dismissed L-1A Case: Medical Equipment

U.S. Department of Homelsnd Security 
20 Mass. Avc, N.W. Rm. A3042 
Washington, DC 20529 
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.,,- U.S. Citizenship ,:; W~S&,F F.; ,~.~kt.&+. d~% ye\ and Immigration 
File: SRC 03 244 53540 . Office: TEXAS SERVICE CENTER Date: 
IN RE: 
Petition: Petition for a Nonimrnigrant Worker Pursuant to Section 10l(a)(15)(L) of the Immigration 
and Nationality Act, 8 U.S.C. $ 1 lOl(aX15)(L) 
IN 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. 
kbert P. (Kiemann. Director 
Administrative Appeals Office 
SRC 03 244 53540 
Page 2 
DISCUSSION: The Director, Texas Service Center, denied the petition for a nonimrnigrant 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 branch manager as an 
L-1A nonirnmigrant intracompany transferee pursuant to section 101(a)(15)(L) of the Immigration and 
Nationality ~ct-(the Act), 8 .C. 1101 a)(lS)(L). The petitioner, a Florida corporation, claims to have a 
qualifying relationship with M located in Argentina, and is engaged in the wholesale purcha.e 
and export of mhopedic and surgical equipment. The beneficiary was initially granted a one-year period of 
stay to open a new off~ce in the United States, and the petitioner now seeks to extend the beneficiary's stay. 
The director denied the petition concluding that the petitioner did not establish that the beneficiary will 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 reasserts that the 
beneficiary has been and will continue to function as a manager and/or executive. In support of these 
contentions, counsel submits a brief and additional evidence. 
To establish eligibility for the L-1 nonimrnigrant 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. 4 214.2(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 (I)(l)(ii)(G) of this section. 
(ii) Evidence that the alien will be employed in an executive, rnanagerial. 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. 
(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 Statcs; however, the work in the United States need not be the 
same work which the alien performed abroad. 
SRC 03 244 53540 
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The regulation at 8 C.F.R. Q 214.2(1)(14)(ii) also provides that a visa petition, which involved the opening of a 
new office, 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 (I)(l)(ii)(G) of this section; 
(b) Evidence that the United States entity has been doing business as defined in 
paragraph (I)(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 bc employed in a management or executive 
capacity; and 
(e) Evidence of the financial status of the United States operation. 
The primary issue in this matter is whether the beneficiary will be employed by the United States entity in a 
primarily managerial or executive capacity. 
Section 101(a)(44)(A) of the Act, 8 U.S.C. 5 1101(a)(44)(A), defines the term "managerial capacity" as an 
assignment within an organization in which the employee primarily: 
(i) manages the organization, or a department, subdivision, function, or component of 
the organization; 
(ii) supervises and controls the work of other supervisory, professional, or managerial 
employees, or manages an essential function within the organization, or a department 
or subdivision of the organization; 
i 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 he acting in a managerial 
capacity merely by virtue of the supervisor's supervisory duties unless the employees 
Supe~ised are professional. 
SRC 03 244 53540 
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Section lOl(a)(44)(B) of the Act, 8 U.S.C. 5 1101(a)(44)(B), defines the term "executive capacity" as an 
assignment within an organi~ation 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. 
In the initial petition, counsel subrnitted a letter from the petitioner, dated August 27, 2003, which provided 
an overview of the U.S. entity's business dealings and the beneficiary's role within this structure. With 
regard to the beneficiary, the petitioner stated: 
In order to work on and accomplish the key goals vital to the growth, development and 
business mission of [the petitioner], the continued presence of [the beneficiary] is essential. 
[The beneficiary's] energy, ability and management of [the petitioner's] branch operations in 
[the United States] have clearly demonstrated his skill in overcoming the significant obstacles 
to success occasioned by the absence of [beneficiary's son] and said individual's skill set in 
the repair and refitting of medical equipment. [The beneficiary's] swift and effective re-focus 
on other profitable lines of medical equipment - specifically in the area of microspores. scrub 
brushes, disposable surgical dressings, medical cloth. medical tapes, medical adhesives. and 
bandages -has allowed the Company to develop and grow.1 
The foreign petitioner further stated that the beneficiary would be entering the United States in order to apply 
his experience as a sales manager to the start-up of the U.S. business. 
On October 4, 2003, the director requested additional evidence pertaining to the nature of the beneficiary's 
position in the U.S. business. The request specifically asked the petitioner to submit the following 
documentation: a detailed list of the beneficiary's proposed duties; an organizational chart demonstrating his 
position within the organizational hierarchy; the names, job titles, and duties of the employees he would 
supervise; and evidence of the employment and wages paid to the petitioner's U.S. employees. Also 
requested was evidence showing that the foreign entity was doing business for the previous year as defined by 
the regulations. Tn a response received on December 4. 2003, the petitioner submitted several documents, 
including its Quarterly Federal Tax Returns and its Quarterly Wage Reports. These documents indicated that 
two employees were working for the U.S. entity for the quarters ending June 30, 2003 and September 30, 
' In this letter, the petitioner explained that another intracompany transferee, namely, the beneficiary's son, 
was granted authorization to work with the U.S. entity. Due to problems with the American consulatc. 
however, he was prohibited from entering the country. 
SRC 03 244 53540 
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2003; namely, the beneficiary and Iso submitted were various documents in the 
Spanish language that appear to be 
On December 16, 2003, 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 establish that the beneficiary was primarily employed in a managerial or executive capacity. 
The director further concluded that the evidence submitted indicated that the beneficiary performed many or 
all of the day-today tasks essential to the business operations, and thus his primary duties involved non- 
managerial or non-executive tasks. 
On appeal, counsel for the introduces new evidence, and further expands on the beneficiary's - - 
managerial and executive duties. Counsel allcaes that the beneficiary will continue to expand the - - 
organization in the year 2004, and specifically asserts tha entified as the president 
of the organization in previously submitted documents, i the company. Counsel 
llliiuw 
beneficiary is the actual president of the U.S. cntity. and that the beneficiary will supenisem 
well as the entire marketing department. In conclusion, counsel asserts that the beneficiary's 
duties are primarily managerial or executive in nature. 
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. § 214.2(1)(3)(ii). The petitioner's description of the job 
duties must clearly describe the duties to be performed by the beneficiary and indicate whether such duties are 
either in an executive or managerial capacity. Id. 
The description of duties provided by the petitioner in the initial petition did little to describe the beneficiary's 
actual duties, nor did it describe the nature of the beneficiary's day-today tasks. Instead, it merely stated that 
the beneficiary's services were required in order for the business to continue. Finally, it failed to articulate 
the amount of time the beneficiary would devote to each of his daily and weekly tasks. As previously stated, 
the initial evidence submitted was insufficient to find wardnt approval. Consequently, the director requested 
more specific information, including an organizational chart showing the organizational hierarchy of the U.S. 
entity in addition to a detailed description of the beneficiary's subordindtes and their duties. In response to 
the director's request, the petitioner merely submitted copies of its quarterly tax returns without any 
discussion or explanation as to the employees listed therein. 
The AAO, upon review of the record of proceeding, concurs with the director's finding that thc beneficiary 
will not be employed in either a primarily managerial or executive capacity. First, the petitioner failed to 
specifically articulate the nature of the beneficiary's duties. 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., Lfd. v. Suvu, 724 F. 
Supp. I103 (E.D.N.Y. 1989). afd, 905 F.2d 41 (2d. Cir.. 1990). Second, whether the beneficiary is a 
manager or executive employee turns on whether the petitioner has sustained its burden of proving that his 
duties are "primarily" managerial or executive. See sections 101(a)(44)(A) and (B) of the Act. Here, the 
getitioner provides virtually no detail or discussion of the beneficiary's actual duties prior to adjudication. 
SRC 03 244 53540 
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Instead, the petitioner merely claims that the services of the beneficiary are essential 'lo work on and 
accomplish the key goals vital to the growth, development, and business mission" of the petitioner. 
On appeal, counsef provides additional descriptions of the beneficiary's duties. Specifically, counsel 
paraphrases the statutory definitions of both managerial and executive capacity. and provides a me to two- 
sentence explanation of how each of the criteria pertains to the beneficiary. These explanations. however, are 
once again not specific. Based on the current record, the AAO is unable to determine whether the claimed 
managerial andlor executive duties constitute the majority of the beneficiary's duties. or whether the 
beneficiary primarily performs non-managerial administrative or operational duties. 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. Suva, 724 F. Supp. 1103 (E.D.N.Y. 1989), ufd, 905 F.2d 41 (2d. Cir. 1990). 
In this case, the petitioner also submits several contradictory statements that are unresolved by the evidence 
submitted on appeal. Specifically, the petitioner ted a letter from the U.S. 
petitioner, dated August 27. 2003 and signed by President of the company. 
Furthermore, ,.the fist sentence of this letter states '7 am the president of [the 
however, counsel states that the beneficiary is in fact the president of the U.S. entity, and that 
the vice president. This change in the beneficiary's position title is not persuasive to e 
beneficiary's duties are primarily managerial or executive. 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. Maner of Michelin Tire Corp., 17 I&N Dec. 248, 249 (Reg. Cornm. 1978). A petitioner may not 
mab material changes to a petition in an effort to make a deficient petition conform to CIS requirements. See 
Matter of lzumrni, 22 I&N Dec. 169,176 (Assac. Cornm. 1998). 
Furthermore, counsel submits an organizational chart on appeal that further states that the beneficiary is the 
president of the U.S. entity, and that he will supervise the vice president as well as one employee in the 
marketing department. As previously stated, this evidence is not acceptable as it makes a material change to 
the beneficiary' s title on appeal. See id Furthermore, although the director specifically requested an 
organizational chart for the U.S. entity in the request for evidence issued on October 4. 2003, the petitioner 
failed to submit such a document. The petitioner was put on notice of the required evidence and given a 
reasonable opportunity to provide it for the record before the visa petition was adjudicated. The petitioner 
failed to submit the requested evidence and now submits it on appeal. However, the AAO will not consider 
this evidence for any purpose. See Matter of Soriano, 19 I&N Dec. 764 (BIA 1988); Matter of Obaigbena. 19 
IBrN Dec. 533 (BTA 1988). The appeal will be adjudicated based on the record of proceeding before the 
director. 
that prior to adjudication, the record indicated that the U.S. entlt em loyed 
president, the beneficiary as branch manager, a 
In in an no indication that any other employees were wor ng or t e petdloner at the -. - 
time of filing. Although details of all employees and their positions and duties were requested in the 
SRC 03 244 53540 
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director's request for evidence, the petitioner failed to address this issue. As a result, the evidence contained 
in the record consisted of (1) non-specific descriptions 
the August 27, 2003 letter that the beneficiary was a branch manager and as president; and 
(3) quarterly tax returns for the quarters ending June confirming the 
employment of only two employees, the beneficiary and 
Based on this minimal documentation, the AAO must conclude that the beneficiary was not acting in a 
primarily managerial or executive capacity. With regard to managerial capacity, there is no evidence that the 
beneficiary managed the organization or supervised professional employees, since it is evident that he was 
second in command in the organizational hierarchy of the entity at the time of the petition's filing. In 
addition, it is unlikely that the beneficiary was acting in a primarily executive capacity, as no evidence exists 
to indicate that he directed the management of the organization or established its goals 
evidence to the contrary, it must be concluded that the president of the U.S. entity, 
invested with these powers and duties. Finally, there is no explanation with 
administrative and clerical functions that are required in the operation of a business. The petitioner would 
like the AAO to presume that the president and the branch manager of the organization engaged in primarily 
managerial or executive tasks with a single subordinate employee to engage in the day-to-day operations of 
the business. Based on the current record, the AAO is unable to determine whether the claimed managerial 
and/or executive duties constitute the majority of the beneficiary's duties, or whether the beneficiary primarily 
performs non-managerial administrative or operational duties, The petitioner's description of the beneficiary's 
job duties does not establish what proportion of the beneficiary's duties is managerial in nature, and what 
proportion is actually non-managerial. See Republic of Transkei v. INS. 923 F.2d 175. 177 (D.C. Cir. 1991). 
Consequently, the AAO must conclude that the beneficiary was and will be performing day-today tasks 
essential to the operation of the business. 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 1&N Dec. 593,604 (Cornrn. 1988). 
Finally, although the petitioner and counsel continually allege that the beneficiary's duties are primarily 
managerial or executive, there is no independent evidence to support these claims. Going on record without 
supporting documentary evidence is not sufficient for purposes of meeting the burden of proof in these 
proceedings. Matrer of Treasure Craft of Calgornia, 14 I&N Dec. 190 (Reg. Comrn. 1972). 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. Maner of Obaigbena, 19 I&N Dec. 533, 534 
(BIA 1988); Matter of lourennu, 19 I&N Dec. 1 (BIA 1983); Matter of Rmirez-Smchez. 17 I&N Dec. 503, 
506 (BIA 1980). 
The petitioner has failed to establish that the beneficiary has been and will continue to be employed in a 
managerial or executive capacity, as required by 8 C.F.R. §214.2(1)(3)(iv). The petitioner indicates that it 
plans to hire additional managers and employees in the future. However. 8 C.F.R. 5 214.2(1)(3)(v)(C) allows 
the intended' United States operation one year within the date of approval of the petition to support an 
executive or managerial position. There is no provision in CIS regulations that allows for an extension of this 
one-year period. If the business is not sufficiently operational after one year, the petitioner is ineligible by 
regulation for an extension. In the instant matter, the petitioner has not reached the point that it can employ 
SRC 03 244 53540 
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the beneficiary in a predominantly managerial or executive position. For this reason, the petition may not be 
approved. 
Beyond the findings in the previous decision, the remaining issue in this proceeding is whether the petitioner 
has established that a qualifying relationship still exists between the petitioning entity and the foreign entity 
pursuant to 8 C.F.R. 8 214.2(1)(l)(ii)(G). The petitioner has not demonstrated that a qualifying relationship 
still exists with a foreign entity and has not persuasively demonstrated that the foreign entity will continue 
doing business during the alien's stay in the United States. Other than stating that the U.S. company is a 
branch or "sister" company" to the foreign company, the petitioner has provided no information or supporting 
documentation to support the claimed qualifying relationship or to demonstrate the ownership and control of 
the two entities. Going on record without supporting documentary evidence is not sufficient for purposes of 
meeting the burden of proof in these proceedings. Matter of Treaszrre CraB of California, 14 I&N Dec. 190 
(Reg. Comm. 1972). For this additional reason, the petition may not be approved. 
While not directly addressed by the dimtor, the minimal documentation of the petitioner's business 
operations raises the issue of whcther the petitioner is a qualifying organization doing business in the United 
States. Specifically, under the regulation at 8 C.F.R. g 214.2(1)(l)(ii)(G)(2) a petitioner must demonstrate that 
it is engaged in the regular, systematic, and continuous provision of goods or services and does not represent 
the mere presence of an agent or office in the United States. In addition, the petitioner has provided no 
evidence of the financial status of the U.S. operation as required by 8 C.F.R. 5 214.2(1)(14)(ii)(e). As the 
appeal will be dismissed on other grounds, this issue need not be examined further. 
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), afd. 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. g 1361. Here, that burden has not been met. Accordingly, the 
director's decision will be affirmed and thc petition will be denied. 
ORDER: The appeal is dismissed.