dismissed L-1A Case: Maintenance And Repair Services

FILE: 
U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rrn. A3042 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
Services 
PETITION: Petition for a Nonimrnigrant Worker Pursuant to Section IOl(a)(15)(L) of the 
Immigration and Nationality Act, 8 U.S.C. 5 1 101(a)(15)(L) 
ON BEHALF OF PETITIONER: 
SELF-REPRESENTED 
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. 
pobert P. Wiemann, - irector /---4- 
l~dministrative Appeals Office 
Page 2 
DISCUSSION: The nonimmigrant visa petition was denied by the Director, Texas Service 
Center, and is now before the Administrative Appeals Office (AAO) on appeal. The appeal will 
be dismissed. 
The petitioner endeavors to classify the beneficiary as a manager or executive pursuant to section 
lOl(a)(15)(L) of the Immigration and Nationality Act (the Act), 8 U.S.C. $ 1101(a)(15)(L). The 
petitioner claims to be a wholly owned subsidiary of Soluciones Climaticas Inc., located in 
Venezuela and claims to engage in the business of importing and exporting household appliances. 
Upon review, it appears the petitioner is primarily engaged in the provision of handyman 
services. The initial petition was approved for one year to allow the petitioner to open a new 
office. It seeks to extend the petition's validity and the beneficiary's stay for two years as the U.S. 
entity's finance manager. The petitioner was incorporated in the State of Florida on October 19, 
2001 and claims to have two employees. 
On April 8, 2003, the director denied the petition because the petitioner failed to establish that the 
beneficiary has been and will be employed in a primarily executive or managerial capacity. 
On appeal, the petitioner refutes the director's findings and claims, "we have attempted to 
complete all listed requirements." 
To establish L-1 eligibility under section 101(a)(15)(L) of the Act, the petitioner must meet 
certain criteria. 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. Furthermore, 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. 
In relevant part, the regulations at 8 C.F.R. $ 214.2(1)(14)(3) state 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. 
Further, pursuant to 8 C.F.R. § 214.2(1)(14)(ii), if the petitioner is filing a petition to extend the 
beneficiary's stay for L-1 classification, the regulation requires: 
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: 
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(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 issue in this proceeding is whether the beneficiary has been and will be primarily performing 
executive or managerial duties for the United States entity. Section 101(a)(44)(A) of the Act, 8 
U.S.C. $ 1101(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 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)(B) of the Act, 8 U.S.C. 3 1101(a)(44)(B), provides: 
The term "executive capacity" means 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 
(iv) receives only general supervision or direction from higher level 
executives, the board of directors, or stockholders of the organization. 
On March 17, 2003, the petitioner filed the Form 1-129, but failed to describe the beneficiary's 
proposed U.S. duties. As a result, on March 26, 2003, the director requested additional evidence 
such as how the beneficiary meets the criterion of a manager or executive, a copy of the 
petitioner's Employer's State Quarterly Tax Return, a copy of the petitioner's Form 940 EZ, 
Employer's Annual Federal Unemployment Tax Return, and a description of any additional 
employees' duties and educational backgrounds. 
In response, the petitioner submitted a letter describing the development of the company and an 
attached project for the company. The letter indicated that the company had changed its 
objectives and would be engaged in providing maintenance and repair services for air 
conditioning units, plumbing, carpentry, and electricity. The letter stated that this change in plans 
required "a redesignation of roles and positions for the development of the required activities 
regarding management of operations and administrative management, resulting in assigning 
operational activities to the managing personnel." The petitioner also submitted Forms 941, 
Employer's Quarterly Federal Tax Return for the last three quarters of 2002 and its 2002 Form 
940, evidencing total wages of $10,000 paid to all employees in 2002. 
On April 8, 2003, the director denied the petition because the petitioner failed to establish that the 
beneficiary has been and will be employed in a primarily executive or managerial capacity. The 
director found that "references were made by the petitioner indicating that the business is still in a 
developmental stage." 
On appeal, the petitioner refutes the director's findings and claims, "we have attempted to 
complete all listed requirements." The petitioner claims that it has "hired two full time employees 
and one part time employee to fulfill all request of your department." In addition, the petitioner 
describes the beneficiary's proposed U.S. duties as: 
Providing leadership for all finance, accounting and commercial functions 
including administration, It, legal, secretarial, and project finance. Submitting 
accurate and timely financial reporting both management and statutory. 
Participates [in] the evaluation of projects and maintains control over spending 
tour. [sic] Insures levels of spending are within guidelines. Establishes and 
maintains relationships with funding organizations. Assists on project 
management with CEO. 
In examining the executive or managerial capacity of the beneficiary, the AAO will look first to 
the petitioner's description of job duties. See 8 C.F.R. 5 214.2(1)(3)(ii). The definitions of 
executive and managerial capacity have two parts. First, the petitioner must show that the 
beneficiary performs the high level responsibilities that are specified in the definitions. Second, 
the petitioner must prove that the beneficiary primarily performs these specified responsibilities 
and does not spend a majority of his or her time on day-to-day functions. Champion World, Inc. 
v. INS, 940 F.2d 1533 (Table), 1991 WL 144470 (9th Cir. July 30, 1991). On review, the 
petitioner has not established that the beneficiary has been and will be employed in a primarily 
executive or managerial capacity. The beneficiary's described duties are unclear, vague, or 
overbroad. For example, on appeal, the petitioner describes the beneficiary's duties as 
"[I]nsur[ing] levels of spending are within guideline[s]" and "[p]articipat[ing] [in] the evaluation 
of projects." However, it is unclear how the beneficiary will insure that the levels of spending are 
within the company's guidelines or how the beneficiary will participate in evaluating projects. 
Going on record without supporting documentary evidence is not sufficient for purposes of 
meeting the burden of proof in these proceedings. Matter of Sofici, 22 I&N Dec. 158, 165 
(Comm. 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comrn. 
1972)). Additionally, if the beneficiary's proposed U.S. duties are not adequately described, it is 
not the AAO's position to decipher exactly what the beneficiary does on a day-to-day basis. The 
actual duties themselves reveal the true nature of the employment. Fedin Bros. Co., Ltd. v. Sava, 
724 F. Supp. 1103, 1108 (E.D.N.Y. 1989), nfd, 905 F.2d 41 (2d. Cir. 1990). Specifics are 
clearly an important 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. Id. 
Further, the petitioner described the beneficiary as being involved in "[plroviding leadership for 
all finance, accounting and commercial functions including administration, It, legal, secretarial, 
and project finance." However, the record did not indicate who would actually perform the 
finance, accounting, and commercial functions rather than the beneficiary himself. The petitioner 
submitted no evidence that it employed workers to perform such duties; therefore, although the 
petitioner claimed that the beneficiary will provide leadership, it is not clear whom the 
beneficiary will be leading. This leads the AAO to conclude that the beneficiary himself will be 
performing the listed tasks. This conclusion is supported by the petitioner's response to the 
request for evidence in which it stated that the company's new business plan resulted in 
"assigning operational activities to the managing personnel." 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). 
Although the beneficiary is not required to supervise personnel, if it is claimed that the 
beneficiary's duties involve supervising employees, the petitioner must establish that the 
subordinate employees are supervisory, professional, or managerial. See 3 lOl(a)(#)(A)(ii) of 
the Act. On appeal, the petitioner claims that it has "hired two full time employees and one part 
time employee." Although the petitioner claims that it hired these employees in April 2003, the 
director requested this evidence on March 26, 2003. 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 
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Page 6 
for the benefit sought has been established, as of the time the petition is filed. See 8 C.F.R. $9 
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. !j 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 Matter of 
Obaigbena, 19 I&N Dec. 533 (BIA 1988). 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. 
After careful consideration of the evidence, the AAO concludes that the petitioner has failed to 
establish that the beneficiary has been and will be employed in a primarily executive or 
managerial capacity. For this reason, the petition may not be approved. 
Beyond the decision of the director, the AAO is not persuaded that a qualifying relationship exists 
between the petitioner and foreign entity. In defining the nonimrnigrant classification, the 
regulations specifically provide for the temporary admission of an intracompany transferee "to 
the United States to be employed by a parent, branch, affiliate, or subsidiary of the foreign firm, 
corporation, or other legal entity." 8 C.F.R. 3 214.2(1)(1)(i). The AAO notes that there are 
discrepancies in the record. On Form 1-129, the petitioner indicated that the "foreign entity owns 
100 percent of the U.S. entity." The petitioner submitted its articles of incorporation and stock 
certificate indicating that the U.S. company issued 500 shares of stock to the foreign entity. 
However, the 2001, Form 1 120, U.S. Corporation Income Tax Return Form 1120, Schedule K, 
did not indicate that a corporation owned 50 percent or more of the U.S. entity's voting stock. 
Additionally, Fonn 1120, Schedule L, indicated $8,320 in shareholder's equity. The lack of 
current evidence and inconsistencies in the record lead the AAO to conclude that there is 
insufficient evidence to establish that a qualifying relationship exists between the petitioner and 
foreign entity. Going on record without supporting documentary evidence is not sufficient for 
purposes of meeting the burden of proof in these proceedings. Matter of Sofici, 22 I&N Dec. 
158, 165 (Cornrn. 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. 
Cornrn. 1972)). In addition, 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. Matter of Ho, 19 I&N Dec. 582, 591-92 (BIA 1988). For this 
additional reason, the petition may not be approved. 
Another issue not addressed by the director is whether the petitioning entity has been doing 
business for the previous year. At the time the petitioner seeks an extension of the new office 
petition, the regulations at 8 C.F.R. 5 214.2(1)(14)(ii)(B) requires the petitioner to demonstrate 
that it has been doing business for the previous year. The term "doing business" is defined in the 
regulations as "the regular, systematic, and continuous provision of goods and/or 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." 8 C.F.R. 3 214.2(1)(l)(ii). In this matter, 
the petitioner is required to establish that the company has been doing business since the new 
office petition was approved in March 2002. The AAO could find no evidence that the petitioner 
was doing business prior to June 2002, and only minimal evidence of business conducted after 
that date. 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 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), af'd. 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. 1361. Here, that burden has not 
been met. Accordingly, the appeal will be dismissed. 
ORDER: The appeal is dismissed.