dismissed L-1A Case: Medicine

U.S. Department of tturneland Security 
20 Massachusetts Ave., N.W.. Rm. A3042 
Washington. DC 20529 
U.S. Citizenship 
and Immigration 
Services 
., .I . * 
.*' 
FILE: WAC 03 186 54009 Office: CALIFORNIA SERVICE CENTER Date: 
i 
Jur 2 9 2005 
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(15)(L) of the Immigration 
and Nationality Act, 8 U.S.C. S; 1 101(a)(15)(L) 
ON BEHALF OF PETITIONER: 
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 further inquiry must be made to that office. 
obert P. Wiemann, Director 
edrninistralive Appeals Office 
WAC 03 186 54009 
Page 2 
DISCUSSION: The nonimmigrant visa petition was denied by the Director, California Service Center. The 
matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. 
According to the documentary evidence contained in the record, the petitioner was incorporated October 15, 
2002, and claims to be a weight control clinic. The petitioner claims to be a subsidiary of the medical office 
of Carlos J. Breitfield, M.D., located in Uruguay. The petitioner seeks to employ the beneficiary temporarily 
in the United States as the director of services of its new office for a period of one year, at an annual salary of 
$34,000.00. The director determined that the petitioner had submitted insufficient evidence to establish that 
the beneficiary would be employed by the U.S. entity in a primarily manageria1 or executive capacity or that 
the U.S. entity will be able to support such a position within one year of operation. 
On appeal, counsel disagrees with the director's decision and asserts the evidence submitted is sufficient to 
establish that the beneficiary will be employed by the U.S. entity in a primarily managerial or executive 
capacity, and that the entity will be able to support a managerial or executive position within one year of 
operation. 
To establish L-1 eligibility under section IOl(a)(lS)(L) of the Immigration and Nationality Act (the Act), 
8 U.S.C. tj 1 IOl(a)(lS)(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 services to the same employer or a subsidiary or affiliate thereof, in a capacity that is managerial, 
executive, or involves specialized knowledge. 
The regulation at 8 C.F.R. fj 214.2(1)(l)(ii) states, in part: 
1ntrat:ompany transferee means an alien who, within three years preceding the time of his or het 
application for admission into the United States, has been employed abroad continuously for one 
year by a firm or corporation or other legal entity or parent, branch, affiliate, or subsidiary 
thereof, and who seeks to enter the United States temporarily in order to render his or her 
services to a branch of the same employer or a parent, affiliate, or subsidiary thereof in a capacity 
that is managerial, executive, or involves specialized knowledge. 
The regulation at 8 C.F.R. 8 214.2(1)(3) states that an individual petition filed on Form 1-129 shalI 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. 
WAC 03 186 54009 
Page 3 
(iv) Evidence that the aIienls 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 hirn/her 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 reguIation at 8 C.F.R. tj 214.2(1)(3)(~) states 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: 
(1) The proposed nature of the ofice 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 
(3) The organizational structure of the foreign entity. 
The issue in this proceeding is whether the evidence submitted is sufficient to demonstrate that the beneficiary 
will be employed by the U.S. entity in a primarily managerial or executive capacity, and whether the entity 
will be able to support such a position within one year of operation. 
Section 101 (a)(44)(A) of the Act, 8 U.S.C. tj 1 10 1 (a)(44)(A), provides: 
The term "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; 
WAC 03 186 54009 
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(iii) If another employee or other employees are directly supervised, has the 
authority to hire and fire or recommend those as well as other personnel 
actions (such as promotion and leave authorization), or if no other 
employee is directly supervised, functions at a senior level within the 
organizational hierarchy or with respect to the function managed; and 
(iv) Exercises discretion over the day-to-day operations of the activity or 
function for which the employee has authority. A first-line supervisor is 
not considered to be acting in a managerial capacity merely by virtue of 
the supervisor's supervisory duties unless the employees supervised are 
professional. 
Section 101 (a)(44)(B) of the Act, 8 U.S.C. 6 1 10 1 (a)(44)(B), provides: 
The term "executive capacity" means an assignment within an organization in which the 
employee primarily- 
(i> Directs the management of the organization or a major component or 
function of the organization; 
(ii) Establishes the goals and policies of the organization, component, or 
function; 
(iii) Exercises wide latitude in discretionary decision-making; and 
(iv) Receives only general supervision or direction from higher level 
executives, the board of directors, or stockholders of the organization. 
Section I0 l(a)(44)(C) of the Act, 8 U.S.C. 9 1 101 (a)(44)(C), provides: 
If staffing levels are used as a factor in determining whether an individual is acting in a 
managerial or executive capacity, the Attorney General shall take into account the reasonable 
needs of the organization, component, or function in light of the overall purpose and stage of 
development of the organization, component or function. An individual shall not be considered 
to be acting in a managerial or executive capacity (as previously defined) merely on the basis of 
the number of employees that the individual supervises or has supervised or directs or has 
directed. 
The petitioner initially stated that the beneficiary would be responsibIe for the performance of weight control 
technicians. In the letter of support, the petitioner described the beneficiary's proposed duties at the U.S. 
entity as: 
[The beneficiary] will plan, develop and supervise our weight control programs. He will 
direct and coordinate the formulation of dietary plans developed for each individual client. 
He will evaluate the performance of managerial personnel under his command for 
compliance with company policies. 
WAC 03 186 54009 
Page 5 
The petitioner submitted a proposed organizational chart that depicted the U.S. entity's hierarchy. The chart 
demonstrated a cIinicaI records administrator, records clerks, a technician supervisor, and weight control 
technicians all to be under the direction of a services administrator. 
The director determined that insufficient evidence had been submitted to establish the beneficiary's eligibility, 
and subsequently requested the petitioner submit a copy of the U.S. entity's organizational chart to 
demonstrate the proposed employees under the beneficiary's supervision. The director further stated that the 
list of employees should include their job titles, job duties, education level, and annual salaries/wages. The 
director also requested the petitioner submit the US, entity's most recent DE-6 and Form 1120, U.S. 
Corporate Income Tax Return, to demonstrate that the U.S. entity had employees. 
In response to the director's request for evidence, counsel stated that the US. organization had been 
functioning in a "skeletal" mode, and thus, the petitioner was only able to submit a proposed organizational 
chart. Counsel also stated that the Form DE-6 submitted by the petitioner further evidenced that the 
organization functioned in a "skeletal" mode. Counsel further stated the U .S. entity's organizational chart 
showed that the company would be able to support a managerial or executive position within one year of 
operation. The petitioner submitted an addendum to the U.S. entlty's organizational chart, which listed the 
proposed staffing positions and position descriptions of subordinates who would be under the direction of the 
beneficiary. The list read in part: 
Clinical Records Administrator: Supervises employees engaged in the maintenance of client's 
records, weight charts, diet plans and modifications, medical history, etc. Develops methods 
for record maintenance and retrieval of paper and computer records for all Center's clients 
and activities. This position requires a Bachelor's degree in Records Administration or five 
years records experience with a weight management clmic, plus fluency in oral and written 
Spanish as our services will be geared principally to the Hispanic community. Salary offered 
is $28.000/annum. 
Technician Supervisor: Supervises employees engaged in measuring body fat, weighing in 
the clients at each visit, giving weight control advice, reviewing nutritional plans with clients, 
suggesting alternative menus for maximum benefits and monitoring weight loss progress. 
This position requires a minimum of 3 years prior experience. The wage that will be offered 
is $1 8,OOOiyr. 
The director subsequently denied the petition noting that there was no evidence to show that the beneficiary 
would exercise significant authority over generalized policy. The director further noted that although the U.S. 
entity's organizational chart indicated that the beneficiary would supervise a clinical records administrator, 
record clerks, and technician supervisor, this evidence was insufficient to establish that the U.S. entity 
contained the organizational compIexity to support a managerial or executive position. The director also 
noted that the evidence submitted was insufficient to establish that the beneficiary wouId be supervising 
supervisory, professional, or managerial employees. 
On appeal, counsel argues that the beneficiary's title is that of "services administrator" not "general 
manager." Counsel further asserts that the beneficiary will direct or supervise two divisions within the 
organization, each having a first line supervisor and several subordinates. Counsel further argues that the 
WAC 03 186 54009 
Page 6 
clinical records administrator position is both professional and supervisory, and that the technician supervisor 
position is also that of a first line supervisor. Counsel also argues that the petition, Form I-129B, the letters 
of support, the organizational chart, and the response to the director's request for evidence all specify that the 
beneficiary will plan, develop, and supervise the weight control programs, will direct and coordinate the 
formulation of dietary plans, and will evaluate the management personnel's performance under his direction. 
Counsel contends that the beneficiary will supervise the work of other supervisors and professional 
employees, and that he will manage and direct a function or component of the organization. Counsel also 
contends that the beneficiary will function at a senior level within the organization or with respect to the 
function he is to manage, that he will exercise discretion over the day-to-day operations of the business or 
function, and that he will be supervising an employee who holds a professional level position. Counsel 
continues by reiterating the regulatory and statutory definitions of "executive" in describing the beneficiary's 
proposed duties. Finally, counsel claims that the petitioner has submitted ample evidence to demonstrate that 
the U.S. entity will have the organizational complexity to support an executive or manager within one year of 
operation 
On appeal, counsel expanded the beneficiary's proposed job duties to include: 
• Manages a department within the corporation, supervises and controls the work of 
other supervisors and evaluates the work of subordinate staff allowing him to 
recommend promotions, demotions, firing or adding personnel as needed [;I 
Works closely with the company's executive team in defining organizational strategy 
and carrying out the company's vision, mrssion and objectives. Provides 
collaborative leadership and works with company managers to develop and retain 
highly competent, service-oriented staff [;] 
Works in conjunction with the company's President to develop the company's 
growth and financial objectives. At the same time he works with subordinate 
personnel to insure that all employees meet company standards and in removing 
those who do not meet those standards [;I 
Supervises the activities of the department supervisors to ensure that everyone 
follows the policies and strategies which he, as Service Administrator has established 
[;I 
Takes a lead role in all budgeting activities for his department, and is specifically 
responsible for financial profit and loss of his department [;I 
Establishes goals for the department under his command [; and] 
Takes an oversight role in the department's structure. 
On reviewing the petition and the evidence, the petitioner has not established that the beneficiary will be 
employed in a managerial or executive capacity. The petitioner claims that the U.S. entity 1s a newly 
established weight control clinic. When a new business is established and commences operations, the 
regulations recognize that a designated manager or executive responsible for setting up operations will be 
engaged in a variety of activities not normally performed by employees at the executive or managerial level 
and that often the full range of managerial responsibility cannot be performed. In order to qualify for L-1 
nonimmigrant classification during the first year of operations, the regulations require the petitioner to 
disclose the business plans and the size of the United States investment, and thereby establish that the 
proposed enterprise will support an executive or managerial position within one year of the approval of the 
petition. See 8 C.F.R. tj 214.2(1)(3)(v)(C). This evidence should demonstrate a realistic expectation that the 
WAC 03 186 54009 
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enterprise will succeed and rapidly expand as it moves away from the developmental stage to full operations, 
where there would be an actual need for a manager or executive who will primarily perform qualifying duties. 
In this matter, the petitioner's evidence demonstrates that the U.S. entity intends to hire employees who will 
be employed as service administrator, clinical records administrator, records clerk, technician supervisor, and 
weight control technician. Counsel states that the beneficiary will be the services administrator and will direct 
and supervise the work of the clinical records administrator and weight control technician. Contrary to 
counsel's contentions, there is insufficient evidence to show that the proposed positions will be filled by the 
U.S. entity within the first year of its operation or that the employees hired to fill the positions will perform in 
a supervisory, professional, or managerial capacity. See section 101(a)(44)(A)(ii) of the Act. A first-line 
supervisor will not be considered to be acting in a managerial capacity merely by virtue of his or her 
supervisory duties unless the employees supervised are professional. Section 101(a)(44)(A)(iv) of the Act. 
Because the beneficiary will be primarily supervising a staff of non-professional employees, the beneficiary 
cannot be deemed to be primarily acting in a managerial capacity. 
In evaluating whether the beneficiary will be managing professional employees, the AAO must evaluate 
whether the subordinate positions require a baccalaureate degree as a minimum for entry into the field of 
endeavor. Section 101(a)(32) of the Act, 8 U.S.C. 9 1101(a)(32), states that "[tlhe term profession shall 
include but not be limited to architects, engineers, lawyers, physicians, surgeons, and teachers in elementary 
or secondary schools, colleges, academies, or seminaries." The term "profession" contemplates knowledge or 
learning, not merely skill, of an advanced type in a given field gained by a prolonged course of specialized 
instruction and study of at least baccalaureate level, which is a realistic prerequisite to entry into the particular 
field of endeavor. Matter of Sea, 19 I&N Dec. 8 17 (Comm. 1988); Mutter of Ling, 13 I&N Dec. 35 
(R.C. 1968); Matter oofShin, 1 1 I&N Dec. 686 (D.D. 1966). 
Therefore, the AAO must focus on the level of education required by the position, rather than the degree held 
by the subordinate employee. The possession of a bachelor's degree by a subordinate employee does not 
automatically Iead to the conclusion that an employee is employed in a professional capacity as that tenn is 
defined above. Counsel has stated that the clinical records administrator's position requires a bachelor's 
degree or five years experience in the field. The petitioner has not, in fact, established that an advanced 
degree is actually necessary, for example, to perform the administrative work of the clinical records 
administrator, who is among the beneficiary's subordinates. 
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 petitioner must specifically state whether the 
beneficiary is primarily employed in a managerial or executive capacity. In the instant matter, although the 
petitioner claims that the beneficiary will perform managerial and executive duties, it has failed to 
demonstrate how much of the beneficiary's time will be devoted to each. 
The petitioner has provided a vague and nonspecific description of the beneficiary's duties that fails to 
demonstrate what the beneficiary will be doing on a day-to-day basis. For example, the petitioner states that 
the beneficiary's duties will include establishing goals and policies, and exercising discretion over the day-to- 
day activities of the organization. The petitioner did not, however, define the beneficiary's goals and policies, 
or clarify how he will exercise discretion over the day-to-day activities. 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 Cal~ornia, 14 I&N Dee. 190 (Reg. Comm. 1972). Specifics are clearly an 
WAC 03 186 54009 
Page 8 
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. Savu, 724 F. Supp. 1103 (E.D.N.Y. 1989), aff'd. 905 F.2d 41 (2d. Cir. 1990). 
Rather than providing a specific description of the beneficiary's duties, the petitioner generally paraphrased 
the statutory definit~on of executive capacity. See section 10I(a)(44)(A) of the Act, 
8 U.S.C. ij 1101(a)(44)(A). For instance, the petitioner depicted the beneficiary as directing the operation of 
the organization, establishing goals and policies of the organization, and exercising sole discretionary decision 
making. Conclusory assertions regarding the beneficiary's employment capacity are not sufficient to meet the 
petitioner's burden of proof. Merely repeating the language of the statute or regulations does not satisfy the 
petitioner's burden of proof. Fedin Bros, Co., Lfd. at 1108; Avyr Associates lnc. v. Meissner, 1997 WL 
188942 at '5 (S.D.N.Y.). 
On appeal, counsel claims the beneticiary will manage and direct a function or component of the 
organization, in that he will plan, develop, and supervise weight control programs, direct and coordinate the 
fornulation of the dietary plans, and evaluate the performance of managerial personnel under his direction. 
Contrary to counsel's claims, the evidence of record is insufficient to establish that the beneficiary will be 
managing a function or component of the organization rather than performing the duties of the function. 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. 1 10 1 (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. There has been insuftkient 
evidence submitted to establish that the beneficiary will be employed by the U.S. entity in a primarily 
managerial or executive capacity. For this reason, the petition may not be approved. 
Beyond the decision of the director, a related issue is whether the petitioner has established that the 
beneficiary has been employed by the foreign entity in a primarily managerial or executive capacity for one 
continuous year within three years preceding the filing of the petition. Although the petitioner stated that the 
beneficiary had worked for the foreign entity for the past two years in the capacity of director of services, in 
that he directed and supervised, through subordinate personnel, the functions of the nursing staff and weight 
management technicians, there is nothing in the record to substantiate this claim. Further, there is nothing in 
the record to show how the foreign entity will continue to function in the absence of the beneficiary for an 
extended period. For these additional reasons, the petition may not be approved. 
Beyond the decision of the director, the petitioner's description of the stock distribution of the companies does 
not meet exactly the definitions constituting a qualifying relationship between the United States and the 
foreign entity pursuant to 8 C.F.R. § 214.2(1)(l)(ii)(G). The petitioner stated in the petition that Carlos 
Breitfeld owned 60 percent and Sergio Breitfeld owned 40 percent of the stock in the U.S. entity. The 
petitioner submitted as evidence one stock certificate made out to Carlos Breitfeld as holder of sixty thousand 
shares of U.S. entity stock and a blank stock ledger. There is no documentary evidence in the record to 
demonstrate who owns the foreign entity. For this additional reason, the petition may not be approved. 
WAC 03 186 54009 
Page 9 
Beyond the decision of the director, another issue is whether the petitioner has secured sufficient physical 
premises to house the new office pursuant to 8 C.F.R. 8 214.2(1)(3)(v)(A). The petitioner submitted a 
commercial lease agreement that does not contain the name of the lessor, does not specify the duration of the 
lease, and does not contain the signature of the lessee. 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. 1361. The petitioner has not sustained that burden. 
ORDER: The appeal is dismissed.