dismissed L-1A Case: Manufacturing

U.S. Department of Homeland Security 
20 Massachusetts Ave., N.W., Rm. A3042 
Washington, DC 20529 
FILE: WAC 03 189 53826 Office: CALIFORNIA SERVICE CENTER Date: ~8 0 7 
IN RE: Petitioner: 
Beneficiary: 
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section TOl(a)(15)(L) of the Immigration 
and Nationality Act, 8 U.S.C. § 1 101 (a)(15)(L) 
ON BEHALF OF PETITIONER: 
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. Wiernann, Director 
0 Administrative Appeals Ofice 
WAC 03 189 53826 
Page 2 
DISCUSSION: The Director, California Senice 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 nonimrnigrant petition seeking to employ the beneficiary as its executive manager in 
the nonimmigrant visa category of L-1A intracompany transferee pursuant to section 101(a)(15)(L) of the 
Immigration and Nationality Act (the Act), 8 U.S.C. 4 1 lOl(a)(lS)(L). The petitioner is a corporation 
organized in the State of Arizona and claims to be engaged in the business of procuring contracts for the 
manufacture of a patented trash-collecting machine that was designed by the beneficiary. The petitioner 
states that it is a subsidiary of located in Ausmtlia. 
The director denied the petition concluding that the petitioner failed to establish that it would support a 
managerial or executive position within one year of commencing operations and determined that the 
beneficiary would not be employed in a qualifying capacity. 
On appeal, counsel disputes the director's findings and submits a brief in support of her assertions. 
To establish L-1 eligibility under section 101(a)(15)(L) of the Immigration and Nationality Act (the Act), 
8 U.S.C. 8 1 101 (a)(15)(L), the petitioner must demonstrate that the beneficiary, within three years preceding 
the beneficiary's application for admission into the United States, has been employed abroad in a qualifying 
managerial or executive capacity, or in a capacity involving specialized knowledge, for one continuous year 
by a qualifying organization and seeks to enter the United States temporarily in order to continue to render his 
or her senices to the same employer or a subsidiary or affiliate thereof in a capacity that is managerial, 
executive, or involves specialized knowledge. 
The regulations at 8 C.F.R. 4 214.2(1)(3)(~) state that if the petition indicates that the beneficiary is coming to 
the United States as a manager or executive to open or to be employed in a new office in the United States, 
the petitioner shall submit evidence that: 
A) Sufficient physical premises to house the new office have been secured; 
B) The beneficiary has been employed for one continuous year in the three year period 
preceding the filing of the petition in an executive or managerial capacity and that the 
proposed employment involved executive or managerial authority over the new ' 
operation; and 
C) The intended United States operation, within one year of the approval of the petition, 
will support an executive or managerial position as defined in paragraphs (I)(l)(ii)(B) 
or (C) of this section, supported by information regarding: 
(0 The proposed nature of the office describing the scope of the entity, its 
organizational structure, and its financial goals; 
(2) The size of the United States investment and the financial ability of the 
foreign entity to remunerate the beneficiary and to commence doing 
business in the United States: and 
WAC 03 189 53826 
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(3) The organizational structure of the foreign entity. 
At issue in this proceeding is whether the petitioner has established that the beneficiary would be employed in 
a managerial or executive capacity. 
Section 101 (a)(44)(A) of the Act, 8 U.S.C. 5 1 101(a)(44)(A), provides: 
The tenn "managerial capacity" means an assignment within an organization in which the 
employee primarily - 
1. 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; 
. . . 
111. 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 dlrectly 
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. § 1 lOl(a)(#)(B), provides: 
The term "executive capacity" means an assignment within an organization in whlch 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; 
. . . 
111. 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. 
In the Supplement to Form 1-129, the petitioner stated that the beneficiary would manage the company; 
oversee and implement all contracts and licenses; and manage training and customer relations. 
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On June 18, 2003, Citizenship and Immigration Services (CIS) issued a request for additional evidence. The 
petitioner was asked to provide a breakdown of costs needed to create and operate the new business, including 
a hiring plan and a projected income statement. 
In response, the petitioner submitted a letter from counsel, dated July 2, 2003. Counsel explained that the 
beneficiary designed and patented a trash-collecting vehicle, and claimed that the petitioner's sole purpose is 
to procure contracts from companies who wish to manufacture this new product. Counsel also stated that 
, holds a patent license to the beneficiary's product and that is in the process of purchasing 
the company that will incur the manufacturing expenses. Counsel provided the following description 
of the beneficiary's proposed job duties in the United States: 
The beneficiary will manage and direct the petitioning U.S. company and actively procure 
contracts and license agreements for the Pendulum Packer. He will direct the manufacturing 
process at each of the contracted sites with detailed management and consulting with the 
company executives. The beneficiary will be solely in charge of hiring or firing of any U.S. 
employees, which would mainly consist of any clerical staff there is a need for in the future. 
At the present time, the petitioner is operating out of an office space in Arizona, but the main 
amount of initial work will be done at the manufacturing plant for in order to get the 
Pendulum Packer properly up and running. When the next contract is under way, the 
beneficiary will then have to travel to procure more contracts and then to oversee and manage 
the manufacturing process at the future sites as well. 
Counsel also claimed that the petitioner's only need is to procure contracts and manage the manufacturing of 
the patented product. Since the beneficiary fulfills this need, counsel stated that the petitioner requires little 
capital in order to operate. 
On July 21, 2003 the director denied the petition questioning the petitioner's ability to operate a viable 
business in the United States or to support the employment of personnel in a qualifying managerial or 
executive capacity. The director determined that record lacks evidence to enable CIS to conclude that the 
beneficiary would be employed in a managerial or executive capacity. 
On appeal, counsel submits a brief asserting that CIS'S decision is refuted by related case law. However, 
most of the decisions cited by counsel are unpublished and therefore have no weight in the outcome of this 
matter. See 8 C.F.R. 9 103.3(c). Although counsel cites the case of Matter of LeBlanc, 13 I&N Dec. 8 16 
(Reg. Comm'r 1971), that case merely makes certain allowances for those beneficiaries who come to the 
United States to be employed in new office. In the instant case, the director does not object to the petitioner's 
new office status and places no undue burdens that are not required by statute and regulations. Therefore, the 
case cited by counsel does not overcome any of the director's objections. 
Counsel also cites the case of Matter of -- iami (Reg. Comm'r So. Reg. Jan. 26, 1981). 
However, counsel has not provided the AA decision to substantiate her interpretation of 
the ruling of the Regional Commissioner, Southern Region. Without documentary evidence to support the 
claim, the assertions of counsel will not satisfy the petitioner's burden of proof. The assertions of counsel do 
not constitute evidence. Matter of Obaigbena, 19 I&N Dec. 533, 534 (BIA 1988); Matter OfLaureano, 19 
I&N Dec. 1 (BIA 1983); Matter ofRamirez-Sanchez, 17 I&N Dec. 503, 506 (BIA 1980). Furthermore, while 
8 C.F.R. 5 103.3(c) provides that CIS precedent decisions are binding on all CIS employees in the 
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administration of the Act, unpublished decisions are not similarly binding. The case cited by counsel is 
unpublished and, therefore, not binding in the instant matter. 
Counsel properly asserts that the amount of capital the foreign entity invests in the new U.S. entity does not 
determine whether the beneficiary will be employed in a managerial or executive capacity. However, the 
record and counsel's statements clearly convey the petitioner's plan to contribute no more funds to expanding 
the petitioner's work force. In light of the regulatory requirement that the beneficiary perfom primarily 
qualifylng tasks after the petitioner's first year of operation, the fact that the petitioner does not plan to hire or 
contract additional personnel strongly negates the notion that the beneficiary will be relieved from having to 
perform most of the petitioner's operational tasks. 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. 
2 42(1)(3)(ii). In the instant case, despite the petitioner's failure to provide specifics regarding the 
beneficiary's day-to-day job duties, the petitioner clearly indicates that the beneficiary has been and will be 
the sole individual in charge of procuring new contracts and developing marketing strategies. As the 
petitioner has no plans to hire sales or marketing personnel, the AAO must conclude that the beneficiary will 
perform both sets of duties, It is noted that 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). Thus, despite 
the beneficiary's significant role in the petitioner's overall business plan, the fact that the beneficiary would 
perform all of the petitioner's duties throughout his proposed stay in the United States indicates that the 
petitioner has no plans to employ the beneficiary in a qualifying capacity. The record is replete with 
statements that suggest that the beneficiary's primary task throughout his proposed stay would be to sell a 
product, or at least the idea of the created product, to companies who are willing to manufacture that product. 
No matter how demanding this job would be, the simple fact remains that the beneficiary would primarily 
perform the tasks of a sales and marketing representative. 
On review, the record as presently constituted is not persuasive in demonstrating that the beneficiary would 
be employed in a managerial or executive capacity. The fact that an individual manages a small business 
where the beneficiary is at the top of the organizational hierarchy does not necessarily establish eligibility for 
~Iassification as an intracompany transferee in a managerial or executive capacity within the meaning of 
section 101(a)(44) of the Act. The record does not establish that a majority of the beneficiary's duties would 
be primarily directing the management of the organization. The record indicates that a preponderance of the 
beneficiary's duties would be directly providing the services of the business. Based on the evidence furnished 
and the statements made, it cannot be found that the beneficiary would be employed in a qualifying 
managerial or executive capacity. For this reason, the petition may not be approved. 
Though not directly discussed by the director, the record does not contain sufficient evidence to establish that 
the petitioner and its claimed foreign parent entity have a qualifylng relationship as claimed. The petitioner 
has submitted no evidence that would allow the AAO to conclude that the foreign entity paid for its 
ownership of the U.S. petitioner. Going on record without supporting documentary evidence is not sufficient 
for purposes of meeting the burden of proof in these proceedings. Matter of Treasure Craft of California, 14 
I&N Dec. 190 (Reg. Comm. 1972). The regulations and 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 ~Iassification. Matter of Church Scientology International, 19 
I&N Dec. 593; see also Matter of Siemens Medical Systems, Inc., 19 I&N Dec. 362 (BIA 1986); Matter of 
Htighes, 18 I&N Dec. 289 (Comm. 1982). In context of this visa petition, ownership refers to the direct or 
WAC 03 189 53826 
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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. In the instant case, the 
petitioner has not provided sufficient documentary evidence to determine who owns and controls the 
petitioning entity. 
In addition, the petitioner has not provided sufficient information regarding the beneficiary's job duties 
abroad. Therefore, the AAO cannot affirmatively determine that the beneficiary was employed in a 
qualifying position abroad for the required statutory period. 
It is noted that 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), 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). As such, based on the additional grounds discussed in the above 
paragraphs, this petition cannot be approved. 
In visa petition proceedings, the burden of proving eligbility 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. 
ORDER: The appeal is dismissed.