dismissed L-1A Case: Office Equipment Sales And Service

U.S. Department of Homeland Security 
20 Mass. Ave.. N.W .. Rm. 3000 
identifying data deleted m 
prevent clearly unmted 
invasion of penonal privac) 
Washington. DC 20529 
U.S. Citizenship 
and Immigration 
PUBLIC COPY 
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FILE: SRC 02 188 50052 Office: TEXAS SERVICE CENTER Date: 
JUN 0 5 2007 
IN RE: Petitioner: 
Beneficiary: 
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)(15)(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. 
/-I / 
;ifiLii, obert P. &dk iemann, Chief 
Administrative Appeals Office 
SRC 02 188 50052 
Page 2 
DISCUSSION: The Director, Texas 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 the instant nonimmigrant petition seeking to employ the beneficiary as an L-1A 
nonimmigrant intracompany transferee pursuant to section 101(a)(15)(L) of the Immigration and Nationality 
Act (the Act), 8 U.S.C. 5 1101(a)(15)(L). The petitioner is a corporation organized under the laws of the 
State of Florida that is engaged in the sale and servicing of office equipment. It claims to be the subsidiary of 
t 
, located in Peru. The petitioner seeks to temporarily employ the beneficiary as its general 
manager or a one-year term. 
The director denied the petition concluding that the petitioner had not demonstrated that the beneficiary had 
been employed by the foreign entity in a primarily managerial or executive capacity. The director also 
observed that the petitioner had not provided documentary evidence that the foreign entity funded the United 
States operation. 
Counsel for the petitioner subsequently filed an appeal. The director declined to treat the appeal as a motion, 
and forwarded it to the AAO for review. On appeal, counsel for the petitioner contends that United States 
Citizenship and Immigration Services (USCIS) "failed to give evidence proper weight and incorrectly applied 
existing regulations." Counsel submits an appellate brief in support of the claim that the beneficiary had been 
employed by the foreign entity in a primarily executive capacity. 
To establish L-1 eligibility, the petitioner must meet the criteria outlined in section 101(a)(15)(L) of the 
Immigration and Nationality Act (the Act), 8 U.S.C. 5 1 101(a)(15)(L). Specifically, within three years 
preceding the beneficiary's application for admission into the United States, 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. 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. 3 214.2(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 (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. 
(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 
SRC 02 188 50052 
Page 3 
services in the United States; however, the work in the United States need not be the 
same work which the alien performed abroad. 
The regulation at 8 C.F.R. $ 2 14.2(1)(3)(v) further states that if the beneficiary is coming to the United States 
as a manager or executive to open or to be employed in a "new office," 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: 
(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 this proceeding is whether the beneficiary was employed by the foreign entity in a primarily 
managerial or executive capacity. 
Section 101 (a)(44)(A) 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, 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) 
 Has the authority to hire and fire or recommend those as well as other personnel actions 
(such as promotion and leave authorization) if another employee or other employees are directly 
supervised; if no other employee is directly supervised, functions at a senior level within the 
organizational hierarchy or with respect to the function managed; and 
SRC 02 188 50052 
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(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. § 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. 
The petitioner filed the instant petition on May 3 1, 2002. On the appended L Classification Supplement, the 
beneficiary's former position with the foreign entity was identified as "accountant," during which she was 
responsible for: "preparing and reconcil[ing] accounts, analyzing all budget, cash flow, revenue[,] general 
ledger and general administrative functions." In the attached documentation, the petitioner submitted a letter 
from the foreign entity, dated May 28, 2002, in which the beneficiary was identified as formerly occupying 
the "executive" position of accountant specialist, during which she was responsible for the following tasks: 
Bookkeeping 
Accounting decisions 
Financial reports and statements 
Payable accounts, receivable accounts and account reconciliation 
General ledger 
Journal entries 
Counsel for the petitioner submitted an organizational chart of the foreign entity, depicting the beneficiary as 
overseeing the foreign company's accounting and finance office. While counsel referenced an appended 
payroll list of the foreign corporation, the beneficiary is the sole employee identified on the submitted form. 
The director issued a request for evidence on June 10, 2002 directing the petitioner to submit evidence that 
the beneficiary was employed by the foreign entity in a qualifying managerial or executive position. The 
director observed that the May 29, 2002 letter identified the beneficiary as an accountant, and noted that the 
record did not suggest that the beneficiary managed any subordinate employees, "but rather performed the 
functions of an accountant." 
SRC 02 188 50052 
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Counsel for the petitioner responded in a letter dated August 26, 2002. As evidence that the beneficiary was 
employed as a manager or executive of the foreign entity, counsel submitted a second letter from the foreign 
entity, dated June 30, 2002, certifying that the beneficiary "was employed at our company from May 1, 1999 
to May 31, 2000 as a General Executive Controller." 
 The foreign entity's president stated that the 
beneficiary's "principal function was to manage the investments and had [sic] under her control the whole 
accounting department of our company, managing a staff between executives and attendees, she was also 
responsible [for] all [tlhe financial aspects of the company." 
In a September 11, 2002 decision, the director concluded that the petitioner had not established that the 
beneficiary had been employed by the foreign entity in a primarily managerial or executive capacity. The 
director noted inconsistencies in the foreign entity's two letters with respect to the beneficiary's former 
overseas employment. The director observed that the job descriptions in the two letters "are vastly different," 
and stated that the foreign entity appeared to be enhancing the beneficiary's job titles and responsibilities in its 
latter letter. The director found that the beneficiary was not managing professionals, and ultimately 
concluded that the beneficiary had not been employed by the foreign entity in a primarily managerial or 
executive capacity. 
On appeal, counsel for the petitioner challenges the director's review of the two letters submitted by the 
foreign entity, claiming that the job duties outlined in each letter are not conflicting. Counsel notes the 
existence of different cultural implications with respect to "professional occupational titles," and states that 
while the beneficiary held the title of account specialist in the foreign entity, "the record reflects that the 
actual duties performed make the position the U.S. equivalent of a Corporate Controller, a clearly executive- 
level position." 
Counsel contends that the second letter offered by the foreign entity "does not refute the prior statement[s] but 
asserts that although [the beneficiary] performs accounting functions, her area of responsibility includes the 
overall fiscal operation of the organization." Counsel claims that a review of the record as a whole, rather 
than focusing only on the beneficiary's former position title, indicates "that the position [was] in fact 
executive level as the term is defined in [the Act]." Counsel states that as the "head" of the accounting and 
financial office, the beneficiary: oversaw the organization's financial and accounting functions; "made all 
financial decisions;" analyzed financial records in order to determine the fiscal policy; and reported to the 
director of the foreign company. Counsel submits a translated organizational chart of the foreign entity 
identifying the beneficiary as overseeing the company's accounting and payroll functions. The chart did not 
depict the presence of workers employed subordinate to the beneficiary. 
Upon review, the petitioner has not established that the beneficiary had been employed by the foreign 
organization in a primarily managerial or executive capacity. 
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. 
 2 14.2(1)(3)(ii). 
Here, the job description originally offered by the petitioner demonstrates that as the foreign entity's 
accountant specialist, the beneficiary was personally responsible for performing all non-managerial and non- 
executive tasks related to its accounting and finance functions. Counsel acknowledges on appeal the 
beneficiary's prior performance of the foreign organization's non-qualifying accounting and financial 
functions, stating that while the beneficiary was responsible for the organization's fiscal operation, she had 
SRC 02 188 50052 
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personally performed accounting functions of the accounting and financial department. Although the foreign 
entity claims the existence of a subordinate staff of "executives and attendees," the record is devoid of 
evidence demonstrating that the beneficiary was relieved from performing the company's bookkeeping or 
from preparing its financial statements, reports, accounts payable and receivable, general ledger, and journal 
entries, tasks that are not considered to be managerial or executive in nature. See $5 101 (a)(44)(A) and (B) of 
the Act. 
The AAO notes that none of the organizational charts submitted of the foreign entity, including the translated 
diagram submitted on appeal, depict any lower-level workers employed in the accounting or finance 
department; nor did the foreign entity provide payroll documentation for anyone but 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 Soffici, 22 I&N Dec. 158, 165 (Comm. 1998) (citing Matter of 
Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm. 1972)). If CIS fails to believe that a fact stated 
in the petition is true, CIS may reject that fact. See e.g. Anetekhai v. I.N.S., 876 F.2d 1218, 1220 (5th 
Cir. 1989); Lu-Ann Bakery Shop, Znc. 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). As a result, the petitioner has failed to demonstrate that employees 
other than the beneficiary were responsible for performing the foreign entity's non-qualifying accounting and 
financial functions. 
Counsel's additional claims on appeal that the beneficiary "directed" the accounting and financial functions 
are not supported by the record. As evidence, counsel references a June 3, 2002 letter from the foreign 
company's president, which the AAO notes, is not contained in the present record. It is not clear whether 
counsel intended to instead cite the previously submitted June 30, 2002 letter. Regardless, the brief letter, 
which states only that the beneficiary controlled the accounting department, managed a subordinate staff, and 
held responsibility "for all [tlhe financial aspects of the company," falls significantly short of demonstrating 
that the beneficiary was primarily directing the financial and accounting functions of the foreign organization. 
As addressed previously, despite the petitioner's references to subordinate employees in the financial and 
accounting department, there is no evidence that the beneficiary was directing rather than personally 
performing the associated tasks. As a result, counsel's claim remains unsupported by the present record. The 
unsupported statements of counsel on appeal or in a motion are not evidence and thus are not entitled to any 
evidentiary weight. See INS v. Phinpathya, 464 U.S. 1 83, 1 88-89 n.6 (1 984); Matter of Ramirez-Sanchez, 17 
I&N Dec. 503 (BIA 1980). 
As observed by the director, the foreign entity's June 30, 2002 letter, submitted after the director called 
attention to the beneficiary's non-qualifying responsibilities, appears to alter the beneficiary's former position 
in order to satisfy the statutory definitions of "managerial capacity" or "executive capacity." 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 Zzummi, 22 I&N Dec. 169, 176 (Assoc. Comm. 1998). Moreover, the petitioner has not 
clarified the foreign entity's conflicting references to the different job titles assigned to the beneficiary's 
former position. Counsel's suggestion on appeal as to cultural discrepancies in the beneficiary's job title does 
not explain the true position formerly held by the beneficiary. Also, contrary to counsel's claim, there is no 
evidence that either position, accountant specialist or general executive controller, may be deemed as being 
equivalent to a corporate controller employed in the United States, which counsel states is "a clearly 
executive-level position." Without documentary evidence to support the claim, the assertions of counsel will 
not satisfy the petitioner's burden of proof. The unsupported assertions of counsel do not constitute evidence. 
SRC 02 188 50052 
Page 7 
Matter of Obaigbena, 19 I&N Dec. 533, 534 (BIA 1988); Matter of Laureano, 19 I&N Dec. 1 (BIA 1983); 
Matter of Ramirez-Sanchez, 1 7 I&N Dec. 503, 506 (BIA 1980). 
Absent documentary evidence demonstrating the beneficiary's executive authority over a subordinate staff 
who relieved her from performing the tasks related to the foreign organization's accounting and financial 
functions, the record fails to corroborate the petitioner's claim that the beneficiary was employed in a 
primarily executive capacity. Accordingly, the appeal will be dismissed. 
The director also observed in her September 11, 2002 decision that the petitioner had not provided 
documentary evidence that it had been sufficiently funded by the foreign entity. The director recognized that 
the petitioner had received a wire transfer of $5,000 from the foreign entity on July 16, 2002, but noted that 
this transfer was insufficient to establish the funding of the United States organization. 
On appeal, counsel challenges the director's finding, stating that the regulations only require that the intended 
United States operation be able to support the beneficiary in a managerial or executive position within one 
year of the petition's approval. Counsel references the petitioner's five-year business plan provided for the 
director's review as evidence that the petitioner will be able to employ the beneficiary as a manager or 
executive. Counsel states that "the funds necessary for [the] operation [of the petitioning entity] will be 
advanced by the foreign company as needed." 
The director's suggestion that the petitioner demonstrate an unspecified amount of funding on the part of the 
foreign entity in order to be eligible for the requested nonimmigrant visa petition will be withdrawn. 
The director's reference to the petitioner's funding relates to the regulation at 8 C.F.R. $ 214.2(1)(3)(5)(C), 
which requires that the petitioner demonstrate its ability within one year of approval of the instant petition to 
employ the beneficiary in a primarily managerial or executive capacity by providing such evidence as: the 
petitioner's proposed scope, organizational structure and financial goals; the size of the United States 
investment and the foreign entity's ability to fund the United States organization and commence doing 
business; and, the foreign entity's organizational structure. 
Upon review, the record does not establish that the beneficiary would be employed by the petitioning entity in 
a primarily managerial or executive capacity within one year of the petition's approval. According to the 
petitioner's Internal Revenue Service (IRS) Form SS-4, Application for Employer Identification Number, it 
expects to employ a total of two workers during the twelve months since beginning business in May 2002. 
Based on the petitioner's proposed organizational chart, the beneficiary would be one of three employees, 
which includes the company's president and an operations manager. While the organizational chart identifies 
lower-level positions in the areas of administration, finance, sales, logistics, maintenance and transportation, 
there is no evidence as to when the petitioner intends to fill these positions, which appear to be essential to 
supporting the beneficiary in a primarily managerial or executive capacity. As the petitioner would be selling 
and servicing office equipment in the United States, a lower-level sales and operational support staff would be 
necessary to relieve the beneficiary from having to personally perform the sales and services offered by the 
petitioner. The current record does not demonstrate that the beneficiary would be engaged in primarily 
managerial or executive tasks within one year of the instant petition's approval. 
Additionally, the petitioner has not demonstrated the size of the United States investment, or the foreign 
entity's financial ability to remunerate the beneficiary and commence doing business in the United States. 
SRC 02 188 50052 
Page 8 
Here, while the petitioner submitted a translated copy of the foreign entity's December 3 1, 2001 general 
balance sheet and profit and loss statement, the amounts represented on the financial documents are identified 
in the Peruvian currency of nuevo sol. The record also contains untranslated copies of what appear to be sales 
of the foreign entity from November and December 2001 and January through June 2002. The limited 
documentation in the record restricts a determination of whether the foreign entity is financially able to 
remunerate the beneficiary her annual salary of $18,720, and to commence doing business in the United 
States. Further, the petitioner's business plan does not identify the anticipated start-up costs for the United 
States company, thus further complicating a determination as to whether there is a realistic expectation that 
the United States company will be sufficiently funded to commence business operations. 
Taken as a whole, the record fails to demonstrate that within one year of the approval of the nonimmigrant 
visa petition, the beneficiary would be employed by the United States entity in a primarily managerial or 
executive capacity. For this additional reason, the petition will be denied. 
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. 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). 
The petition will be denied for the above stated reasons, with each considered as an independent and 
alternative basis for denial. 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. 3 1361. Here, that burden has 
not been met. 
ORDER: The appeal is dismissed.