dismissed L-1A Case: Music Production

uatifyiing data deleted :O 
prrveat cIdy unwarmted 
,&n of pe& priva~ 
US. Department of Homeland Seettrity 
20 Mass. Ave., N.W., Rm. A3042 
Washington, DC 20529 
PUBLIC COPY 
U.S. Citizenship 
and Immigrmon 
Services 
FILE: EAC 03 010 52407 Office: VERMONT SERVICE CENTER Date: 14 2005 
PETITION: Petition for a Nonimrnigrant Worker Pursuant to Section 10 l(a)(15)(L) of the 
Immigration and Nationality Act, 8 U.S.C. 5 I 1 0 1 (a)(] 5)(L) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
This is the decision of the Administrative Appeal? Office in your case. All documents have been 
returned to the office that originalIy decided your case. Any further inquiry must be made to that 
office. 
Pbert P. $Viemann, Director 
Administrative Appeals Office 
EAC 03 0 10 52407 
Page 2 
DISCUSSION: The Director, Vermont Service Center, denied the petition for a nonimrnigrant 
visa. The matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal 
will be dismissed. 
The *etitioner. endeavors to classify the beneficiary as a nonimmigrant manager 
or executive pursuant to section 101(a)(15)(L) of the Immigration and Nationality Act (the Act), 
8 U.S.C. 8 1 lOl(a)(lS)(L). The petitioner claims it is a subsidiary of - 
located in Sweden. It states that it is engaged in the music production, artist representation, and 
A & R consulting business. The initial petition was approved for one year to allow the petitioner 
to open a new office. It seeks to extend the petition's vaIidity and the beneficiary's stay for two 
years as the U.S. entity's president and chief executive officer. The petitioner was incorporated in 
the State of New York in 200 1. 
The director denied the petition because the petitioner failed to establish that the beneficiary will 
be employed in a primarily executive or managerial capacity by the U.S. entity. 
On appeal, the petitioner's counsel refutes the director's decision and asserts that the director 
misunderstood the nature of the position and the petitioner's business. 
To establish L-1 eligibility under section 102(a)(15)(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 qualifLing organization must have employed the beneficiary in 
a qualifylng 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 part, the regulations at 8 C.F.R. 5 214.2(1)(3) state that an individual petition filed on 
Form 1-1 29 shall be accompanied by: 
(i) Evidence that the petitioner and the organization which employed or will 
employ the alien are qualifymg 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. 
Further, the regulations at 8 C.F.R. 5 214.2(1)(14)(ii) require that a visa petition under section 
10l(a)(15)(L) of the Act 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 qualifylng 
organizations as defined in paragraph (I)( 1 )(ii)(G) of this section; 
EAC 03 0 10 52407 
Page 3 
(B) Evidence that the United States entity has been doing business as defined 
in paragraph (l)(l)(ii)O 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 ernpIoyed in a managerial 
or executive capacity; and 
(E) Evidence of the financial status of the United States operation. 
The issue in this proceeding is whether the beneficiary will be primarily performing managerial 
or executive duties for the United States entity. 
Section 101 (aX44XA) of the Act, 8 U.S.C. 1 101 (a)(44)(A), provides: 
The term "managerial capacity" means an assignment within an organization in 
which the employee primarily- 
(i.) manages the organization, or a department, subdivision, firnction, or 
component of the organization; 
{ii.) supervises and controls the work of other supervisory, professional, 
or managerial employees, or manages an essential hction 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 fre or recommend those as we11 as other 
personnel actions (such as promotion and leave authorization), or if no 
other employee is directly supervised, hctions 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 
bction 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. § 1 101(a)(44)(B), provides: 
The term "executive capacity" means an assignment within an organization in 
which the employee primarily- 
EAC 03 0 10 52407 
Page 4 
(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. 
On January 28, 2003, the petitioner filed the Form 1-129 describing the beneficiary's proposed 
duties in the United States as "[elxpand and develop the company's business in North America 
including the roster of artists and music producers; [clonsult with major record labels." 
in an October 7,2002 supporting letter that it has "applied for a 
J-1 visa fo Swedish national who will become a salaried employee of the 
also described the beneficiary's U.S. duties in the letter as: 
Solely responsible for establishing the operations of [the petitioner]. Including 
the planning of business objectives, developing organizational policies and 
directing the creative direction of the company in the United States market. He 
was also responsible for establishing working relationships for [the petitioner] as 
a consultant to major record companies and assisting, supervising and 
coordinating the production of recordings embodying the perfomances of 
musical artists as well as developing new talents for these companies. 
On October 21,2002, the director requested additional evidence from the petitioner that included 
a comprehensive description of the beneficiary's managerial or executive duties, a list of the 
petitioner's employees identifying them by name and position title, a complete job description for 
each employee, and a copy of the employees' W-2 forms and paycheck stubs. 
The petitioner responded to the request for additional evidence by submitting a January 13,2002 
letter stating: 
[The beneficiary] has been involved in the establi shrnent of the organization's 
operations and presence in the United States. Inherent in this senior capacity is 
the planning of business objectives, developing organizational policies and 
directing the creative direction of the company in the United States market. His 
primary responsibility during this start-up phase has been the establishment of 
working relationships for [the petitioner] as a consultant to major record 
companies and assisting, supervising and coordinating the production of 
recordings embodying the performances of musical artists as well as developing 
new talents for these companies. 
EAC 03 010 52407 
Page 5 
Because this is the first year of this new venture and due to the unique nature of 
the music industry, [the beneficiary] has been acting aloe in developing these 
relationships with artists and record labels. In even aspect of business during 
this start-up ~hase. Ithe beneficiarvl is Itbe petitionerl. The company and 
individual are one entity and are interchangeable . . . . 
It should be clear that [the beneficiary] has been acting in an executive capacity 
under the L-1 regulations. He has directed all aspects of getting this company off 
the ground, establishing new business relationships and generating revenues. In 
this crucial start-up phase, it has not been necessary to have a staff in the United 
States office. This will change over the next two years as the company enters into 
new deals. (currently in negotiation) and completes the building of a new 
recording studio. At present, [the petitioner] has hired one individual to work 
with [the beneficiary] and it is also anticipated that [the petitioner] will be hiring 
at least three more individuals in the upcoming year to assist [the beneficiary] to 
move this new company forward. (Emphasis in original). 
On January 28, 2003, the director denied the petition stating that the petitioner failed to establish 
that "in an organization the size and nature of the United States company, the beneficiary will be 
employed in a primarily executive or managerial capacity by the U.S. entity." The director found 
that the beneficiary will be engaged in the non-managerial, day-to-day operations of the business. 
On appeal, the petitioner's counsel claims that the director's decision "ignored statutory 
definitions of managerial capacity." Counsel claims that all clerical day-today functions are 
"carried out by an executive assistant," "[all1 accounting functions are carried on by outside 
accountants/bookkeepers," "all legal matters are ultimately referred to the company's attorneys," 
and "there is no need for a large staff per se, especially at the start-up stage." Counsel states, 
"during the next two years of the company's existence, there would be additional hiring of 
managerial-level staff who will be able to oversee the company in [the beneficiary's] absence." 
Counsel further states that the director ignored the nature of its business and "focused on the fact 
that there were no employees to be supervised." 
In this matter, the petitioner does not clarify whether the beneficiary is claiming to be primarily 
engaged in managerial duties under section 101(a)(44)(A) of the Act, or primarily executive 
duties under section 101(a)(#)(B) of the Act. A beneficiary may not claim to be employed as a 
hybrid "executive/manager" and rely on partial sections of the two statutory definitions. A 
petitioner must establish that a beneficiary meets each of the four criteria set forth in the statutory 
definition for executive and the statutory definition for manager if it is representing the 
beneficiary is both an executive and a manager. 
On review, the petitioner has failed to establish that the beneficiary will be employed in a 
primarily managerial or executive capacity. In examining the executive or managerial capacity of 
the beneficiary, the AAO will first look to the description of the beneficiary's U.S. job duties. See 
8 C.F.R. 9 214.2(1)(3)(ii). Although the director requested a comprehensive description of the 
beneficiary's duties, the petitioner's January 13, 2003 response letter failed to provide a more 
EAC 03 0 10 52407 
Page 6 
specific description of the beneficiary's duties. For example, the petitioner stated that the 
beneficiary's proposed U.S. duties included "planning of business objectives," "developing 
organizational policies," and "direct[ing] all aspects of getting this company off the ground." The 
petitioner did not, however, define or clarify these broad responsibilities. 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 addition, the beneficiary was described as "establishing new business relationships" and the 
petitioner indicated that his primary duties include "assisting, supervising and coordinating the 
production of recordings" and "developing new talents" for record companies. This description 
indicates that the beneficiary spends his time generating new business. Thus, the beneficiary 
himself is selling and providing the services of the business and, based on the petitioner's 
representations, these are his primary duties. For example, the beneficiary is personally 
responsible for performing consulting services under the petitioner's agreement with Sony Music, 
and the petitioner indicates that the beneficiary has been "acting alone" to the extent that "the 
company and the individual are one entity and are interchangeable." The AAO notes 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). 
Moreover, a critical analysis of the nature of the petitioner's business indicates that there are no 
subordinate employees to relieve the beneficiary from performing nonqualifying duties. Rather, 
it appears fiom the record that the only individual operating the business is the beneficiary. In the 
January 13, 2003 letter, the petitioner cIaimed, "At present, [the petitioner] has hired one 
individual to work with [the beneficiary]." In addition, on appeal, counsel claims, "With regard to 
the day to day functions of the company, all clerical day-today functions are carried out by an 
executive assistant." and "there is no need for a large staff per se, especially at the start-up stage." 
However, to establish that the petitioner has staffed the new operation in the previous year, the 
petitioner must submit a description of staffing, including the number of employees and the types 
of positions, as welt as evidence of the wages paid to the employees. 8 C.F.R. 
§ 214.2(1)(14)(ii)(D). In the absence of such evidence as pay stubs and payroll records, the 
petitioner has not established that the petitioner employs a subordinate staff that would relieve the 
beneficiary fiom performing non-qualifjmg duties. Additionally, failure to submit requested 
evidence that precludes a material line of inquiry shall be grounds for denying the petition. 
8 C.F.R. 103.2(b)(14). 
The AAO notes that although counsel states on appeal that the petitioner has contractual 
employees in the areas of accounting and bookkeeping, and legal services, the petitioner has 
neither presented evidence to document the existence of these employees nor identified the 
services these individuals provide. Additionally, the petitioner has not explained how the services 
of the contracted employees obviate the need for the beneficiary to primarily conduct the 
petitioner's business. Going on record without supporting documentary evidence is not sufficient 
for purposes of meeting the burden of proof in these proceedings. Matter of Soffci, 22 I&N Dec. 
EAC 03 010 52407 
Page 7 
158, 165 (Cornm. 1998) (citing Matter of Treasure Crajt of California, 14 I&N Dec. 190 (Reg. 
Cornm. 1972)). 
Further, 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 101(a)(44)(A)(ii) of the Act, 8 U.S.C. 
8 1 10 1 (a)(44)(A)(ii). The petitioner stated that the beneficiary is responsible for "directing the 
creative direction of the company." However, 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 hction rather than performs the duties relating to the function. As 
previously stated, 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). In this 
matter, the petitioner has not provided evidence that the beneficiary manages an essential 
function. 
As required by section 101(a)(44)(C) of the Act, if staff~ng levels are used as a factor in 
determining whether an individual is acting in a managerial or executive capacity, CIS must take 
into account the reasonable needs of the organization, in light of the overall purpose and stage of 
development of the organization. To establish that the reasonable needs of the organization 
justify the beneficiary's job duties, the petitioner must specifically articulate why those needs are 
reasonable in light of its overall purpose and stage of development. In the present matter, the 
petitioner has not explained how the reasonable needs of the petitioning enterprise justify the 
beneficiary's performance of non-managerial or non-executive duties, 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. 
The reasonable needs of the petitioner will not supersede the requirement that the beneficiary be 
"primarily" employed in a managerial or executive capacity as required by the statute. See 
sections 101(a)(44)(A) and (B) of the Act, 8 U.S.C. $ 1 101(a)(44). The reasonable needs of the 
petitioner may justify a beneficiary who allocates 51 percent of his duties to managerial or 
executive tasks as opposed to 90 percent, but those needs wi11 not excuse a beneficiary who 
spends the majority of his or her time on nonqualifying duties. 
Finally, the petitioner indicated that it plans to hire "at least three more individuals" in the future 
"to assist [the beneficiary] to move this new company forward." However, 8 C.F.R. 
6 214.2(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. In addition, 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 ofMichelin Tire Corp., 17 I&N Dec. 248 (Reg. Comm. 1978). If the business 
is not sufficiently operational afker one year, the petitioner is ineligible by regulation for an 
EAC 03 0 10 52407 
Page 8 
extension. In the instant matter, the petitioner has not reached the point that it can employ the 
beneficiary in a predominantly managerial or executive position. 
In sum, based on the record of proceeding, the beneficiary's job duties are principally composed 
of non-qualifying duties that preclude him from functioning in a primarily managerial or 
executive role. After careful consideration of the evidence, the AAO concludes that the 
beneficiary 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 petitioner has not established that it is eligible for an 
extension of the initial one-year "new office" validity period. As previously noted, the regulation 
at 8 C.F.R. 5 214,2(1)(14)(ii) provides strict evidentiary requirements that the petitioner must 
satisfy prior to the approval of this extension petition. Upon review, the petitioner has not 
satisfied all of the enumerated evidentiary requirements. The petitioner has not submitted 
evidence that the United States and foreign entities are still qualifying organizations as defined in 
8 C.F.R. 5 214.2(1)(l)(ii)(G). The petitioner has not submitted evidence that the United States 
entity has been doing business for the previous year as defined in 8 C.F.R. 214.2(1)(1)(ii)(H). 
Finally, the petitioner has not submitted evidence of the financial status of the United States 
operation. For all of these reasons, the petition may not be approved and the appeal will be 
dismissed. 
Another issue in this proceeding, also not raised by the director, is whether the petitioner has 
established that it has secured sufficient physical premises to house the new office. The petitioner 
has submitted a copy of its lease. The heading of the contract indicates a "Residential Lease." 
Although numbers four and five of the contract have been crossed out, there is no indication such 
as a notarized letter from the lessor that these terms have been disregarded. The terms expressly 
restrict the use of the premises exclusively as a "private single family residence" that may not be 
utilized for "the purpose of carrying on any business." Based on the insufficiency of the 
information hished, it cannot be concluded that the petitioner has secured sufficient space to 
house the new ofice. 
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 identifl 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. 8 1361. Here, that burden has not 
been met. Accordingly, the appeal will be dismissed. 
ORDER: The appeal is dismissed.