dismissed L-1A Case: Paramedical Services

U.S. Department of Homeland Security 
20 Massachusetts Ave., N.W., Rm. A3042 
Washington, DC 20529 
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PhaeJr 
PUBLIC COPY 
U. S. Citizenship 
and Immigration 
File:' WAC 04 009 51601 Office: CALIFORNIA SERVICE CENTER Date: 3 0 2005 
IN RE: Petitioner: 
Beneficiary: fi 
Petition: Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(15)(L) of the Immigration and 
Nationality Act, 8 U.S.C. 5 1101(a)(15)(L) 
IN 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. 
dministrative Appeals Office 
WAC 04 009 51601 
Page 3 
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 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 in the State of Nevada that claims to be 
engaged in the provision of paramedical, clinical laboratory and educational and professional career 
development services. The petitioner claims that it is the subsidiary of New Monte Medical Supply, Inc. 
located in Baguio City, Philippines. The petitioner seeks to open a new office in the United States and has 
requested that the beneficiary be granted a one-year period of stay to serve as its vice president 
financelgeneral manager. 
The director denied the petition concluding that the petitioner did not establish that: (1) the petitioner has a 
qualifying relationship with the foreign entity; (2) the petitioner has secured sufficient physical premises to 
house the new office; or that (3) the beneficiary will be employed in a primarily managerial or executive 
capacity within one year of the approval of the petition. 
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 sufficient 
evidence was submitted to establish that the foreign entity and the petitioner have a parent-subsidiary 
relationship. Counsel asserts that the director placed undue emphasis on the number of employees the 
beneficiary would supervise, and did not consider whether she will perform executive duties or manage a 
function of the organization. Finally counsel states that the petitioner previously submitted a sub-lease 
agreement, but has since obtained a new lease for an office in a different location. In support of the appeal, 
counsel submits a brief and additional supporting documentation. 
To establish eligibility for the L-1 nonimmigrant visa classification, the petitioner must meet the criteria 
outlined in section IOl(a)(15)(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. !j 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. 
WAC 04 009 51601 
Page 4 
(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 himher to perform the intended 
services in the United States; however, the work in the United States need not be the 
same work which the alien performed abroad. 
The regulation at 8 C.F.R. 3 214.2(1)(3)(v) also provides that if the petition indicates that the beneficiary is 
coming to the United States as a manager or executive to open or 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 involves executive or managerial authority over the new 
operation; and 
(C) The intended United States operation, within one year of the approval of the 
petitioner, 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 first issue in this matter is whether the petitioner has established a qualifying relationship between the 
United States entity and the beneficiary's foreign employer. 
The pertinent regulations at 8 C.F.R. 3 214.2(1)(l)(ii) define the term "qualifying organization" and related 
terms as follows: 
(G) QualEfLirlg organization means a United States or foreign firm, corporation, or other 
legal entity which: 
WAC 04 009 5 160 1 
Page 5 
(1) Meets exactly one of the qualifying relationships specified in the definitions of a 
parent, branch, affiliate or subsidiary specified in paragraph (I)(l)(ii) of this 
section: 
(2) Is or will be doing business (engaging in international trade is not required) as an 
employer in the United States and in at least one other country directly or 
through a parent, branch, affiliate or subsidiary for the duration of the alien's 
stay in the United States as an intracompany transferee; and, 
(3) Otherwise meets the requirements of section 101(a)(15)(L) of the Act. 
(I) Parent means a firm, corporation , or other legal entity which has subsidiaries. 
(J) Branch means an operating division or office of the same organization housed in a 
different location. 
(K) Subsidiary means a firm, corporation, or other legal entity of which a parent owns, 
directly or indirectly, more than half of the entity and controls the entity; or owns, 
directly or indirectly, half of the entity and controls the entity; or owns, directly or 
indirectly, 50 percent of a 50-50 joint venture and has equal control and veto power 
over the entity; or owns, directly or indirectly, less than half of the entity, but in fact 
controls the entity 
On Form 1-129, the petitioner indicated that the foreign entity is the parent company of the U.S. entity based 
on its ownership of 60 percent of the petitioner's stock. The petitioner did not submit supporting 
documentation to establish the claimed qualifying relationship. 
On February 12, 2004, the director issued a request for additional evidence, instructing the petitioner to 
submit, in part: (1) evidence to show that the foreign company has paid for the U.S. entity, including copies of 
original wire transfers, canceled checks, deposit receipts or other documentation of the stock purchase; (2) 
minutes of the meeting for the U.S. company which lists the shareholders and the number and percentage of 
shares owned; (3) copies of all of the U.S. company's stock certificates; (4) a copy of the U.S. company's 
stock ledger showing all stock certificates issued, including total shares of stock sold, names of shareholders 
and purchase price; and (5) a copy of the U.S. company's Notice of Transaction Pursuant to Corporations 
Code Section 25102(f) showing the total offering amounts, accompanied by evidence which clearly 
documents that the parent company has paid for its stock ownership. 
In a response received on May 6, 2004, the petitioner submitted in part its stock certificates, stock transfer 
ledger, partially illegible cash deposit or wire transfer slips, and minutes of the organizational meeting of the 
board of directors dated September 20, 2003, indicating that the petitioner was authorized to issue 75,000 
shares of stock with a par value of $1.00. The stock transfer ledger indicates that the foreign entity paid 
$20,000 for its 45,000 shares, while four individuals paid $250 each for 5,000 shares, two individuals paid 
$250 each for 2,000 shares, and one individual paid $250 for 1,000 shares. The petitioner's business plan 
WAC04009 51601 
Page 6 
indicated that the petitioner's bank account would be opened with a deposit of $3,000 and the foreign entity 
would transfer the initial funds of $20,000 to organize the U.S. corporation. 
The director denied the petition on May 14, 2004, in part determining that the petitioner had not established 
the claimed parent-subsidiary relationship with its parent company. The director noted that although the 
petitioner submitted a copy of a cash deposit slip for $20,000, the deposit slip does not indicate the date or 
bank account into which the funds were deposited. The director also observed that the petitioner submitted no 
evidence to document the origin of the funds, and provided insufficient documentation to establish that the 
foreign parent company has the needed capital to establish the new office. The director concluded that absent 
copies of wire transfers and bank statements from the claimed foreign parent company showing that the 
capital used for the petitioning entity originated with the foreign entity, the petitioner did not establish a 
qualifying relationship between the two companies. 
On appeal, counsel for the petitioner states that the foreign entity owns 60 percent of the petitioner's stock and 
had transferred the money to the petitioner for the initial investment to start the business in the United States. 
The petitioner submits a copy of its May 2004 bank statement indicating that it received a wire transfer in the 
amount of $19,982.00 originating from the foreign entity on May 21, 2004. The petitioner also provides a 
copy of the foreign entity's May 2004 bank statement, which shows a $20,000 debit from its account on or 
about May 13,2004. 
On review, the record does not demonstrate that the U.S. and foreign companies were qualifying 
organizations at the time the petition was filed. The regulations and case law confirm that the key factors for 
establishing a qualifying relationship between the U.S. and foreign entities are ownership and control. Matter 
of Siemens Medical Systems, Inc., 19 I&N Dec. 362 (BIA 1986); Matter of Hughes, 18 I&N Dec. 289 
(Comm. 1982); see also Matter of Church Scientology International, 19 I&N Dec. 593 (BIA 1988)(1n 
immigrant visa proceedings). In the context of this visa petition, ownership refers to the direct and indirect 
legal right of possession of the assets of an entity with full power and authority to control; control means the 
direct or indirect legal right and authority to direct the establishment, management, and operations of an 
entity. Matter of Church Scientology International, supra at 595. 
As general evidence of a petitioner's claimed qualifying relationship, stock certificates alone are not sufficient 
evidence to determine whether a stockholder maintains ownership and control of a corporate entity. The 
corporate stock certificate ledger, stock certificate registry, corporate bylaws, and the minutes of relevant 
annual shareholder meetings must also be examined to determine the total number of shares issued, the exact 
number issued to the shareholder, and the subsequent percentage ownership and its effect on corporate 
control. Additionally, a petitioning company must disclose all agreements relating to the voting of shares, the 
distribution of profit, the management and direction of the subsidiary, and any other factor affecting actual 
control of the entity. See Matter of Siemens Medical Systems, Inc., supra. Without full disclosure of all 
relevant documents, CIS is unable to determine the elements of ownership and control. 
The regulations specifically allow the director to request additional evidence in appropriate cases. See 8 
C.F.R. 5 214.2(1)(3)(viii). As ownership is a critical element of this visa classification, the director may 
reasonably inquire beyond the issuance of paper stock certificates into the means by which stock ownership 
was acquired. As requested by the director, evidence of this nature should include documentation of monies, 
property, or other consideration furnished to the entity in exchange for stock ownership. Additional 
WAC 04 009 51601 
Page 7 
supporting evidence would include stock purchase agreements, subscription agreements, corporate by-laws, 
minutes of relevant shareholder meetings, or other legal documents governing the acquisition of the 
ownership interest. 
The instant petition was submitted on October 14, 2003. While the stock certificates and stock transfer ledger 
indicate that the foreign entity owns the majority of the petitioner's stock, there is no evidence that the 
petitioner received any consideration in exchange for its stock until May 21, 2004, one week after the 
director's decision to deny the petition. The petitioner must establish eligibility at the time of filing the 
nonimmigrant visa petition. A visa petition may not be approved at a future date after the petitioner becomes 
eligible under a new set of facts. Matter of Michelin Tire Coy., 17 I&N Dec. 248 (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 Izurrzmi, 22 I&N Dec. 169, 176 (Assoc. Comm. 1998). The stock certificates 
alone are insufficient to establish the foreign entity's majority ownership interest in the U.S. company as of 
the date of filing. 
The AAO also notes a discrepancy between the stated par value of the petitioner's stock certificates, and the 
amount purportedly paid by its shareholders in consideration for the shares. The petitioner's stock certificates 
and minutes of its organizational meeting indicate that the company's stock has par value of $1.00 per share; 
however, the stock ledger indicates that the shareholders paid a purchase price between $.02 to $.44 per share, 
resulting in a total purchase price of only $22,000 for stock valued at $75,000. 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). 
The petitioner has not submitted sufficient evidence to overcome the director's decision on this issue. For this 
reason, the appeal will be dismissed. 
The AAO will next turn to the issue of whether the petitioner has secured sufficient physical premises to 
house its new office, as required by 8 C.F.R. 5 214.2(1)(3)(v)(A). 
In support of the petition filed on October 14, 2003, the petitioner submitted a copy of a "commercial 
property lease" for 1200 square feet of office space located at "510 south burnside avenue unit 10M." The 
term of the agreement was for twelve months with a monthly rent of $3,000. 
In his February 12, 2004 request for evidence, the director instructed the petitioner to provide additional 
evidence that it had secured sufficient premises to house the new office, including: (1) a detailed description 
of the type of business the petitioner will operate; (2) an explanation as to why the petitioner chose its specific 
location; (3) the type of building in which the office is located; (4) a copy of the U.S. company's floor plan 
for all spaces including an office, warehouse and production spaces; (5) photographs of the U.S. business 
premises including the inside and outside of all office, production and warehouse spaces with equipment, 
merchandise, products and employees clearly visible, and any company logos or signs displayed on and in 
buildings and on products; (6) the U.S. business's office hours and the hours during which the beneficiary 
will occupy the workplace; and (7) the current operating business phone number located within the 
company's physical premises. 
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In a response received on May 6, 2004, the petitioner indicated that it would engage in the placement of 
medical equipment and supplies to hospitals, laboratories and clinics. In an accompanying business plan, the 
petitioner indicated that it plans to provide group studies, lectures and continuing education programs for 
clinical laboratory scientists and assist its students with job placement. The petitioner submitted another copy 
of its lease, a floor plan for the office space, and photographs. 
The director denied the petition on May 14, 2004, in part concluding that the petitioner did not establish that it 
had secured sufficient physical premises to house the new office. The director observed that the 1200 square 
feet of office space indicated in the lease would not be sufficient to accommodate the petitioner's projected 
staff or allow it to provide its planned educational programs to clients. The director also observed that the 
submitted photographs appear to be of two different locations, noting: "The outside signage appears to be a 
temporary posted sign on the exterior of a building and a paper taped to the outside of an office door." 
On appeal, counsel for the petitioner states: "The petition is for a new office, a sublease was obtained before 
to start the US Corporation, which was submitted with the response to [the request for evidence.] And the 
mean time a Lease is obtained." The petitioner submits a new lease and photographs purportedly depicting its 
new office space. 
Counsel's argument is not persuasive. The petitioner has not secured sufficient physical premises to house the 
new office. Although the petitioner submitted a lease agreement with the initial petition, there is no evidence 
to establish that the company actually occupied the 1200 square feet of office space located at the address 
listed on the lease agreement. As noted by the director, the exterior and interior photographs provided do not 
appear to depict the same location. Rather, the photographs submitted in response to the request for evidence 
depict the exterior of the building with a building entrance and street address displayed, a temporary sign for 
the petitioner's business affixed to the exterior of the building, an interior door with the petitioner's name 
affixed, along with a temporary sign indicating "Unit 10 M," and the interior of what appears to be a small 
office with one desk and computer workstation. The floor plan, which appears to have been created by the 
petitioner, indicates that the door to the office opens to a long hallway with a large staff room, work 
aredoffice space, an information desk, a lounge and two restrooms. The small office that appears in the single 
interior photograph submitted by the petitioner is clearly not 1200 square feet in size, nor is it depicted on the 
petitioner's floor plan. 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. Matter of 
Ho, 19 I&N Dec. 582,591 (BL4 1988). 
On appeal, rather than addressing the problems noted by the director, the petitioner simply submits a new 
lease agreement and photographs for a different location. The submitted evidence undermines, rather than 
supports, the petitioner's claim that it has secured physical premises for its new office. The lease agreement 
was purportedly signed on May 4, 2004, one day after the petitioner submitted its response to the director's 
request for evidence, yet the petitioner did not mention that it intended to relocate to a new office space as of 
May 5, 2004. The lease agreement does not identify the use for which the leased premises may be used or 
identify the size of the leased property. The lessor, " .," cannot be found in 
California State public records or telephone directories. The petitioner did not provide photographs of the 
exterior of the building that houses the new office. The petitioner provides photographs of a very narrow 
wooden door that appears to be in a residential building. Beside the door, the petitioner attached with thumb 
tacks a temporary sign with the petitioner's name, address, telephone and fax numbers, and a small sign 
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indicating the office number as "103." The photographs of the interigr depict a large, modem office space 
with at least ten cubicles, and two or three separate offices. The photographs appear to have been taken after 
11:OO pm when the office was unoccupied, but all of the workstations are clearly assigned to employees. The 
petitioner's new office is not yet staffed. These photographs obviously depict two different locations and do 
not represent the petitioner's actual office space. Again, 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. Matter of Ho, 19 I&N Dec. at 591. 
Regardless, the petitioner must establish eligibility at the time of filing the nonimmigrant 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 of Michelin Tire Corp., 17 I&N Dec. at 248. Accordingly, even if the new lease 
agreement were legitimate, it was signed seven months after the petition was filed and would not be given any 
evidentiary weight in this proceeding. 
Based on the foregoing discussion, the petitioner has not established that it had secured sufficient premises to 
house the new office as required by 8 C.F.R. 3 214.2(1)(3)(v)(A). For this reason, the appeal will be 
dismissed. 
The third issue in this proceeding is whether the petitioner established that the beneficiary will be employed 
in a managerial or executive capacity within one year of approval of the petition. 
Section 101(a)(44)(A) of the Act, 8 U.S.C. § 1101(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 
promotion and leave authorization), or if no other employee is directly supervised, 
functions at a senior level within the organizational hierarchy or with respect to the 
function managed; and 
(iv) exercises discretion over the day to day operations of the activity or function for 
which the employee has authority. A first line supervisor is not considered to be 
acting in a managerial capacity merely by virtue of the supervisor's supervisory 
duties unless the employees supervised are professional. 
Section 101(a)(44)(B) of the Act, 8 U.S.C. 5 1101(a)(44)(B), defines the term "executive capacity" as an 
assignment within an organization in which the employee primarily: 
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(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 an October 6, 2003 letter submitted with the initial petition, the petitioner described the beneficiary's 
proposed duties as vice president financelgeneral manager: 
Direct and coordinate activities of the U.S. Corporation. She will [be] in over-all-in-charge 
[sic] of the company's operation department. She will formulate and administer organization 
policy discussing the business plan with Parent Company; Participate in formulating and 
administering company policies and developing long range goals and objectives; direct and 
coordinate activities of the company to further attainment of goals and objectives. 
Further she will do comprehensive analysis of company's financial status, budget 
management study, and comparative reports based on economist standardize computation of 
stocks and bonds. Will review analyses of activities, cost, operation and forecast data and 
objectives. 
With the initial petition, the petitioner submitted two organizational charts depicting the staffing or proposed 
staffing of the United States company. One chart depicts a CEOlpresident and vice presidentfdirector over the 
beneficiary's position and a vice president marketinglcorporate secretary position. The chart indicates that the 
beneficiary will supervise a "directorlmaintenance officer" and the vice president marketing will supervise a 
"director/international officer." A11 of the individuals on the chart are identified by name and are shareholders 
of the company. The other organizational chart depicts the beneficiary's proposed subordinates. It shows that 
she will supervise an operation manager who in turn will supervise a purchasing officer, customer relations 
officer, front desk employee and clerk. The operation manager will also supervise a director of education who 
is depicted as supervising "hematology," "chemistry," "microbiology," and "blood bank/irnmunology." 
Finally, the petitioner submitted a document titled "Company's Future Plan" which states that the U.S. 
company "shall be engaged on [sic] paramedical services, educational and or professional career 
development, manpower pooling services, clinical laboratory field services and professional consultation." 
On February 12,2004, the director requested additional evidence to establish that the U.S. organization would 
be able to support the beneficiary in a managerial or executive capacity within one year. Specifically, the 
director requested the following: (1) an original letter from the foreign company explaining the need for the 
new office, the proposed number of employees and types of positions they will hold, the amount of the U.S. 
investment, the financial ability of the foreign company to pay the beneficiary and commence doing business, 
and the size and staffing level of the foreign company; (2) minutes of meetings for the foreign company to 
illustrate discussions to form the U.S. entity; (3) a copy of the feasibility study by which the foreign parent 
company determined the need for, and feasibility of the proposed United States company; (4) copies of 
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Page 11 
current and original plans prepared by the foreign company for the U.S. entity, including specific details as to 
the business to be conducted and one, three, and five-year projections for business expenses, sales, gross 
income and profits or losses; and, (5) proof of business conducted by the foreign parent company in the 
United States to date. 
The petitioner submitted the requested documents from the foreign entity, including a business plan, 
feasibility study, and minutes of meetings related to the establishment of the U.S. company and the 
beneficiary's transfer to the United States. The feasibility study indicates that the U.S. entity intends to 
provide lectures and group studies to prepare students for the California licensure examination for clinical 
laboratory scientists, provide continuing education programs for laboratory scientists, and assist successful 
examinees with job placement in hospitals and clinical laboratories. The petitioner also provided the 
following description of the beneficiary's proposed duties as general manager of the U.S. entity: 
1. Under supervision and control of COO, to have over-all supervision and control of 
operations of the business. 
2. To select, screen, hire and discipline and fire employees in keeping with current 
employment laws; 20% 
3. To train and transfer knowledge and technology to trainees and recruits, such that they 
would eventually acquire the proper procedures and operations of the business especially 
on the marketing and recruitments 20% 
4. To coordinate with the rest of the officers, and to foreign company in regard to financial 
requirements and projected income of the corporation. 20% 
5. Under the control and supervision of COO, to negotiate, transact, conclude[,] enter into, 
execute and deliver any and all contracts andlor agreements on behalf of the corporation 
and provide such terms and conditions that would make the corporation's [sic] 
competitive in the industry. 20% 
6. Subject to COO'S review and/or supervision, to directly exercise management required 
and otherwise necessary to lawfully competitively do and carry out the business. To 
generally to take care of the day-to-day business affairs of the corporation and assume all 
responsibilities relating to questions, problems, strategies and solutions and alternatives 
to any and all business matters. 10% 
7. Under supervision and control of COO, to ensure compliance with all laws, ordinances, 
administrative rules and regulations of the industry. 5% 
8. To report periodically to the Chief Operating Officer and/or President on the over-all 
picture of the corporation, i.e., financial, administrative and technical aspects of the 
corporation. 5% 
The foreign entity provided a hiring plan for the U.S. entity that indicated that the petitioner intended to hire a 
clerk to assist the beneficiary with communications and record-keeping within two months after the approval 
of the L-IA petition. The hiring plan indicated that a marketing manager would be hired one year after 
approval, a human resources specialist would be hired within two years, an education consultant would be 
hired "eighteen months or a year" from the date of approval, and instructors and trainers would be hired "after 
all this organizational structure has been established and upon the opening of the first session or classes." The 
petitioner submitted another copy of the organizational chart submitted with the initial petition. 
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Page 12 
On May 14, 2004, the director denied the petition, in part concluding that the petitioner did not establish that 
the beneficiary will be employed in an executive or managerial capacity within one year. The director noted 
that the petitioner intended to hire only one employee within the first year of operations, and that the 
beneficiary would not have a staff to relieve her from performing the day-to-day duties of the business. As 
such, the director could not conclude that substantially all of the beneficiary's duties would be at the 
executive or managerial level. 
On appeal, counsel for the petitioner asserts that the director erroneously based his decision on the number of 
employees to be supervised and did not consider whether the beneficiary would perform executive duties or 
manage a function of the organization. Counsel claims that the beneficiary will perfom executive duties, and 
will also manage the finance function of the organization. Counsel claims that the beneficiary will be 
performing executive duties by "making major decisions, establishing goals and policies of the company, 
directing the management and marketing of the company," will receive only general supervision from the 
foreign company, and will "decide to invest in other assets and business." Counsel emphasizes that the 
position offered to the beneficiary is not a first-line supervisor position, and claims that the petitioner did not 
state that the beneficiary would supervise managers or other staff. 
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. 
242(1)(3)(ii). The petitioner's description of the job duties must clearly describe the duties to be 
performed by the beneficiary and indicate whether such duties are either in an executive or managerial 
capacity. Id. 
The petitioner's description of the beneficiary's duties is too general and vague to convey what duties she will 
actually perform as vice president finance and general manager of the U.S. company. The initial description 
of the beneficiary's duties included broad responsibilities such as "direct and coordinate activities of the U.S. 
company," "formulate and administer organization policy," and "participate in formulating and administering 
company policies and developing long range goals and objectives." These duties merely paraphrase the 
statutory definition of executive capacity. See section 101(a)(44)(B) of the Act. Conclusory assertions 
regarding the beneficiary's employment capacity are not sufficient. Merely repeating the language of the 
statute or regulations does not satisfy the petitioner's burden of proof. Fedin Bros. Co., Ltd. v. Suva, 724 F. 
Supp. 1103, 1108 (E.D.N.Y. 1989), am, 905 F. 2d 41 (2d. Cir. 1990); Av.yr Associates, lnc. v. Meissner, 
1997 WL 188942 at *5 (S.D.N.Y.). 
In response to the request for evidence, the petitioner provided an account of how the beneficiary would 
allocate her time, yet still failed to provide a detailed description of her day-to-day duties. For example, the 
petitioner stated that the beneficiary would devote 20 percent of her time to negotiating, transacting and 
delivering all contracts and agreements on behalf of the company. The petitioner does not, however, specify 
the types of contracts or provide any additional explanation that would distinguish these duties from routine 
sales tasks, nor has it stated that it intended to hire any other employees who would be responsible for selling 
the petitioner's services. If the beneficiary is selling the petitioner's services, this portion of her time will not 
be considered time spent performing managerial or executive duties. The petitioner stated that the beneficiary 
would devote an additional 20 percent of her time to "train and transfer knowledge and technology to trainees 
and recruits." The petitioner's hiring plan indicates that the petitioner will employ only an office clerk during 
the first year of operations. The petitioner has not explained how the beneficiary's responsibility for training a 
WAC 04 009 5 1601 
Page 13 
low-level employee would satisfy the definition of either managerial or executive capacity. The remainder of 
the job description provided in response to the request for evidence is couched in general terms, such as "have 
overall supervision and control of the operations of the business," "take care of day-to-day business affairs," 
"ensure compliance with all laws, ordinances, administrative rules," and "report periodically to the Chief 
Operating Officer andlor President." Reciting the beneficiary's vague job responsibilities or broadly-cast 
business objectives is not sufficient; the regulations require a detailed description of the beneficiary's daily job 
duties. The petitioner has failed to answer a critical question in this case: What will the beneficiary primarily 
do on a daily basis? The actual duties themselves will reveal the true nature of the employment. Fediri Bros. 
Co., Ltd. v. Suva, 724 F. Supp. at 1108. The AAO is unable to determine what duties the beneficiary will 
perform on a day-to-day basis, and therefore cannot conclude that the beneficiary will be performing 
primarily managerial or executive duties. 
The petitioner has also failed to provide a consistent depiction of the beneficiary's level of authority within 
the petitioning organization and the U.S. company's proposed staffing levels. The job description for the 
beneficiary's position indicates that she will control the U.S. entity "under supervision and control," of the 
chief operating officer of the foreign entity. The petitioner's organizational chart indicates that the beneficiary 
will report to a vice presideddirector, who in turn is supervised by the president of the U.S. entity. If the 
beneficiary will, in fact, have two tiers of management above her, the petitioner's claim that she will establish 
the goals and policies of the company is not credible, as the highest-level executive would reasonably perform 
these duties. 
With respect to the petitioner's staffing levels, the petitioner indicated in its hiring plan that it intends to hire 
an office clerk during the first year of operations, a marketing manager after one year, an "education 
consultant" in twelve to eighteen months, and "instructors and trainers" to be hired "after all this 
organizational structure has been established." The petitioner also submitted two conflicting organizational 
charts. One chart depicts a CEOIPresident, Vice PresidentAIirector, the beneficiary as Vice President 
FinanceIGeneral Manager supervising a DirectorMaintenance Officer, and a Vice President Marketing who 
will supervise a DirectorIInternational Officer. The second chart indicates that the beneficiary will supervise 
an operation manager, who will oversee a front desk employee, a clerk, a purchasing officer, a customer 
relation officer, and a director of education, who will supervise hematology, chemistry, microbiology, and 
blood bank/immunology employees or departments. 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). Based on the conflicting information 
provided regarding the petitioner's proposed organizational structure and the beneficiary's place within it, the 
AAO cannot conclude that the beneficiary would occupy a position at a senior level within the petitioner's 
organizational hierarchy, or that she would manage the organization or a component or department of the 
organization. 
The director concluded, and the petitioner does not dispute on appeal, that the beneficiary would supervise 
only one employee, an office clerk, by the end of the first year of operations. On appeal, counsel correctly 
states that section IOl(a)(44) of the Act was not intended to limit managers or executives to persons who 
supervise a large number of persons or large enterprises. A company's size alone, without taking into account 
the reasonable needs of the organization, may not be determining factor in denying a visa to a multinational 
manager or executive See section lOl(a)(44)(C) of the Act, 8 U.S.C. 5 1101(a)(44)(C). However, it is 
WAC 04 009 51601 
Page 14 
appropriate for CIS to consider the size of the petitioning company in conjunction with other relevant factors, 
such as a company's small personnel size, the absence of employees who would perform the non-managerial 
or non-executive operations of the company, or a "shell company" that does not conduct business in a regular 
and continuous manner. See, e.g. Systronics Corp. v. INS, 153 F. Supp. 2d 7, 15 (D.D.C. 2001). The size of a 
company may be especially relevant when CIS notes discrepancies in the record and fails to believe that the 
facts asserted are true. Id. 
An analysis of the nature of the petitioner's business undermines counsel's assertion that the beneficiary will 
be engaged in primarily executive duties. The petitioner intends to provide training courses for clinical 
laboratory scientists and offer job placement services, and therefore reasonably requires employees to obtain 
accreditations from state authorities, perform bookkeeping and banking functions, research market conditions, 
market and sell the petitioner's services, prepare invoices, prepare training materials, deliver training to 
clients, and develop relationships with local hospitals and laboratories for job placement purposes. Based on 
the petitioner's representations, it does not appear that the reasonable needs of the petitioning company might 
plausibly be met by the services of the beneficiary as general manager and one clerk. It can therefore be 
assumed, and has not been proven otherwise, that either the petitioner does not expect the company to become 
operational within one year, or the beneficiary herself will be performing many non-qualifying duties even at 
the end of the first year of operations, which would prevent her from performing primarily managerial or 
executive duties. 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). 
Counsel further asserts that the director failed to consider that the beneficiary will manage the finance 
function of the U.S. company. 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. 
§ 1101(a)(44)(A)(ii). The term "essential function" is not defined by statute or regulation. If a petitioner 
claims that the beneficiary is managing an essential function, the petitioner must furnish a comprehensive and 
detailed description of the duties to be performed, i.e. 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. See 8 C.F.R. 5 214.2(1)(3)(ii). In addition, the petitioner's description of the 
beneficiary's daily duties must demonstrate that the beneficiary manages the function rather than perfornls the 
duties related to the function. 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. Boyang, Ltd. v. 
I.N.S., 67 F.3d 305 (Table), 1995 WL 576839 (9th Cir, 1995)(citing Matter of Church Scientology 
International, 19 I&N Dec. 593, 604 (Comrn. 1988)). In this matter, the petitioner has not provided evidence 
that the beneficiary manages an essential function. The petitioner indicates that the beneficiary will "be in 
charge of the financial affairs of the company," yet includes in this broad responsibility non-qualifying duties 
such as paying bills, and being responsible for billing and collection accounts. The fact that the beneficiary 
will be the only employee with any responsibility for the petitioner's finances does not elevate her duties to a 
"function manager" position for immigration purposes. The unsupported assertions of counsel do not 
constitute evidence. Matter of Obaigbena, 19 I&N Dec. 533, 534 (BIA 1988); Matter of Laureano, 19 I&N 
Dec. 1 (BIA 1983); Matter of Ranzirez-Sanchez, 17 1&N Dec. 503, 506 (BM 1980). 
WAC 04 009 51601 
Page 15 
On appeal, counsel further refers to unpublished decisions in which the AAO determined that the beneficiary 
met the requirements of serving in a managerial capacity for L-1 classification as a function manager. 
Counsel has furnished no evidence to establish that the facts of the instant petition are analogous to those in 
the unpublished decisions. While 8 C.F.R. Q 103.3(c) provides that AAO precedent decisions are binding on 
all CIS employees in the administration of the Act, unpublished decisions are not similarly binding. 
When a new business is established and commences operations, the regulations recognize that a designated 
manager or executive responsible for setting up operations will be engaged in a variety of activities not 
normally performed by employees at the executive or managerial level and that often the full range of 
managerial responsibility cannot be performed. In order to qualify for L-1 nonimmigrant classification during 
the first year of operations, the regulations require the petitioner to disclose the business plans and the size of 
the United States investment, and thereby establish that the proposed enterprise will support an executive or 
managerial position within one year of the approval of the petition. See 8 C.F.R. Q 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 qualifying duties. 
The petitioner has provided a vague description of the beneficiary's proposed duties, a meager outline of the 
U.S. company's proposed operations and objectives, and a confusing picture of its planned organizational 
hierarchy and the beneficiary's place within it. There is no evidence that the foreign company had invested 
any money in the U.S. entity at the time the petition was filed, and, as discussed above, the petitioner did not 
provide probative evidence that it had secured sufficient premises to house the new office. Collectively, the 
evidence submitted does not demonstrate that the petitioning organization will support the beneficiary in a 
managerial or executive capacity within one year of commencing operations. For this reason, the appeal will 
be dismissed. 
Beyond the decision of the director, the petitioner has not established that the beneficiary has been employed 
with the foreign entity in an executive or managerial capacity as required 8 C.F.R. § 214.2(1)(3)(v)(B). The 
job description submitted by the foreign entity indicates that the beneficiary served as "assistant vice- 
president/operation manager" with the foreign entity from September 1999 to December 2002 and was "over- 
all in-charge on the company's operation department supervisions and implementation of management 
policies and regulations" as well as "comprehensive analysis of company's financial status, budget 
management study, and comparative report based on economist standardize computation of stocks and 
bonds." In his request for evidence, the director requested a comprehensive description of the beneficiary's 
duties with the foreign entity, an organizational chart depicting all employees under the beneficiary's 
supervision, and brief job descriptions for all of the beneficiary's subordinates. The petitioner provided only 
the requested organizational chart. Failure to submit requested evidence that precludes a material line of 
inquiry shall be grounds for denying the petition. 8 C.F.R. 5 103.2(b)(14). The vague job description 
submitted with the petition does not contain sufficient detail to establish that the beneficiary has been 
employed in a managerial or executive capacity with the foreign entity. 
In addition, the staffing of the foreign entity is also relevant to the issue of whether the beneficiary served in a 
managerial or executive capacity with the foreign entity. The AAO finds reason to doubt that the foreign 
entity employs the more than seventy employees listed on its organizational chart. In support of the initial 
petition, the petitioner provided a lease for the foreign entity indicating that it leased 586 square feet of office 
WAC 04 009 51601 
Page 16 
space, consisting of two adjoining rooms and a bathroom. In the request for evidence, the director instructed 
the petitioner to provide photographs of the foreign company's business premises, with equipment, 
merchandise, products and employees clearly visible, and any company logos, emblems or signs displayed on 
buildings or products. The photographs submitted appear to depict a showroom with medical supplies, a small 
warehouse room, a conference room, and a single office with two workstations. No employees or company 
logos appear on any of the photographs. The petitioner also submitted a floor plan for the foreign entity which 
depicts approximately eighteen separate offices or rooms. The floor plan clearly does not coincide with the 
foreign entity's lease or photographs. 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. Matter of Ho, 19 I&N Dec. 582,591 (BIA 1988). 
Finally, the director requested copies of the foreign entity's payroll records pertaining to the beneficiary for 
the year preceding the filing of the petition. The foreign entity provided a payroll summary for the beneficiary 
for January 1 through December 31, 2003; however, the beneficiary indicated on her resume that she left the 
foreign entity in December 2002. Again, it is incumbent upon the petitioner to resolve any inconsistencies in 
the record by independent objective evidence. Matter of Ho, 19 I&N Dec. at 591-92. Further, CIS records 
show that the beneficiary was in the United States as a nonimmigrant visitor for all but two weeks in 2003, 
and for an extended periods of at least six months or longer in 2001 and 2002. The petitioner has not 
established that the beneficiary was employed in a qualifying capacity with the foreign entity for one 
continuous year in the three years preceding the filing of this petition. See 8 C.F.R. $j$j 214.2(1)(3)(iii) and (iv). 
For this additional reason, the petition will not be approved. 
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 Erzterprises, Inc. v. United States, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 2001), nfd. 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. $j 1361. Here, that burden has 
not been met. 
ORDER: The appeal is dismissed.