dismissed L-1A Case: Nursing Services

U.S. Department of Homeland Security 
20 Massachusetts Ave , NW, Rm A3042 
Wash~ngton. DC 20529 
File: WAC-03- 166-50298 Office: CALIFORNIA SERVICE CENTER Date: 
Petition: Petition for a Nonimmigrant Worker Pursuant to Section 10 1 (a)( ! 5)(L) of the Immigration 
and Nationality Act, 8 U.S.C. 3 1 10 1 (a)(] 5)(L) 
IN BEHAL,F OF PETITIONER: 
SELF-REPRESENTED 
INSTRUCTIONS: 
This is the decisio~~ 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. Wiemanrl, Director 
ir 
dministrative Appeals Office 
WAC-03-1 66-50298 
Page 2 
DISCUSSION: The Director, California Service Center, denied the petition for a nonimmigrant visa. The 
matter is now before the Administrative Appeals Office (AAO) on appeal. The AAO will dismiss the appeal. 
The petitioner filed this nonimmigrant petition seeking to employee the beneficiary as its General Manager as 
an L- I 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), in order to open a new office in the United States. The 
petitioner is a corporation organized in the State of Nevada that intends to operate as a provider of nursing 
services. The petitioner claims that it is the subsidiary of Flores Photocopier Services Philippines, located in 
Davao City, Philippines. 
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 within one year. 
The petitioner subsequently filed an appeal. The director declined to treat the appeal as a motion and 
forwarded the appeal to the AAO for review. On appeal, counsel for the petitioner asserts that the beneficiary 
will perform exclusively managerial and executive functions in the United States. In support of this assertion, 
the petitioner submits an attachment to Form I-290B, additional evidence, and previously submitted 
documents. 
To establish eligibility for the L-1 nonimmigrant visa classification, the petitioner must meet the criteria 
outlined in section 101 (a)(] 5)(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 acd the organization which employed or will employ the 
alien are qualifying organizations as defined in paragraph (I)(] )(ii)(G) of this section. 
(ii) Evidence that the allen will be employed in an executive, managerial, or specialized 
knowledge capacity, including a detaiied description of the services to be performed. 
(iii) Evidence that the alien has at least one continuous year of full time employment 
abroad with a qualifying organization within the three years preceding the filing of 
the petition. 
(iv) Evidence that the alien's prior year of employment abroad was in a position that was 
managerial, executive or involved specialized knowledge and that the alien's prior 
education, training, and employment qualifies himlher to perform the intended 
WAC-03-1 66-50298 
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services in the United States; however, the work in the United States need not be the 
same work which the alien performed abroad. 
(v) 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 (l)(l)(ii)(B) or (C) of this section, supported by information 
regarding: 
(I) 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 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 the present matter is whether the beneficiary will be employed by the United States entity in a 
primarily managerial or executive capacity within one year. 
Section 10 1 (a)(44)(A) of the Act, 8 U.S.C. I 1 Cl(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 
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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 10 1 (a)(44)(B) of the Act, 8 U.S.C. 5 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 the initial petition filed on May 7, 2003, on Form 1-129 the petitioner described the beneficiary's 
prospective job duties as follows: 
To set up company in U.S[.]: Over-all [sic] management of company; in-charge [sic] of 
development market; develop; train & hire staff; institute marketing & management strategies 
compatible with parent company promote or otherwise secure products for and on behalf of 
parent company; search new productslequipment in U.S. with potential market parent 
company in the Philippines 
On June 25,2603, the director requested extensive additional evidence. In part, the director requested: (1) an 
indication of the proposed number of employees in the United States and the types of positions they will hold; 
and (2) an explanation of how the beneficiary will, within one year, be employed in a primarily managerial or 
executive capacity. 
Iil a response dated August 4, 2003, the petitioner submitted: (1) a letter providing the petitioner's staffing 
plans; (2) a business plan; and (3) a letter from the foreign entity providing a prospective job description for 
the beneficiary as follows: 
[The beneficiary] will fill the position of Manager of [the petitioner] in the United States 
branch office. [Tlhis position is a key managerial one for the new office because it will be 
her responsibility to organize and start the new business. This position requires her to: (1) 
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Hire and train, initially, three employees. Since [the beneficiary] will be coming to the U.S. 
to start up the business, there are no employees as of now. However, it is anticipated that 
there will be at least 3 of these persons to be employed (either a U.S. citizen or permanent 
resident) within the first year of operation and who will eventually run the business after [the 
beneficiary] completes her assignment. (2) Promote, develop, and expand the market reach 
of the Philippine company goods. (3) Develop and establish marketing plans, Administrative 
and Financial policies and procedures, importlexport operating procedures and oversee the 
proper administration and execution of such policies. (4) Manage and oversee the shipping, 
distribution and control of products from the Philippines to the U.S. and vice versa. 
She will exercise a wide latitude in decision making in the day to day operations of the 
business. She must spend a majority of her time coordinating the various responsibilities and 
managing her staff. Strong managerial and organizational skills are needed for the important 
functions performed by the Manager of a new business [in the] U.S. [The beneficiary] will 
report directly to [the proprietor of the petitioner] for approval of major plans. 
We propose to transfer [the beneficiary] to the United States for a temporary period of one 
year at an annual salary of $2 1,000.00 plus $500.00 per month as housing allowance . . . . 
The petitioner's staffing plan states the following: 
1. [The beneficiary] 
General Manager 
Brief Job Duties: [The beneficiary] will be responsible for the overall operation of [the 
petitioner]. She will have the final say in hiring and firing of employees. She will supervise 
directly the Marketing Manager, Home Care Facility Administrator, Nurses, Nursing 
assistants, Care givers, and the Cashier of the entity. 
Under [the beneficiary] are the following prospective employees: 
2. S Citizen, Administrator, wages $39.00/hour: Hiring Date 
Administrator 
Brief Job ~uties:ill be responsible for the management and caring for the 
patients of the facility. 
3. - 
.S. Citizen, wages $12/hour; Hiring date is upon approval 
Caregiver 
WAC-03-1 66-50298 
Page 6 
ill be in charge of all marketing plans and programs subject 
to final approval of the General Manager. She will deal extensively with patients and clients. 
She will supervise the daily activities of the patients. 
4. - US Citizen, Caregiver, Wages GI Zihour; 
Hiring date is upon approval of Ll Visa. 
Brief Job Duties: To take care of patients by bathing and giving personal care and also 
assisting in daily routine. Night shift Nursing Assistant 
Hiring Date is upon approval of L1 Visa. 
Brief Job Duties: Assisting the patient in and out of wheel chair and meal preparation. Day 
shift Nursing assistant. 
In the business plan, the petitioner stated that the beneficiary completed a bachelor's degree in sociology and 
an associate degree in "Nursing Aide and Caregiver." The petitioner stated that the beneficiary is "well 
trained as [a] medical provider and caregiver." The business plan further provides that "[tlhe purpose of [the 
petitioner] is to provide certified nurse aids, companions and homemakers to assist the elderly in their daily 
living activities . . . ." 
On January 22, 2004, the director denied the petition. The director determined that the petitioner did not 
establish that the beneficiary will be employed in the United States in a primarily managerial or executive 
capacity within one year. Specifically, the director stated the following: 
Although the petitioner has stated that the beneficiary will be supervising local management 
personnel, at the end of the one-year period, the description of duties indicates that the 
beneficiary will be performing more as a care giver than as an executive manager. As such, 
substantially all of the beneficiary's duties are not at the executive or managerial level. 
Instead, the beneficiary is involved with all of the day-to-day duties of a caregiver, rather than 
directing activities through executives or managers, or other professionals. 
On appeal, counsel for the petitioner asserts that the beneficiary will perform exclusively managerial and 
executive functions in the United States. In an attachment to Form I-290B, counsel further describes the 
beneficiary's duties as follows: 
The beneficiary is expected to manage and direct the following managers: 
1. Marketing Manager 
2. Home Care Facility Administrator 
3. Chief Cashier 
WAC-03- 166-50298 
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These are subordinate staff of professional, managerial or supervisory personnel who, in turn, 
will manage and handle the day-to-day affairs of their respective departments and make direct 
contacts with the bottom tier employees. The beneficiary was hired not to provide day-to-day 
services to the clients but as a manger who will have the over-all [sic] management and 
administration of the business and to coordinate the various needs and activities of the 
component departments so that each of them will function efficiently and in harmony with 
the ultimate goal of making the home care facility a profitable and highly competitive 
business enterprise. 
Going to more specifics nurses nursing assistants and care givers will have to report and 
deal directly withhe Home Care Facility Administrator. [The Home 
Care Facility Administrator], in turn, will be solely 
efficient operations of the entire facility. The 
for their implementation. 
initiate the formulation 
before the beneficiary. 
disbursements will have the exclusive authority in planning and implementing safeguards and 
procedures to guarantee the financial success of the company. The Chief Cashier will 
likewise be accountable to the beneficiary. 
The petitioner provided an employment contract for the beneficiary which discussks her duties, and states that 
she "will be required to work a minimum of forty hours a week under a flexible time schedule to be approved 
by [her] superior." The contract provides that the beneficiary "will receive a weekly compensation of 
$450.00," and she "will be provided also with free room and board." The contract notes that the beneficiary 
"will supervise directly the following prospective employees: a) General Manager b) Marketing Manager 
c] Operating Manager d) Cashier e) Registered Nurse f) Certifide [sic] Nursing Assistant and Care Givers." 
Upon review, counsel's assertions are not persuasive. 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. 
§ 2142()(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 will be primarily employed in a 
managerial or executive capacity. A beneficiary may not claim to be employed as a hybrid 
"executive/manager" and rely on partial sections of the two statutory definitions. 
In the instant case, the petitioner asserts that the beneficiary will be primarily engaged in both managerial 
duties and executive duties within one year. To sustain such an assertion, the petitioner must establish that 
the beneficiary will meet each of the four criteria set forth in the statutory definition for executive duties 
under section 101(a)(44)(B) of the Act, and the statutory definition for managerial duties under section 
101(a)(44)(A) of the Act. At a minimum, the petitioner must establish that the beneficiary will be primarily 
employed in one or the other capacity. See 8 C.F.R. 3 2 14.2(1)(3)(ii). 
WAC-03- 166-50298 
Page 8 
The prospective job descriptions submitted by the petitioner are brief and vague, providing little insight into 
the true nature of the tasks the beneficiary will perform in the United States. For example, the petitioner 
states that the beneficiary will "[plromote, develop, and expand the market reach of the Philippine company 
goods" and "[mlanage and oversee the shipping, distribution and control of products from the Philippines to 
the U.S. and vice versa." Yet, the petitioner has not described any goods of the foreign entity, and as a small 
company providing copying services, it is unclear what products it offers that are transferable to the United 
States. Thus, the above statements do not reflect what the beneficiary will do on a daily basis. The petitioner 
indicates that the beneficiary will "exercise a wide latitude in decision making in the day to day operations of 
the business," and she will "spend a majority of her time coordinating the various responsibilities and 
managing her staff." However, these general statements provide no clear understanding of what actual tasks 
the beneficiary will perform. Specifics are clearly an important indication of whether a beneficiary's duties 
will be 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), aff'd, 
905 F.2d 41 (2d. Cir. 1990). The actual duties themselves reveal the true nature of the employment. Id. The 
provided job descriptions do not allow the AAO to determine the actual tasks that the beneficiary will 
perform, such that they can be classified as managerial or executive in nature. 
Further, upon examining the evidence of record, the petitioner's assertion that "[the beneficiary] will be 
responsible for the overall operation of [the petitioner]" is questionable. The record presents conflicting 
evidence regarding who. in fact, will manage the petitioner's operations. The petitioner states that the 
beneficiary will hold the position of general manager. The beneficiary's employment contract notes that the 
beneficiary "will supervise directly" a general manager, a marketing manager, an operating manager, a 
cashier. a registered nurse, and a certified nursing assistant and care givers. The petitioner also indicates that 
it employs an administrator. The petitioner provides that the administrator "will be responsible for the 
management and caring for the patients of the facility," and that "nurses, nursing assistants and care givers 
will have to report and deal directly with [the administrator]." Thus, the petitioner presents conflicting 
information regarding who the petitioner's employees report to. It is incumbent upon the petitioner to resolve 
any inconsistencies in the record by independent objective evidence. Any attempt to explain or reconcile such 
inconsistencies will not suffice unless the petitioner submits competent objective evidence pointing to where 
the truth lies. Matter of Ho, 19 I&N Dec. 582, 591-92 (BIA 1988). Doubt cast on any aspect of the 
petitioner's proof may, of course, lead to a reevaluation of the reliability and sufficiency of the remaining 
evidence offered in support of the visa petition. Malter ofHo, 19 I&N Dec. 582, 591 (BIA 1988). 
The record contains further evidence to suggest that the administrator the true manager of 
the petitioner's operations. For example, the administrator signed all official documents in the file, including 
the Form 1-1 29 petition on behalf of the beneficiary, the petitioner's fictitious name statement, the petitioner's 
California certificate of qualification, the petitioner's Nevada articles of incorporation, and the employment 
contract offering the beneficiary a position with the petitioner. Additionally, the evidence of record reflects 
that the administrator owns the property in which the petitioner intends to do business, and that the 
administrator leased the property to the petitioner. The petitioner's hiring plan reflects that the administrator 
is to be paid $39 per hour. The petitioner has provided inconsistent information regarding the compensation 
of the beneficiary. However, at most, the petitioner indicates that the beneficiary will be paid $21,000 per 
year for forty or more hours per week, which equals approximately $10 per hour. Thus, the administrator will 
WAC-03-1 66-50298 
Page 9 
be paid approximately four times that provided to the beneficiary. The beneficiary's employment contract 
indicates that the beneficiary's work schedule is to be approved by her superior, yet the petitioner has not 
indicated who the beneficiary's superior is. It is presumed that the beneficiary's superior is the administrator. 
The petitioner's claim that the administrator reports to the beneficiary, and that the beneficiary will have 
ultimate authority over the petitioner's operations, is unpersuasive. 
It is further noted that the beneficiary's compensation of approximately $10 per hour is the lowest among any 
of the petitioner's proposed employees. The petitioner's hiring plan indicates that it intends to pay two care 
givers $12 per hour and a certified nursing assistant $18 per hour. The petitioner's business plan states that 
the beneficiary completed a bachelor's degree in sociology and an associate degree in "Nursing Aide and 
Caregiver." The petitioner stated that the beneficiary is "well trained as [a] medical provider and caregiver." 
Again, the petitioner's business plan provides that "[tlhe purpose of [the petitioner] is to provide certified 
nurse aids, companions and homemakers to assist the elderly in their daily living activities . . . ." As the 
beneficiary is a trained nursing aide and caregiver, and she will be the lowest paid employee in the petitioner's 
operation, the evidence of record suggests that she will be primarily engaged with non-managerial and non- 
executive care giving duties. These duties are necessary to provide the petitioner's services. 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 petitioner alleges that the beneficiary will supervise subordinate employees. Yet, as discussed above, it is 
doubtful that the beneficiary will possess managerial authority. If CIS hils to believe that a fact stated in the 
petition is true, CIS may reject that fact. Section 204(b) of the Act, 8 U.S.C. § 11 54(b); see also Anetekhui v. 
P.N.S., 876 F.2d 1218, 1220 (5th Cir.1989); Lu-Ann Bakery Shop, Ir~c. v. Nelson, 705 F. Supp. 7, 10 
(D.D.C.1988); Systronics Corp. v. INS, 153 F. Supp. 2d 7, 15 (D.D.C. 2001 ). Further, the petitioner has 
submitted inconsistent information regarding who the beneficiary's proposed subordinates would be. The 
petitioner's hiring plan submitted in response to the director's request for evidence provides that the 
beneficiary will oversee an administrator, two caregivers, and a certified nursing assistant. However, in the 
petitioner's statement submitted on appeal, it now asserts that the beneficiary will supervise a marketing 
manager, a home care facility administrator, and a chief cashier. In the beneficiary's employment contract 
submitted on appeal, the petitioner indicates that the beneficiary will directly supervise a general manager, a 
rnarketing manager, an operating manager, a cashier, a registered nurse, a certified nursing assistant, and - - - - - 
caregivers. Further, on appeal, the petitioner now states that ill serve as the marketing 
nlanager, yet she was identified as a caregiver in the mitted in response to the 
director's request for evidence. Again, it is incumbent upon the petitioner to resolve any inconsistencies in the 
record by independent objective evidence. Any attempt to explain or reconcile such inconsistencies will not 
suffice unless the petitioner submits competent objective evidence pointing to where the truth lies. Mutter of 
Ho, 19 I&N Dec. at 591 -92. 
These changes in the beneficiary's proposed supervisory responsibilities represent material changes on appeal. 
On appeal, a petitioner cannot offer a new position to the beneficiary, or materially change a position's title, 
its level of authority within the organizational hierarchy, or the associated job responsibilities. The petitioner 
must establish that the position offered to the beneficiary when the petition was filed merits classification as a 
WAC-03-1 66-50298 
Page 10 
managerial or executive position. Matter of Michelin Tire Corp., 17 I&N Dec. 248, 249 (Reg. Comm. 1978). 
A petitioner may not make material changes to a petition in an effort to make a deficient petition conform to 
CIS requirements. See Matter of lzummi, 22 I&N Dec. 169, 176 (Assoc. Comm. 1998). 
Based on the foregoing, the petitioner has failed to establish that the beneficiary will be employed in the 
United States in a primarily managerial or executive capacity within one year. See 8 C.F.R. 
5 2 14,2(1)(3)(v)(B). For this reason, the appeal will be dismissed. 
Beyond the decision of the director, counsel has not established that the beneficiary was employed abroad in a 
primarily managerial or executive capacity as required by the regulation at 8 C.F.R. 5 214.2(1)(3)(v)(B). The 
petitioner provided a document titled "Certificate of Employment" that describes the beneficiary's duties 
abroad. Yet, the foreign job description is brief and vague, providing little insight into the true nature of the 
tasks the beneficiary performed with her employer abroad. Again, 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, 724 F. 
Supp. 1103 (E.D.N.Y. 1989), afd, 905 F.2d 41 (2d. Cir. 1990). The actual duties themselves reveal the true 
nature of the employment. Id. The provided job description does not allow the AAO to determine the actual 
tasks that the beneficiary performed, such that they can be classified as managerial or executive in nature. For 
this additional reason, the appeal will be dismissed. 
Also beyond the decision of the director, the record reflects that the U.S. entity did not secure a commercial 
lease until September 1, 2003, nearly four months after the petition was filed. The regulation at 8 C.F.R. 
9 2 14.2(1)(3)(v)(A) requires a petitioner that seeks to open a new office to submit evidence that it has acquired 
sufficient physical premises to commence doing business. For this additional reason, the appeal will be 
dismissed. 
Also beyond the decision of the director, the petitioner has failed to submit evidence to show "[tlhe 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," as required by 8 C.F.R. 8 214.2(1)(3)(v)(C)(2). For this 
additional reason, the appeal will be dismissed. 
Also beyond the decision of the director, the petitioner has not established that it has a qualifying relationship 
with the beneficiary's foreign employer as required by 8 C.F.R. €j 214.2(1)(l)(ii)(G). On the initial petition, 
the petitioner indicated that it is the subsidiary of the beneficiary's foreign employer. The petitioner 
submitted a copy of a stock certificate that reflects that the foreign entity acquired a majority icterest in the 
petitioner on September 9, 2003. However, as the petition was filed four months earlier on May 7, 2003, this 
stock certificate is not evidence of the petitioner's relationship to the foreign entity as of the filing date. The 
fact that the petitioner's relationship to the foreign entity changed after filing calls into question what 
relationship the two entities had on the filing date. For this additional reason, the appeal will be dismissed. 
An application or petition that fails to comply with the technical requirements of the law may be denied by 
the AAO even if the Service Center does not identify all of the grounds for denial in the initial decision. See 
Spencer Enterprises, Inc. v. UnitedStates, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 20011, afyd. 345 F.3d 683 
WAC-03-166-50298 
Page 11 
(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 29 1 of the Act, 8 U.S.C. 5 136 1. Here, that burden has not been met. 
ORDER: The appeal is dismissed.