dismissed L-1A Case: Manufacturing

U.S. Department of Homelnnd Security 
20 Mass. Ave.. N.W.. Rm. A3042 
identipgtag data deleted to 
prevent clearly unwarranted 
invasion of personal privacy 
- - - - - - . - 
Washington, DC 20529 
U. S. Citizenship 
and Immigrat~on 
Services 
IN RE: 
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section lOl(a)(l5)(L) of the 
1mmig%on and Nationality Act, 8 U.S.C. g 1 10 l(a)(15)(L) 
INSTRUCTIONS : 
This is the decision of the Administrative Appeals Office in your case. A11 documents have been 
returned to the office that originally decided your case. Any fhther inquiry must be made to that 
office. 
/ 
obert P. Wiernann, Director 
Appeals Office 
DISCUSSION: The nonimmigrant visa petition was denied by the Director, Texas Senice 
Center, and is now before the Administrative Appeals Office (AAO) on appeal. The appeal will 
be dismissed. 
The petitioner, , endeavors to classifl the beneficiary as a nonimmigrant 
manager or executive pursuant to section 101 (a)(lS)(L) of the Immigration and Nationality Act 
The petitioner claims to be a wholly owned subsidiary of 
located in South ~orea.' The petitioner is engaged in manufacturing 
new materials, ultra fine chemicals and functional materials for semiconductor and optical fiber 
manufacturing. 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 three years as 
the U.S. entity's manager. The petitioner was incorporated in the State of Texas in October 2000 
and claims to have one employee. 
On October 25,2002, the director denied the petition. The director determined that the petitioner 
failed to establish that: 1) the petitioner and foreign entity had a qualifying relationship; 2) the 
new office had been doing business for the previous year; and, 3) the beneficiary has been and 
will be employed in a primarily managerial or executive capacity. 
On appeal, the petitioner's counsel refutes the director's decision and states that: I) "a qualifying 
relationship exists between the U.S. entity and its foreign parent company;" 2) "the U.S. entity 
has been engaged in business;" and, 3) "the beneficiary has been and will continue to bA 
employed in a primarily managerial or an executive capacity." Counsel submits a brief and 
additional evidence in support of the appeal. 
To establish L-1 eligibility under section lOl(a)(lS)(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 qualifjmg organization must have employed the beneficiary in 
a qualifyrng 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 parY, the regulations at 8 C.F.R. 5 214.2(1)63) state that an individual petition filed on 
Form I- 129 shall be accompanied by: 
(i) Evidence that the petitioner and the organization which employed or will employ the 
alien are qualifjmg 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. 
' The AAO notes that although on Form 1-129 the mtitioner indicated that the foreim entitv's 
name was ., in the septemb& 10,2002 response to the directo>s requ;st 
for additional evidence, the petitioner claimed that the foreign entity officially changed its name 
- 
Further, the regulations at 8 C.F.R. 5 214.2(l)(14)(ii) require that a visa petition under section 
lOl(a)(ZS)(L) of the Act which involved the opening of a new ofice may be extended by filing a 
new Form 1-129, 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 perfonn under the extended petition; 
@) 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 this proceeding is whether a qualifymg relationship exists between the petitioner 
and foreign entity. 
The regulation at 8 C.F.R. 5 214.2(1)(ii)(G) defines the term "qualifiing organization" as follows: 
(G) Qualifjmg organization means a United States or foreign firm, corporation, or other 
legal entity which: 
(1) Meets exactly one of the quaIdjmg relationships specified in the definitions 
of a parent, branch, amate or subsidiary specified in paragraph (l)(l)(ii) of this 
section; 
(2) , Is or will be doing business (engaging in international trade is not required) 
as an employer in the United States and in at least one other country directly or 
through a parent, branch, affiliate, or subsidiary for the duration of the alien's stay in 
the United States as an intracompany transferee; and 
(3) Otherwise meets the requirements of section 101 (a)(15)(L) of the Act. 
The regulation at 8 C.F.R. 5 214.2(1)(l)(ii) provides the following defmitions: 
(I) Parent means a firm, corporation, or other legal entity whch has subsidiaries. 
(J) Branch means an operation division or office of the same organization housed 
in a different location. 
(K) Subsidiary means a fm, corporation, or other legal entity of which a parent 
owns, directly or indirectly, more than half of the entity and controls the entity; or 
owns, directly or indirectly, half of the entity and controls the entity; or oms, 
directly or indirectly, 50 percent of a 50-50 joint venture and has equal control and 
veto power over the entity; or owns, directly or indirectly, less than half of the entity, 
but in fact controls the entity.. 
(L) Afiliate means 
(I} One of two subsidiaries both of which are owned and controlled by 
the same paGent or individual, or 
(2) One of two legal entities owned and controlled by the same group of 
individuals, each individual owning and controlling approximately the same 
share or proportion of each entity. 
Initiallv, on Form 1-129, the petitioner indicated that the U.S. entity is a wholly owed subsidiary .. , 
of the foreign company and identified the foreign company 
However, the petitioner submitted insufficient evidence to establish the claimed qualifylng 
relationship exists between the petitioner and the foreign entity. Therefore, on June 28,2002, the 
director requested additional evidence to show that the petitioner and foreign entity have a 
qualifylng relationship. In particular, the director requested that the petitioner clearly document 
the current ownership and control of the U.S. and foreign companies. The director specifically 
requested documentation such as copies of corporate bylaws, stock certificates, and published 
annual- reports. 
In response to the director's request, the petitioner submitted a copy of the common share 
certificate for the U.S. company indicating that 10,000 shares of common stock were issued to 
, 2000. The petitioner also submitted an "endorsement" 
sold and transfared 10,000 shares to - 
on June 21, 2001. In addition, the petitioner submitted a letter from the foreign parent 
company explaining that the foreign company changed its name, and provided a copy of-the 
foreign entity's brochure. h zrddition, the petitioner claimed that the foreign entity officially 
changed its name to - 
On October 25, 2002, the director denied the petition. The director determined that the petitioner 
failed to establish that a qualifymg relationship existed between the petitioner and foreign entity. 
The director found that the old name was used on the stock certificate at a time when the new 
name had already been established. The director also identified an endorsement on the back of 
the certificate indicating that the foreign company's old name of the foreign entity "sells, assigns 
and transfers" to the new name of the foreign entity the 10,000 common shares. The director 
noted that if a name change was involved, the company did not need to sell, assign , or transfer its 
shares. The director also noted several other discrepancies in the record including the petitioner's 
Form 1120 U.S. C~rporation Income Tax Return Tax for 2001 reporting that shareholders held 
$50,000 worth of preferred company stock and $50,000 shares of common company stock, and 
Form 5427 Information Return Foreign Owned Corporation for 2001 reporting that the foreign 
entity was the primary shareholder but that Matec, a U.S. company, was a related party. The 
director also questioned the signature on the stock certificate, noting that it was signed by the 
foreign entity's president. 
On appeal, the counsel states, "A qualifying relationship exists between the U.S. entity and its 
foreign parent company." In a November 13, 2002 supporting letter, the president of the foreign 
entity states that the ownership of the company did not change and that the share certificate was 
endorsed to the newly named foreign company to identify the owner of the shares by its legal 
name. The president also claims that the foreign entity has two U.S. subsidiaries and that the 
foreign parent owns 100 percent of the petitioner and 51 percent of Matec, Inc. The petitioner 
explained that because of the relationship between the foreign parent and the U.S. subsidiaries 
that the companies have individuals that are oficers in more than one company. The president 
stated that he signed the U.S. entity's share certificate as the petitioner's president and not as the 
president of the foreign entity. 
In support of the appeal, the petitioner submits additional documentation including a copy of the 
foreign entity's resolution authorizing a name change on September 30, 1999, a letter from the 
petitioner's C.P.A. explaining that there is a $50,000 investment is common stock rather than 
preferred stock, and a copy of its financial statements as of October 3 1,2002. 
Counsel states that the petitioner erred in using the foreign entity's previous name instead of its 
legal name on the petition and on its share certificate, but asserts ''there should be no conhsion 
regarding the qualifylng relationship between the Korean company and [the petitioner]. Counsel 
states that documents submitted with the beneficiary's previous L-1 petition, including his 
em lo rnent verification letter and resume, correctly identified the foreign company as = PY " Counsel concludes that the confusion over the name of the foreign entity "should not preclude a finding that a qualifying relationship exists." 
On review, there is insufficient evidence to establish that a qualifjmg relationship exists between 
the petitioner and the foreign entity pursuant to 8 C.F.R. § 214.2(l)(l)(ii)(G)(l). On Form 1-129, 
the petitioner claims that the U.S. organization is a wholly owned subsidiary of the foreign entity. 
The regulation arid case law confirm that ownership and control are the factors that must be 
examined in determining whether a qualifylng relationship exists between United States and 
foreign entities for purposes of this visa classification. Matter of Church Scientology 
International, 19 I&N Dec. 593 (BIA 1988); see also Matter of Siemens Medical Systems, Inc., 
19 I&N Dec. 362 (BIA 1986); Matter of Hughes, 18 I&N Dec. 289 (Cornm. 1982). In context of 
this visa petition, ownership refers to the direct or indirect legal right of possession of the assets 
of an entity with full power and authority to control; control means the direct or indirect legal 
right and authority to direct the establishment, management, and operations of an entity. Matter 
of Church Scientology International, 19 I&N Dec. at 595. 
The petitioner submitted a copy of the common share certificate of America Eftec, Inc., a letter 
ii-om the foreign parent company, and a copy of the Foreign entity's brochure. In addition, the 
petitioner submitted a copy of the U.S. company's 2001 U.S. Corporation Income Tax Return 
Form 1120 indicating that a foreign corporation owns 100 percent of the U.S. company. 
However, Schedule L indicates that $50,000 worth of preferred stock and $50,000 worth of 
common stock were sold. This is contrary to the common share certificate indicating that the 
foreign entity is the owner of 10,000 common shares of the U.S. entity. In addition, the petitioner 
submitted no evidence to indicate that the foreign entity actually paid for the petitioner's 10,000 
common shares. As noted by the director, there were a number of inconsistencies in the record 
regarding the name of the foreign entity and the value of the company's stock. The petitioner has 
attempted to explain these discrepancies, but some issues have not been adequately resolved. For 
example, the foreign entity's name changed over one year prior to the incorporation of the U.S. 
entity, yet the stock certificate was issued in the old company's name. Instead of issuing a new 
stock certificate to reflect the correct name of the foreign entity, the petitioner's records indicate 
that the stock was "sold, assigned and transferred" to - to = 
The AAO aIso notes that the U.S. company is not listed as a subsidiary in any 
ochures submitted by the petitioner, although these documents mention the 
other claimed U.S. subsidiary,  he petitioner's accountant explained that the 
purported error on the tax return and indicates that the total value of the petitioner's common 
stock is $50,000. However, the petitioner provided no documents, such as its articles of 
incorporation, corporate by-laws, or minutes of relevant annual meetings, establishing how many 
shares it is authorized to issue or the amount paid for them. 
Given the many discrepancies in the record, the single stock certificate submitted by the 
petitioner is insufficient to establish that the foreign entity owns 100 percent of the shares of the 
U.S. company. 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 sub ce pointing to where the truth 
lies. Matter of Ho, 19 I&N Dec These inconsistencies and the 
petitioner's lack of documentation fail to establish that a qualifying relationship exists between 
the petitioner and foreign company. Without supporting and consistent documentation, CIS 
cannot verify whether the petitioner has a qualifying relationshp with the foreign entity. Going 
on record without supporting documentary evidence is insufficient to meet the burden of proof in 
these proceedings. Matter of Soffici, supra. In sum, the petitioner has failed to establish that a 
qualifjrlng relationship exists between it and the South Korean company. For this reason, the 
petition may not be approved 
The second issue in this proceeding is whether the petitioning organization has been doing 
business for the previous year as required by 8 C.F.R. 4 2 14.2(1)( 14)(ii)(B). 
The regulation at 8 C.F.R. 5 214.2(1)(l)(ii)(H) defines "doing business" as "the regular, 
systematic, and continuous provision of goods and/or services by a qualifylng organization and 
does not include the mere presence of an agent or office of the qualifylng organization in the 
United States and abroad." 
The petitioner indicated on the Forrn 1-129 that it had one employee and a gross annual income of 
$205,75 1. 
On June 28, 2002, the director requested additional evidence to show that the petitioner has been 
doing business for the previous year. The director requested the petitioner's current lease and 
financial records such as tax returns, annual reports, profit and loss statements and other 
accountant reports, banking records, employee rosters, invoices, bills of sale, product brochures, 
check register, statement of cash flows, insurance policies, and customs records. 
In response to the director's request, the petitioner submitted a copy of the U.S. entity's 2001 tax 
return, financial statements. bank statements, a copy of a November 1, 2000 sales and support . - - - 
services agreement between 
dh 
and the petitioner, a product and commission rate 
agreement revised June 27,2002, an c ecks paying the beneficiary's salary from April 15,2002 
until June 29,2002. 
On October 25, 2002, the director denied the petition. The director determined that the petitioner 
failed to establish that the U.S. entity had been doing business for the previous year. The hector 
noted that the leased premises is for office space only, not for manufacturing or storing 
chemicals. The director found that the state and federal tax returns indicated that there was only 
one employee during the second quarter of 2002 and that there was no evidence of employees 
during any of the other quarters during 2001 or 2002 to operate the business. The director also 
found that it appeared that based upon an agreement signed between and the petitioner that 
the beneficiary is working for on a commission basis. Therefore, the director determined 
that the petitioner is not continuously, systematically, and regularly providing a product or 
service. 
On appeal, counsel states that the petitioner submitted sufficient evidence to establish that it has 
been doing business for the past year. In a November 13, 2002 supporting letter, the president of 
the foreign-entity states that the petitioner is engaged m the business of selling and marketing the 
foreign entity's and products to customers. Counsel states that the beneficiary receives a 
salary hm the petitioner and is not working on a commission basis as suggested by the director. 
In addition, in a statement in support of form 1-290, the petitioner states that it is submitting 
Employer's Quarterly Federal Tax Returns Form 941 for quarters ending June 30, 2001, 
September 30, 2001, December 3 1, 2001, March 3 1, 2002, June 30, 2002, and September 30, 
2002. The petitioner also claimed that since the U.S. entity sells and markets products, that it does 
not need a lease for a man~facturin~'~1ant. The petitioner submitted two letters stating that the 
storage of chemicals is done at the customer's contractor's location. 
On review, the petrtioner has not established that the U.S. entity has been doing business on a 
regular, systematic, and wntinuous basis pursuant to 8 C.F.R. 5 214.2(1)(l)(ii)(H). The regulation 
at 8 C.F.R. 3 214.2(1)(3)(v)(C) allows the intended United States operation one year within the 
date of approval of the petition to establish the new office. Furthermore, at the time the petitioner 
seeks an extension of the new office petition, the regulations at 8 C.F.R. 8 214.2(1)(14)(ii)(B) 
requires the petitioner to demonstrate that it has been doing business for the previous year. There 
is no provision in CIS regulations that allows for an extension of this one-year period. If the 
business is not sufficiently operationaI after one year, the petitioner is ineligible by regulation for 
an extension. In the instant matter, the petitioner submitted minimal documentation to establish 
that the petitioner was doing business since the beneficiary's arrival to open the new U.S. office 
in May or June of 2001. While the petitioner submitted various bank statements and financial 
statements fiom 2002, the only evidence of business activities conducted in 2001 is the 
company's Form 1 120, U.S. Corporation Income Tax Return for the fiscal year ended on March 
3 1, 2002. This document alone is insufficient to establish that the company has continually been 
doing business since May 2001. Although the petitioner submitted some financial records, the 
petitioner failed to submit the requested evidence of business conducted, such as invoices, bilk of 
sale, payments received for sales commissions, or customs records. Failure to submit requested 
evidence that precludes a material line of inquiry shall be grounds for denying the petition. 
8 C.F.R. 9 103.2(b)(14). Going on record without supporting documentary evidence is not 
sufficient for purposes of meeting the burden of proof in these proceedings. Mutter of Soffici, 22 
I&N Dec. 158, 165 (Comm. 1998) (citing Matter of Treasure Cra$ of California, 14 I&N Dec. 
190 (Reg. Comm. 1972)). 
After careful consideration, the AAO concludes that the petitioner has not demonstrated that the 
U.S. entity has been doing business regularly, systematically, and continuously as required by 
8 C.F.R. 9 214.2(l)(l)(ii)(H). For this reason, the petition may not be approved 
The third issue in this proceeding is whether the beneficiary has been and will be primarily 
performing managerial or executive duties for the United States entity. 
Section 101 (a)(44XA) of the Act, 8 U.S.C. 8 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-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 10 1(a)(44)(B) of the Act, 8 U.S.C. $ 1 10 l(a)(M)(B), provides: 
The term "executive capacity" means an assignment within an organization in whch 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 fimction; 
(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 April 22,2002, the petitioner filed Form 1-129. The petitioner described the beneficiary's U.S. 
duties as: 
Take charge of establishing supervising, expanding, organizing, directing, and 
developing [the U.S. entity]. Have and exercise final decision making authority 
over personnel decisions with [the U.S. entity] including the decision whether to 
hue, fire and/or promote individuals; Supervise the day-today operations of [the 
U.S. entity]. 
In a supporting letter, the petitioner states that the beneficiary is "in charge of the entire 
operation" at~d has "wide latitude in discretionary decision-making." In addition, the beneficiary 
is in charge of: 
Reviewing bids fkom subcontractors and make ultimate decision whether to 
accept a bid by a subcontractor; calling on management representatives, such as 
engineers or other professionals and technical personnel and attempt to convince 
them-.of desirability of our products; reviewing our customer's plans and 
technical documents; giving timely updates of [the petitioner's activities to [the 
president] and other executives of [the foreign entity]. 
On June 28,2002, the director requested that the petitioner submit additional evidence to assist in 
determining whether the beneficiary has been and will be primarily employed in a qualrfying 
managerial or executive capacity. In particular, the director requested that the petitioner describe 
its current staffing including the title, duties, qualifications and hours worked per week. 
In response to the director's request, the petitioner stated that the beneficiary conducts the entire 
[U.S. entity's business] operations (other than professional services retained to conduct legal and 
accounting services). [The beneficiary] has complete discretion to hire additional staff as needed 
and plans to do so soon." 
On October 25, 2002, the director denied the petition. The director determined that the petitioner 
failed to establish that the beneficiary has been and will be primarily employed in a managerial or 
executive capacity. The director found that the beneficiary did not manage a fhction within the 
organization. 
On appeal, counsel states, "The beneficiary has been and will continue to be employed in a 
primarily managerial or an executive capacity." In the statement in support of Form 1-290, 
counsel claims that the beneficiary is engaged in "some sales activities, his primary duty is to 
establish, expend, direct, and develop the business." Counsel also states that the beneficiary 
"deals with professional service providers like accountants. He has made decisions regarding the 
office location and continues to make decisions in terms of how the business will operate." 
Additionally, in a November 13, 2002 letter, signed by the president of the foreign entity, the 
president stated, "there isn't sufficient amount of work to justify hiring additional stafX" 
In examining the executive or managerial capacity of the beneficiary, the AAO will look to the 
description of the beneficiary's U.S. job duties. See 8 C.F.R. 5 214.2(1)(3)(ii). On review, the 
petitioner has provided a vague and nonspecific description of the beneficiary's duties that fail to 
establish what the beneficiary does on a day-to-day basis. For example, the petitioner states that 
the beneficiary's duties include "Take charge of establishing supervising, expanding, organizing, 
directing, and developing [the U.S. entity]." However, these duties are generalities that fail to 
explain how the beneficiary will establish, expand, or develop the U.S. company. 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. at 165. 
Further, the petitioner generally paraphrased the statutory definition of executive capacity. See 
section 101(a)(44)(A) of the Act, 8 U.S.C. 8 1 101(a)(44)(A). For instance, the petitioner depicted 
the beneficiary as exercising "wide latitude in discretionary decision-making." However, 
conclusory assertions regarding the beneficiary's employment capacity are not sufficient. Merely 
repeating the language of the statute or regulations does not satisfy the petitioner's burden of 
proof. Fedin Bros. Co., Ltd. v. Suva, 724 F. Supp. 1 103, 1 108 (E.D.N.Y. 1989), afd, 905 F. 2d 
41 (2d. Cir. 1990); Avyr Associates Inc. v. Meissner, 1997 WL 188942 at *5 (S.D.N.Y.). 
In addition, the petitioner describes the beneficiary as "devotCing] a small amount of [the 
beneficiary's] time to the sales function directly." However, the record does not indicate who 
actually performs the remaining sales activities and the petition t the purpose of the 
company is selling and marketing the foreign entity's and products. Therefore, 
although the petitioner claims the beneficiary only devotes a small amount of time to sales 
activities, it is evident fram the record that the beneficiary by necessity must perform the routine 
sales and marketing tasks. 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 (Comrn. 1988). 
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. IrNS, 940 F.2d 1533 (Table), 199 1 WL 144470 (9th Cir. July 
30, 1991). Here, the petitioner's job description does not establish what proportion of the 
beneficiary's duties is managerial in nature and what proportion is non-managerial. See Republic 
of Tramhi v. INS, 923 F.2d 175, 177 @.C. Cir 1991). 
The AAO is not persuaded that the beneficiary fits the definition of a function manager having 
managerial control and authority over a function of the company. 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 IOl(a)(44)(A)(ii) of the Act, 8 U.S.C. !j 1 101(a)(44)(A)(ii). If a petitioner claims that 
the beneficiary is managing an essential function, the petitioner must 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. In addition, the petitioner 
must provide a comprehensive and detailed description of the beneficiary's daily duties 
demonstrating that the beneficiary manages the function rather than performs the duties relating 
to the function. In the instant matter, the petitioner claims the beneficiary is " in charge of the 
entire operation." However, to allow the broad application of the term "essential function" to 
include such broad claims, without identifying a specific function, would render the term 
meaningless. 
Moreover, the AAO notes that counsel claims that "because of the slow economy, [the 
beneficiary] has delayed hiring of additional staff and has had to therefore devote a small amount 
of his time to the sales function directly . . . . [The beneficiary] will hire additional staff and will 
supervise activities of the professional staff." However, the petitioner must establish eligibility at 
the time of filing the nonirnmigrant 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). 
After careful consideration of the evidence, the AAO concludes that the beneficiary has not been 
and will not be employed in a primarily managerial or executive capacity. For this reason, the 
petition may not be approved. 
Beyond the decision of the director, the AAO is not persuaded that the beneficiary has been 
employed in a managerial or executive capacity abroad as defmed at section 101(a)(44) of the 
Act, 8 U.S.C. tj 1 101(a)(44). As previously stated to establish L-1 eligibility under section 
101(a)(15)(L) of the Act, the petitioner must submit evidence that within three years preceding 
the beneficiary's application for admission into the United States, the foreign organization 
employed the beneficiary in a qualifymg managerial or executive capacity, or in a specialized 
knowledge capacity, for one continuous year. In the request for evidence, the director requested a 
defmitive statement regarding the beneficiary's foreign employment. However, petitioner 
submitted an insufficient and vague description which fails to establish exactly duties the 
beneficiary performed abroad. For example, the petitioner described the beneficiary's foreign 
duties as spending 40 percent of the beneficiary's time as "reviewing a variety of contracts" and 
giving company presentations to investors. However, without additional explanation, the AAO 
cannot determine whether these are managerial duties or whether the beneficiary performed 
routine contract administration and public relations tasks. 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. Fedin 
Bros. Co., Ltd. v. Sava, 724 F. Supp. 1 103 (E.D.N.Y. 1989), afd, 905 F.2d 41 (2d. Cir. 1 990). 
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 (ED, 
Cal. 2001), aff'd. 345 F.3d 683 (9th Cir. 2003); see also Dor v. NS, 891 F.2d 997, 1002 n. 9 (2d 
Cir. 1989)(noting that the AAO reviews appeals on a de novo basis). For this additional reason, 
the petition may not be approved 
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 appeal will be dismissed. 
ORDER: The appeal is dismissed.