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PUBLIC COPY 
U.S. Department of Homeland Security 
20 Massachusetts Ave. N.W., Rm. A3042 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
File: EAC 04 022 51433 Office: VERMONT SERVICE CENTER Date: JON 0 2 2006 
Petition: 
 Petition for a Nonimmigrant Worker Pursuant to Section 10 1 (a)(l5)(L) of the Immigration 
and Nationality Act, 8 U.S.C. $ 1 10 1 (a)(15)(L) 
IN BEHALF OF PETITIONER: 
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. 
Rob 
Administrative Appeals Office 
EAC 04 022 5 1433 
Page 2 
DISCUSSION: The Director, Vermont Service Center, denied the petition for a nonimmigrant visa, and 
upheld the decision after a subsequent motion to reopen was filed by the petitioner. 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 director of business 
development as an L- 1 A nonimmigrant intracompany transferee pursuant to section 10 1 (a)(] 5)(L) of the 
Immigration and Nationality Act (the Act), 8 U.S.C. 5 1101(a)(15)(L). The petitioner is a corporation 
organized in the 
 in medical transcription services. The petitioner claims 
that it is a branch o 
 ., located in Hyderabad, India. The beneficiary was initially 
granted a 
 in the United States, 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 will be 
employed in the United States in a primarily managerial or executive capacity. 
The petitioner subsequently filed a motion to reopen, which was granted by the director. Upon review, the 
director found that the petitioner had not overcome the grounds for the denial and upheld the previous 
decision. On appeal, counsel for the petitioner asserts that the director failed to adequately consider the 
abundance of evidence submitted in support of the beneficiary's qualifications. In support of this assertion, 
counsel submits additional evidence. 
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. 5 214.2(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 04 022 5 1433 
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)(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 be employed in a managerial or executive 
capacity; and 
(e) 
 Evidence of the financial status of the United States operation. 
The issue in the present 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. tj 1 101(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; 
(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 
EAC 04 022 5 1433 
Page 4 
(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. fj 1 101 (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 
(iv) 
 receives only general supervision or direction from higher level executives, the board 
of directors, or stockholders of the organization. 
In an October 17, 2003 letter of support submitted with the initial petition, the petitioner states that the 
beneficiary manages the function of business development for the U.S. petitioner, and claims that this role is 
executive in nature. Specifically, the petitioner describes her duties as follows: 
Besides successfully completing incorporation formalities, she has arranged for office 
accommodation, and has negotiated and developed complex relationships with our clients. 
[The beneficiary's] position will require management of a function - that of business 
development, and is primarily in the nature of an executive role. However, should our 
clientele base and market share increase, as it is expected to within the next year, she will 
perform some managerial functions in the future, mainly connected with directing the work 
of additional employees to be engaged in the installation and implementation of our software 
at client sites, training client personnel, completing login procedures, and maintaining 
servers. She has already placed some advertisements with this end in view. 
[The beneficiary] will not be concerned with non-managerial, day-to-day operations involved 
in producing a product or providing a service. At the present stage of our business, she does 
not have any day-to-day operations to speak of, other than the occasional installation and 
implementation of our software at new client sites, training new client personnel, and 
completing login procedures for new clients. These non-managerial functions she has 
performed on only a few occasions in the past year, where we have secured new clients 
through her efforts. Due to her efforts we also have several additional potential clients in the 
EAC 04 022 5 1433 
Page 5 
pipeline, and hope to secure their orders in due course. At a future date, depending on the 
expected expansion of our business, she will also be involved in purchases, and hiring of 
employees to perform day-to-day operations as would be necessitated by amplified growth. 
The petitioner further stated that the beneficiary personally met with potential clients such as hospital 
managers, practicing doctors, and hospital document administrators to assess their individual needs. 
In addition to the description of duties, the petitioner submitted a brochure of the petitioner which presented 
an overview of the petitioner's business plan and which claimed that the first year of operations would consist 
primarily of marketing, both directly and by telemarketing. No staff projections or specific business 
objectives were provided, but copies of ads placed in local papers seeking qualified personnel were submitted 
in support of the petitioner's attempts to staff the operation. Finally, copies of numerous contracts between 
the petitioner and medical providers for transcription services were submitted. 
On January 13, 2004, the director requested additional evidence. Specifically, the director requested that the 
petitioner submit more detailed information regarding the beneficiary's duties and the manner in which they 
were managerial and/or executive in nature. Specifically, a complete description of duties was requested, 
including a list of all subordinate staff members and their positions and duties within the organization. 
Finally, copies of the petitioner's Forms 941, Employer's Quarterly Federal Tax Returns, were requested for 
the previous two quarters. 
In response, counsel for the petitioner submitted a detailed list of the beneficiary's duties, and indicated that 
the beneficiary had since appointed a marketing consultant, a marketing manager, and an administrative 
assistant. Copies of employment agreements dated December 18, 2003, January 8, 2004, and March 30, 
2004, respectively, were submitted in verification of their employment. 
With regard to the beneficiary's duties, counsel provided a more detailed list addressing the specific nature of 
the beneficiary's duties, and provided the following breakdown of time devoted to each class of duties in an 
average 40 hour workweek: 
Follow up with prospective clientsmarketing: 15 hours 
Answering e-mails: 5 hours 
Trouble shoot and tech support: 
 5 hours 
Updating the directors in Indialnet meeting: 5 hours 
Daily meeting with the sales person: 10 hours 
On June 7, 2004, the director denied the petition. The director determined that the beneficiary was not 
employed in a primarily managerial or executive capacity and that, since the evidence suggested she was the 
petitioner's sole employee, it was indisputable that she was required to perform firsthand the essential tasks 
necessary for the continued operation of the business. 
EAC 04 022 5 1433 
Page 6 
On July 2, 2004, counsel for the petitioner filed a motion to reopen and asserted that the beneficiary's role in 
developing the business in fact consisted of qualifying duties. Counsel resubmitted some of the previously 
submitted documentation to reiterate the points previously addressed with regard to the beneficiary's duties. 
On August 6, 2004, the director affirmed the previous decision, noting that upon review of the motion and the 
evidence submitted therein, there was no evidence to establish that the beneficiary's day-to-day duties were in 
fact managerial. Counsel then filed the instant appeal with the AAO. 
Upon review, the AAO concurs with the director's previous decisions in this matter. 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 capacity. Id. The petitioner must specifically state whether the beneficiary is 
primarily employed in a managerial or executive capacity.' 
On appeal, counsel resubmits a description of the beneficiary's duties, and refers the AAO to the numerous 
documents previously submitted in support of the petition. The AAO, upon review of the record of 
proceeding, concurs with the director's finding that the petitioner has not demonstrated that the beneficiary 
will be employed in a primarily managerial or executive capacity. 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 petitioner 
claims that the beneficiary's duties are exclusively managerial and/or executive, yet the identified duties of 
the beneficiary in the record include numerous non-qualifying tasks. For example, the petitioner states that 
the beneficiary has and will continue to enter into contracts for transcription services, personally installs and 
implements the petitioner's software in client businesses, and spends 30% of her time on marketing functions 
each week. Such duties are not included in the definition of either managerial or executive capacity, which 
counsel so strongly urges the AAO to consider. The record contains no additional evidence or explanation 
with regard to the duties of the beneficiary. Merely claiming that the beneficiary is a manager or an executive 
is insufficient to establish eligibility in this matter. 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. Cornm. 1972). 
In addition, counsel refers to the response to the request for evidence, indicating that the beneficiary now 
oversees three subordinate personnel and that she is relieved from performing non-qualifying duties, except in 
1 
 The AAO notes that the petitioner alleges that the beneficiary manages an essential function of the business, 
i.e., business development, which falls under the definition of managerial capacity. The petitioner, however, 
claims that such a duty is executive in nature. A beneficiary may not claim to be employed as a hybrid 
"executive/manager" and rely on partial sections of the two statutory definitions. If the petitioner chooses to 
represent the beneficiary as both an executive and a manager, it must establish that the beneficiary meets each 
of the four criteria set forth in the statutory definition for executive and the statutory definition for manager. 
The AAO will allot equal consideration to whether the beneficiary qualifies under either definition, but 
cautions the petitioner to be more specific with this issue in the future. 
EAC 04 022 5 1433 
Page 7 
limited circumstances as needed. The AAO notes that based on the three employment agreements executed 
by the beneficiary and each employee, it appears that all of these employees were hired after the extension 
was filed and after the one-year period of stay had expired. Consequently, this evidence is not persuasive in 
establishing the beneficiary's qualifications, since the petitioner must establish eligibility at the time of filing 
the nonimmigrant 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). While the petitioner continually alleges that the business is getting to a stage where other 
employees can relieve the beneficiary from performing non-qualifying duties, the relevant stage of the 
petitioner was that of the time of filing. The AAO notes that the beneficiary's signature appears on all of the 
contracts, and since she was the only employee during the petitioner's first year of operation, it is clear that 
she performed an abundance of non-qualifying duties; otherwise, the petitioner's business would not be in a 
profitable state of growth. Finally, it is undisputed that the beneficiary is engaged in client-related services, 
and personally visits clients and meets with clients to assess their needs. 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 fact that an individual manages a small business does not necessarily establish eligibility for 
classification 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 have 
been or will be primarily directing the management of the organization. The petitioner has not demonstrated 
that it has reached or will reach a level of organizational complexity wherein the hiring/firing of personnel, 
discretionary decision-making, and setting company goals and policies constitutes significant components of 
the duties performed on a day-to-day basis. 
On appeal, counsel argues that "it would be far more an implementation of the intent of the L-1 regulations to 
scrutinize the managerial content of the beneficiary's role at the time of adjudicating the next petition, and 
justifiably so, since by the end of the three years, the business would have had a fair opportunity to expand 
operations, staff and managerial functions." Counsel's assertion is contrary to both the law and the 
regulations. Specifically, the regulation at 8 C.F.R. fj 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. Based on the 
evidence furnished, it cannot be found that the beneficiary has been or will be employed primarily in a 
qualifying managerial or executive capacity. 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. 9 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.