dismissed L-1A Case: Music

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prevent clr~rly unw arraned 
,,ion of personal privacy 
mIJc COPY 
U.S. Department of Homeland Security 
20 Massachusetts Ave., N.W.. Rm. A3042 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
FILE: EAC 03 0 12 50607 Office: VERMONT SERVICE CENTER Date: JllN 1 3 2005 
IN RE: 
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(15)(L) of the Immigration 
and Nationality Act, 8 U.S.C. 5 1 101 (a)(] 5)(L) 
ON 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. 
W' , obert P. Wiemann, Director 
Administrative Appeals Office 
'0 
EAC 03 012 50607 
Page 2 
DISCUSSION: The nonimmigrant visa petition was denied by the Director, Vermont 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 September 
ims to be a music event organizer. The petitioner claims to be a subsidiary of 
m located in Tel Aviv, Israel. The petitioner seeks to employ the beneficiary temporart y In 
United States as the president of its new office for a period of two years, at an annual salary of $45,000.00. 
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 managerial or executive capacity and that the 
entity would 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 executive capacity and that 
the organization will be able to support an executive position within one year of operation. 
To establish L-I eligibility under section 101(a)(15)(L) of the Immigration and Nationality Act (the Act), 
8 U.S.C. 5 1 10 1 (a)(15)(L), the petitioner must demonstrate that the beneficiary, within three years preceding 
the beneficiary's application for admission into the United States, has been employed abroad in a qualifying 
managerial or executive capacity, or in a capacity involving specialized knowledge, for one continuous year 
by a qualifying organization, and seeks to enter the United States temporarily in order to continue to render 
his or her 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. &j 2 14.2(1)( 1)(ii) states, in part: 
lntracompany trangeree means an alien who, within three years preceding the time of his or her 
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. 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 (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 with 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 
EAC 03 012 50607 
Page 3 
education, training, and employment qualifies himher to perform the intended serves 
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. 8 214.2(1)(3)(v) 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 (IXlXiiXB) or 
(C) of this section, supported by information regarding: 
(1) The proposed nature of the office describing the scope of the entity, its 
organizational structure, and its financial goals; 
(2) The size of the United States investment and the fi&cial ability of the 
foreign entity to remunerate the beneficiary and to commence doing 
business in the United States; and 
(3) The organizational structure ofthe 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. 
Section 10l(a)(44)(A) of the Act, 8 U.S.C. 5 1 101 (a)(44)(A), provides: 
The term "managerial capacity" means an assignment within an organization in which the 
employee primarily- 
(0 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 
EAC 03 0 12 50607 
Page 4 
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. 8 1 101 (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 10 l (aX44)(C) of the Act, 8 U.S.C. tj 1 10 1 (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 knction 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, as president of the U.S. entity, would manage all of its 
administrative and operational activities. In a letter of support, dated September 26, 2002, the petitioner 
stated the beneficiary would be responsible for overseeing the operational, financial, and managerial 
transactions of the U.S. entity. The petitioner further described the beneficiary's proposed duties as: 
Plans, develops, and establishes policies and objectives of business organization 
[sic]; 
Develops business objectives, to develop organizational policies to coordinate 
functions and operations, and to establish responsibilities and procedures for attaining 
objectives; 
EAC 03 0 12 50607 
Page 5 
Reviews activity reports and financial statements to determine progress and status in 
attaining objectives and revises objectives and plans in accordance with current 
conditions; 
Directs and coordinates formulation of financial programs to provide funding for new 
or continuing operations to maximize returns on investments, and to increase 
productivity; 
Gives work directions, resolves problems, prepares schedules, and sets deadlines to 
ensure timely completion of work; 
Monitors and analyzes costs and prepares budget; [and] 
a Initiates and authorizes employee hire, promotion, discharge, or transfer. 
In response to the director's request for evidence on this subject, the petitioner described the preliminary 
organization of the business. The petitioner further described how the U.S. company would be of a sufficient 
size to support a managerial or executive position within one year of operation by stating in part: 
Within one year of operations, [the beneficiary] plans to be relieved from performing the non- 
managerial, day to day [sic] operations of the business. . . . [The beneficiary] plans to hire and 
train three employees during the first year of operation, including a secretary, an event 
producer, and a marketing manager. The responsibilities of the additional employees will be 
such that [the beneficiary] will be relieved of the day-to-day duties of the organization. . . . 
The petitioner submitted a time schedule for the U.S. entity's development covering the years 2003 through 
2005. The petitioner also submitted a revised copy of the U.S. entity's business plan. In the plan, the 
petitioner described the job duties of the proposed employees to be hired during the entity's first business 
year. The descriptions are as follows: 
SECRETARY - "Operate the office: answer phone calls, book appointments, type letters, update the 
computer with the daily information, etc." 
EVENT PRODUCER - "Part time in the office and part time at event sites. Controlling the musicians, the 
sound technicians and other freelancers hired for the specific event which helshe is producing." 
MARKETING MANAGER - "Market study and analysis, preparation of advertising and sale[s] strategies, in 
charge of advertising, [and] in charge of all event sales for 2004: meeting with customers and connecting 
between them and the event producer." 
The petitioner also described the proposed job duties of the musicians and sound technicians. The petitioner 
submitted an organizational chart of the U.S. entity's hierarchy structure, which included the beneficiary as 
president, with a secretary, event producer, marketing manager, musicians, and freelance sound technicians 
under his direction. 
The director subsequently denied the petition. The director noted that the description of the job duties was 
vague and did not expound on the day-to-day activities of the beneficiary. The director further noted that the 
U.S. entity, as a music event planner with five to ten proposed employees, would not be able to realistically 
utilize the beneficiary as a manager within one year of operation. The director also noted that the petitioner's 
business plan did not clearly identify potential professional subordinates to relieve the beneficiary from 
performing non-qualifying duties. The director stated that with the size of the U.S. entity and the nature of its 
EAC 03 0 12 50607 
Page 6 
services, it did not appear that its organization would require the beneficiary to perform primarily executive or 
managerial duties. The director further stated that it appeared the beneficiary would be engaged primarily in 
non-managerial, day-to-day operations of the entity. 
On appeal, counsel disagrees with the director's decision and asserts the director applied an incorrect standard 
of proof to the beneficiary's proposed position, in that the managerial capacity standard was applied to an 
executive position. Counsel further asserts that the term president, as described in the company's business 
plan, will be the highest position within the hierarchy of the organization. Counsel reiterates the duty 
descriptions given in the letter of support, dated September 26, 2002, and claims that such duties clearly 
demonstrate the "president" directs the management of the organization, and that the beneficiary as president 
will be developing the business policies, objectives, and procedures for the organization. Counsel further 
contends the company's organizational chart coupled with its business plan demonstrates that the beneficiary 
will be the highest ranking employee of the company, and as such he will be given complete latitude to set the 
direction of the company, and will report only to the company's board of directors and stock holders. 
Counsel claims that the U.S. entity will be able to support an executive position within one year of operation 
and that this has been substantiated by the company's business plan, the letter submitted from Citibank 
demonstrating the company's financial viability, and other business documents submitted. 
The petitioner claims that the U.S. entity is a newly established music event planner business. 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-l nonirnmigrant 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. 5 214.2(1)(3)(v)(C). This 
evidence should demonstrate a realistic expectation that the 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 qua1 ifying duties. 
In the instant matter, the business plan submitted by the petitioner fails to detail accurate, realistic projections 
to establish that the U.S. entity will realize growth within one year. Although the business plan and 
organizational chart demonstrate that the U.S. entity intends to hire new employees, it has not provided 
detailed position descriptions to show how their positions will interrelate with that of the beneficiary, the 
percentage of time to be spent performing said duties, or that the positions are anything other than non- 
professional positions. Furthermore, neither the business plan nor the organizational chart depicts realistic 
projected dates of hire. 
The definitions of executive and managerial capacity have two parts. First, the petitioner must show that the 
beneficiary performs the high level responsibilities that are specified in the definitions. Second, the petitioner 
must prove that the beneficiary primarily performs these specified responsibilities and does not spend a 
majority of his or her time on day-to-day functions. Champion World, Inc. v. INS, 940 F.2d 1533 (Table), 
1991 WL 144470 (9th Cir. July 30, 1991). In this matter, counsel claims the beneficiary's duties will be 
primarily executive in nature. The beneficiary's duties are described in part as overseeing operational, 
financial, and managerial transactions, analyzing market conditions, discerning growth opportunities, 
managing musician's contracts, and analyzing international markets. This description is insufficient to show 
that the beneficiary will primarily perform qualifying executive duties rather than spending the majority of his 
EAC 03 01 2 50607 
Page 7 
time analyzing market conditions, marketing the organization's product and services, discerning growth 
opportunities, and managing musician's contracts. In the instant matter, the petitioner has provided no 
comprehensive description of the beneficiary's duties that would demonstrate that he will direct the management 
of the organization or a major component or function of the organization, establish goals and policies, exercise a 
wide latitude in discretionary decision-making, or that he would receive only general supervision or direction 
from higher level individuals. Matter of Treasure CraJ of California, 14 I&N Dec. 190 (Reg. Comm. 1972). 
Paraphrasing the regulations as a substitute for a day-to-day description of the beneficiary's job duties is 
insufficient to demonstrate the beneficiary is acting in an executive or managerial capacity. Fedin Bros. Co., Ltd. 
v. Sava, 724 F.Supp. 11 03, 1 108 (E.D.N.Y. 1989), aff'd, 905 F.2d 41 (2d Cir. 1990); Avyr Associates, Inc. v. 
Meissner, 1977 WL 188942 at *5 (S.D.N.Y.). The actual duties themselves reveal the true nature of the 
employment. Fedin Bros. Co., Ltd, supra. There has been no evidence presented to demonstrate what goals 
and policies have been and will be established by the beneficiary in his capacity. 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, supra. 
Based on the current record, the AAO is unable to determine whether the claimed executive duties constitute 
the majority of the beneficiary's duties, or whether the beneficiary will primarily perform non-qualifying, 
administrative, or operational duties. See Republic of Transkei v. INS, 923 F.2d 175, 177 (D.C. Cir. 1991). 
The petitioner lists the beneficiary's duties as including both administrative and operational tasks, but fails to 
quantify the time the beneficiary will spend on them. This failure of documentation is important because 
several of the beneficiary's daily tasks, such as sales, marketing, and administration do not fall directly under 
traditional managerial duties as defined in the statute. For this reason, the AAO cannot determine whether the 
beneficiary will be primarily performing the duties of a function manager. See IKEA US, Inc. v. U.S. Dept. of 
Justice, 48 F. Supp. 2d 22,24 (D.D.C. 1999). 
On review, the petitioner has provided a vague and nonspecific description of the beneficiary's duties that 
fails to demonstrate what the beneficiary does on a day-to-day basis. For example, the petitioner states that 
the beneficiary's duties will consist of marketing the company's product and services, managing music 
contracts, and performing administrative tasks. The petitioner did not, however definitively define the 
marketing and administrative tasks to be performed by the beneficiary. 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, id. at 190. 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. Sava, supra. 
Although the petitioner asserts that the beneficiary will be managing a subordinate staff, in that he will be 
managing the business operation, the record does not establish that the subordinate staff will be composed of 
supervisory, professional, or managerial employees. See section 101(a)(44)(A)(ii) of the Act. In this matter 
the subordinates are described as secretary, even producer, marketing manager, musicians, and sound 
technicians. 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 
lOl(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. 
Based upon the evidence presented, the petitioner has failed to demonstrate that the beneficiary will be 
employed primarily in an executive capacity or that the U.S. entity will be able to support such a position 
within one year of operation. Further, the petitioner has failed to submit evidence rebutting the director's 
EAC 03 0 1 2 50607 
Page 8 
denial based on the absence of evidence to demonstrate that the beneficiary would be employed in a 
managerial capacity. Accordingly, the appeal will be dismissed. 
Beyond the decision of the director, the minimal documentation of the foreign entity's business operations 
raises the issue of whether the foreign entity will continue to be engaged in the regular, systematic, and 
continuous provision of goods and/or services pursuant to 8 C.F.R. tj 214.2(1)(l)(ii)(G)(2) during the 
beneficiary's stay in the United States. The petitioner indicated that the beneficiary and his partner were the 
majority owners of the foreign entity. There is nothing in the record to indicate that the foreign entity will 
continue doing business in the absence of a majority owner. For this additional reason, the petition may not 
be approved. 
Another issue in this proceeding, also not raised by the director, is whether the employment offered to the 
beneficiary is temporary. Generally, the petitioner for an L-1 nonimmigrant classification need submit only a 
simple statement of facts and a listing of dates to demonstrate the intent to employ the beneficiary in the 
United States temporarily. However, where the beneficiary is claimed to be the owner or a major stockholder 
of the petitioning company, a greater degree of proof is required, Matter of lsovic, 18 I&N Dec. 361 (Comm. 
1982); see also 8 C.F.R. tj 214.2(1)(3)(vii). In the instant matter, the petitioner indicated that the beneficiary is 
a major stockholder of the foreign entity. If this fact is established, it remains to be determined that the 
beneficiary's services are for a temporary period. The regulation at 8 C.F.R. 8 2 14.2(1)(3)(vii) states that if the 
beneficiary is an owner or major stockholder of the company, the petition must be accompanied by evidence 
that the beneficiary's services are to be used for a temporary period and that the beneficiary will be transferred 
to an assignment abroad upon the completion of the temporary services in the United States. In the absence 
of persuasive evidence, it cannot be concluded that the beneficiary's services are to be used temporarily or that 
he will be transferred to an assignment abroad upon completion of his services in the United States. 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.