the beneficiary has 
been and will continue to be employed in the United States in a primarily managerial or executive 
capacity. 
The petitioner filed an appeal in response to the denial. On appeal, counsel for the petitioner contends 
that the director's denial was arbitrary and capricious, and that the petitioner had satisfied all the 
requirements of the regulations. 1n support of these contentions, counsel submits a brief and additional 
evidence for consideration. 
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. 9 214.2(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)(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. 
EAC 03 202 50867 
Page 3 
(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. 
The regulation at 8 C.F.R. 5 214.2(1)(14)(i) also provides that a visa petition may be extended by filing a 
new Form 1-129. 
The issue in this matter is whether the beneficiary will be employed by the United States entity in a 
primarily managerial or executive capacity. 
Section IOl(a)(44)(A) of the Act, 8 U.S.C. $ 1101(a)(44j(A), defines the term "managerial capacity" as 
an assignment within an organization in which the employee primarily: 
(ij 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 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 101(a)(44)(3) of the Act, 8 U.S.C. 5 1101(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 making; and 
EAC 03 202 50867 
Page 4 
(iv) receives only general supervision or direction fiom higher level executives, the board 
of directors, or stockholders of the organization. 
In the initial petition, the petitioner's former counsel submitted a letter dated June 24, 2003 from the 
petitioner detailing the nature of the beneficiary's duties. Specifically, the petitioner stated: 
As managing director with [the petitioner], [the beneficiary] will continue to exercise 
discretionary authority in the day-to-day operations of the company. In this position, [the 
beneficiary] will continue to: 
Develop [the petitioner's] volume and profit in the United States in accordance with 
policies and guidelines set by the company including the overall marketing plan and 
philosophies Department 
Promote the brand name to be synonymous with high quality and cost 
effective lighting fixtures 
Identify new markets for penetration and serve as Senior Liaison with distributors to 
assure that these markets are assessed 
DeveIop marketing strategy to reach retailers, wholesalers, and consumers 
Recruit sales and marketing staff 
Educate sales teams about our line of products 
Oversee distribution and inventory control of product line in the United States 
Maintain regular communication with [the foreign entity] regarding production and 
transfer of products 
On September 8, 2003, the director requested additional evidence pertaining to the nature of the 
beneficiary's position. Specifically, with regard to the beneficiary's claimed position, the director 
requested a breakdown of the beneficiary's duties and the hours devoted to each duty on a weekly basis. 
In addition, the director requested an organizational chart for the U.S. entity as well as a description of a11 
the duties performed by the petitioner's other employees. 
In a letter dated November 25, 2003, the petitioner's former counsel submitted a detailed response to the 
points raised by the director. With respect to the beneficiary's duties, the regulatory definitions of both 
managerial and executive capacity were restated, and the manner in which the beneficiary's duties 
complied with each aspect of the definitions was discussed. In addition, former counsel provided a 
breakdown of the time the beneficiary devoted to each duty. This list was essentially the same list of 
duties previously submitted with the addition of an hourly breakdown for each duty: 
o Develop [the petitioner's] volume and profit in the United States in accordance with 
policies and guidelines set by the company including the overall marketing plan and 
Department (25 Hours) 
o Promote the brand name to be synonymous with high quality and cost 
effective lighting fixtures (3 Hours) 
EAC 03 202 50867 
Page 5 
D Identify new markets for penetration and serve as Senior Liaison with distributors to 
assure that these markets are assessed (5 Hours) 
o Develop marketing strategy to reach retailers, wholesalers, and consumers (5 Hours) 
o Educate sales teams about our line of products (1 Hour) 
Oversee distribution and inventory control of product line in the United States (2 Hours) 
o Maintain regular communication with [the foreign entity] regarding production and 
transfer of products (1 Hour) 
The petitioner's former counsel omitted the duty identified as "recruit sales and marketing staff," which 
was identified as a duty in the initial description of duties submitted by the petitioner. Furthermore, the 
letter contended that since the petitioner was still a newly established business, the director should take 
into account the reasonable needs of the petitioner in light of its overall stage of development when 
assessing the beneficiary's qualifications. Finally, the letter stated that the petitioner was outsourcing 
many positions to relieve the beneficiary from performing the day-to-day operational tasks associated 
with running the business. 
On January 28,2004, the director denied the petition. The director, who reviewed the record to determine 
eligibility under both managerial and executive capacity, found that the evidence in the record was 
insufficient to warrant a finding that the beneficiary had been and would continue to be functioning in a 
capacity that was primarily managerial or executive. SpecificalIy, the director found that based on the 
evidence submitted, it appeared that the beneficiary engaged in the day-to-day tasks essential to the 
operation of the business. The director concluded that no evidence was submitted to clearly show that the 
beneficiary was engaged in policy and general operations oversight and further concluded that the 
petitioner had failed to substantiate its claim that many positions were outsourced, thus relieving the 
beneficiary from performing non-qualifying tasks. 
On appeal, the petitioner's newly-retained counsel asserts that the beneficiary does in fact meet the 
requirements for both managerial and executive capacity. With regard to the beneficiary's qualifications 
under managerial capacity, counsel asserts that contrary to the previous assertions, the beneficiary is the 
petitioner's president and CEO, and submits a revised list of duties accompanied by a new breakdown of 
the hours devoted to each newly-stated duty. Counsel further asserts that the beneficiary supervises a 
manager, an unspecified number of marketing specialists, and an administrative/accounting assistant and 
that the petitioner will hire an additional seven employees in 2004. Counsel concludes that this "clearly 
demonstrates that the beneficiary has not previously functioned as a first line supervisor but actually 
supervised important managerial personnel continuously since 2003." Finally, with regard to the 
beneficiary's qualifications under executive capacity, counsel provides an additional list of duties not 
previously submitted and restates the beneficiary's alleged supervision of the above referenced 
subordinate employees as evidence of the beneficiary's qualifications. 
Upon review, counsel's assertions are not persuasive. 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 
EAC 03 202 50867 
Page 6 
capacity. Id. The burden is on the petitioner to specifically state whether the beneficiary is primarily 
employed in a managerial or executive capacity. 
As previously stated, the initial description of the beneficiary's duties was insufficient. Consequently, the 
director requested additional details regarding the beneficlary's duties and a breakdown of a typical week 
in the beneficiary's job. The petitioner's response omitted one of the beneficiary's previously-stated 
duties, namely "recruit sales and marketing staff," and stated that the beneficiary devoted forty-two hours 
per week to the duties listed in the initial petition. This breakdown of the hours the beneficiary devoted to 
each duty, though requested, did little to clarify the manner in which the beneficiary qualified for the 
benefit sought, since the petitioner merely resubmitted the list of duties previously deemed insufficient by 
the director. Although the petitioner's former counsel provided a restatement of the definitions of 
managerial and executive capacity in addition to the hourly breakdown, which further sought to 
illuminate the beneficiary's position, these statements merely paraphrased the regulatory definitions. 
Reciting the beneficiary's vague job responsibilities or broadly-cast business objectives is not sufficient; 
the regulations require a detailed description of the beneficiary's daily job duties. This recitation failed to 
answer a critical question in this case: What does the beneficiary primarily do on a daily basis'? The 
actual duties themselves will reveal the true nature of the employment. Fedin Bros. Co., Ltd. v. Savu, 724 
F. Supp. 1103, 1108(E.D.N.Y. 1989),ufd, 905 F.2d41 (2d. Cir. 1990). 
The evidence submitted prior to adjudication was insufficient to establish that the beneficiary functioned 
in a capacity that was primarily managerial or executive. Although the petitioner alleged that the majority 
of the beneficiary's time (25 hours) was devoted to developing the petitioner's volume and profit in the 
United States by implementing a marketing plan, the petitioner failed to present evidence which 
established that the beneficiary was primarily devoted to this type of task. The petitioner, through the 
former counsel's letter of November 25, 2003, alleges that it outsourced "many positions" to relieve the 
beneficiary from performing the day-to-day tasks of the business. However, no evidence to support this 
claim was submitted. Going on record without supporting documentary ev~dence is not sufficient for 
purposes of meeting the burden of proof in these proceedings. Matter of Soffici, 22 I&N Dec. 158, 165 
(Comm. 1998) (citing Murter of Treasure Cruft ((California, 14 I&N Dec. 190 (Reg. Comm. 1972)). 
Furthermore, without documentary evidence to support the claim, the assertions of counsel will not 
satisfy the petitioner's burden of proof. The unsupported assertions of counsel do not constitute evidence. 
Matter of Obaigbena, 19 I&N Dec. 533, 534 (BIA 1988); Mutter of Laureano, 19 I&N Dec. 1 (BIA 
1983); Mutter of Ramirez-Sanchez, 17 I&N Dec. 503, 506 (BIA 1980). Therefore, the evidence 
submitted with the petition and in response to the request for additional evidence was insufficient to 
establish that the beneficiary was relieved from performing the required tasks to keep the business 
operational, such as sales, marketing, and customer service duties. 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 
(Comm. 1988). 
The petitioner's newly-appointed counsel submits a detailed and significantly altered list of duties on 
appeal. The newly-submitted claims suggest that contrary to the contentions before appeal, the 
beneficiary is president and CEO of the petitioner, and not the managing director as previously claimed. 
EAC 03 202 50867 
Page 7 
In addition, counsel's new list of duties and the claimed number of hours devoted thereto significantly 
differs from the duties listed prior to adjudication. This evidence is conflicting and considerably alters the 
duties originally attributed to the beneficiary. As a result, these assertions will not be considered. On 
appeal, a petitioner cannot offer a new position to the beneficiary, or materially change a position's title, 
its level of authority within the organizational hierarchy, or the associated job responsibilities. The 
petitioner must establish that the position offered to the beneficiary when the petition was filed merits 
classification as a managerial or executive position. Marter of Michelin Tire Corp., 17 l&N Dec. 248,249 
(Reg. C'omm. 1978). A petitioner may not make material changes to a petition in an effort to make a 
deficient petition conform to Citizenship and Immigration Services (CIS) requirements. See Matter of 
Izumrni, 22 I&N Dec. 169, 176 (Assoc. Comm. 1998). 
The AAO, however, will consider counsel's assertion on appeal, and former counsel's assertion in 
response to the request for evidence, that the director failed to consider the reasonable needs of the 
petitioner in light of its overall stage of development. A company's size alone, without taking into 
account the reasonable needs of the organization, may not be the determining factor in denying a visa to a 
multinational manager or executive. See # 101(a)(44)(C) of the Act, 8 U.S.C. tj 1101(a)(44)(C). 
However, 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 operations of the company, or a "shell company" that does 
not conduct business in a regular and continuous manner. See, e.g. Sy.stronic.s Corp. v. INS, 153 F. Supp. 
2d 7, 15 (D.D.C. 2001). The size of a company may be especially relevant when CIS notes discrepancies 
in the record and fails to believe that the facts asserted are true. Id. 
In this case, the petitioner's former counsel alleged that "many positions" were outsourced in an effort to 
relieve the beneficiary from performing non-qualifying duties. On appeal, the petitioner's newly- 
appointed counsel alleges that the beneficiary has three subordinate employees under his supervision, and 
that he oversees the work performed by independent contractors. No evidence, however, confirming that 
the petitioner in fact retained employees or used the services of independent contractors was submitted. 
As previously stated, without documentary evidence to support the claim, the assertions of counsel will 
not satisfy the petitioner's burden of proof. The unsupported assertions of counsel do not constitute 
evidence. Matter of Ohaigbena, 19 I&N Dec. at 534; Matter of Luureano, 19 I&N Dec. at 1; Matter of' 
Ramirez-Sanchez, 17 I&N Dec, at 506. Furthermore, no discussion of subordinate employees or their 
duties was submitted in response to the director's specific request for such information, but was submitted 
for the first time on appeal. The regulation states that the petitioner shall submit additional evidence as 
the director, in his or her discretion, may deem necessary. The purpose of the request for evidence is to 
elicit further information that clarifies whether eligibility for the benefit sought has been established, as of 
the time the petition is filed. See 8 C.F.R. fjCj 103.2(b)(8) and (12). The failure to submit requested 
evidence that precludes a material line of inquiry shall be grounds for denying the petition. 8 C.F.R. tj 
103.2(b)(14). 
Where, as here, a petitioner has been put on notice of a deficiency in the evidence and has been given an 
opportunity to respond to that deficiency, the AAO will not accept evidence offered for the first time on 
appeal. See Matter of Soriano, 19 I&N Dec. 764 (BIA 1988); see also Mutter of Obuigbena, 19 I&N 
EAC 03 202 50867 
Page 8 
Dec. at 533. If the petitioner had wanted the submitted evidence to be considered, it should have 
submitted the documents in response to the director's request for evidence. Id. Under the circumstances, 
the AAO need not and does not consider the sufficiency of the evidence submitted on appeal. 
The record does not contain evidence that the beneficiary was employed in the United States in a 
primarily managerial or executive capacity, pursuant to sections 101(a)(44)(A) and (B) of the Act. 
Although the petitioner contends that due to a weak economy its business grew slowly but will steadily 
prosper in the future, the record lacks evidence to establish that the beneficiary will function primurily in 
a managerial or executive capacity in his position with the petitioner. At the time of filing, the petitioner 
was a 3-year-old company. Its Form 1120, U.S. Corporation Income Tax Return for 2002, indicated a 
gross income of $0 and no wages paid to employees. Despite the petitioner's claims that positions were 
outsourced to relieve the beneficiary from performing non-qualifying duties, the record does not contain 
evidence that any other employees or contractors were retained by the petitioner to relieve the beneficiary 
from performing the essential duties necessary to keep the petitioner in business. Thus, it is logical to 
conclude that the beneficiary himself is performing the essential functions. Consequently, the AAO is left 
to question the validity of the petitioner's claim and the remainder of the beneficiary's claimed duties. 
Doubt cast on any aspect of the petitioner's proof may, of course, lead to a reevaluation of the reliability 
and sufficiency of the remaining evidence offered in support of the visa petition. Matter of'Ho, 19 I&N 
Dec. 582,591 (BIA 1988). 
For the reasons set forth above, the petitioner has failed to establish that the beneficiary's duties are 
primarily managerial or executive in nature. For this reason, the petition may not be approved. 
Beyond the decision of the director, the remaining issue in this proceeding is whether the petitioner has 
established that a qualifying relationship exists between the petitioning entity and a foreign entity 
pursuant to 8 C.F.R. tj 214.2(1)(l)(ii)(G). The petitioner claims that it is related to the foreign entity by 
way of a joint venture. Schedule K of the petitioner's Form 1120, U.S. Corporation Income Tax Return, 
indicates that the beneficiary is the majority owner of the petitioner by way of a 5 1% ownership interest. 
However, stock certificates dated October 17, 2000 indicate is divided 
between the claimed foreign parent, who owns 510 shares, and , which owns 490 
shares. The beneficiary's claimed ownership of 5 1% of the petitioner on its 2002 federal tax return might 
be reconciled if the beneficiary owned 100% of the foreign entity. However, based on the foreign entity 
shareholder documents submitted, the beneficiary only appears to own approximately 9.5% of the 
claimed foreign parent. 
Moreover, it is also unclear from the record whether the submitted stock certificates of the petitioner, 
totaling 1,000 shares, represent all stocks issued to date by the U.S. entity. Specifically, the petitioner's 
stock certificates indicate that the company is authorized to issue a total of 5,000 shares at a par value of 
$1.00 each. First, no corporate minutes were submitted to evidence that only 1,000 shares have been 
issued thus far. Second, Schedule L of the petitioner's 2002 corporate tax return indicates that it has 
$15,900 worth of common stock outstanding. At a par value of $1 .OO each, this would mean over 15,000 
shares had been issued, not 1,000 as the petitioner claims. Thus, due to these inconsistencies in the 
record, the AAO is unable to determine if a qualifying relationship exists between the petitioner and the 
EAC 03 202 50867 
Page 9 
foreign entity. 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 Iies. Matter ofHo, 
19 I&N Dec. 582,591-92 (BIA 1988). 
The petitioner has submitted insufficient evidence to establish that a qualifying relationship exists 
between the petitioner and the claimed foreign parent. As general evidence of a petitioner's claimed 
qualifying relationship, stock certificates alone are not sufficient evidence to determine whether a 
stockholder maintains ownership and control of a corporate entity. The corporate stock certificate ledger, 
stock certificate registry, corporate bylaws, and the minutes of relevant annual shareholder meetings must 
also be examined to determine the total number of shares issued, the exact number issued to the 
shareholder, and the subsequent percentage ownership and its effect on corporate control. Additionally, a 
petitioning company must disclose all agreements relating to the voting of shares, the distribution of 
profit, the management and direction of the subsidiary, and any other factor affecting actual control of the 
entity. See Matter of Siemens Medical Systems. Inc., 19 I&N Dec. 362 (BIA 1986). Without full 
disclosure of all relevant documents, CIS is unable to determine the elements of ownership and control. 
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 of the grounds for denial in the initial 
decision. See Spencer EnrerpriseL~, Inc. v. United States, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 2001). 
affd. 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. 5 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,