dismissed L-1A Case: Personnel Services

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U.S. Department of Homeland Security 
20 Massachusetts Ave.. N.W., Rm. A3042 
Wasli~ngton, DC 20520 
U.S. Citizenship 
and Immigration 
Services mt1c COPY 
FILE: SRC 03 198 53696 Office: TEXAS SERVICE CENTER Date: JUN 2 8 2005 
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 10 I (a)(l5)(L) of the Immigration 
and Nationality Act, 8 U.S.C. Q: 1 I01 (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. 
w Robert P. Wiemann. Dir ctor 
Administrative Appeals Office 
\? 
SRC 03 198 53696 
Page 2 
DISCUSSION: The nonimmigrant visa petition was denied by the Director, Texas Service Center. The 
matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. 
According to the documentary evidence contained in the record, the petitioner was incorporated March 6, 
2002. and claims to be in the   la cement and ~ersonnel services business. The ~etitioner claims that the 1i.S. 
extend its authorization to employ the beneficiary temporarily in the United States as its president and CEO 
for a period of three years, at a yearly salary of $84,000.00. The director determined that the petitioner had 
not submitted sufficient evidence to demonstrate that the beneficiary had been or would be employed by the 
U.S. entity primarily in a managerial or executive capacity. The beneficiary was initially granted a one-year 
period of its stay to open a new office in the United States and the petitioner now seeks to extend the 
beneficiary's stay. 
On appeal, counsel disagrees with the director's determination and asserts that the beneficiary's duties have 
been and will continue to be managerial, executive, and involve specialized knowledge. 
To establish L- 1 eligibility under section 101 (a)(15)(1,) of the Immigration and Nationality Act (the Act), 
8 U.S.C. 1 lOl(a)(l5)(L), the petitioner must demonstrate that the beneficiary, within three years preceding 
the beneficiary's application for admission into the United States, has been employed abroad in a qualifying 
managerial or executive capacity, or in a capacity involving specialized knowledge, for one continuous year 
by a qualifying organization, and seeks to enter the United States temporarily in order to continue to render 
his or her services to the same employer or a subsidiary or affiliate thereof, in a capacity that is managerial, 
executive, or involves specialized knowledge. 
The regulation at 8 C.F.R. 6 214,2(1)(l)(ii) states, in part: 
lt~tracornpcrny transferee means an alien who, within three years preceding the time of his or 
her application for admission into the United States, has been employed abroad continuously 
for one year by a firm or corporation or other legal entity or parent, branch, affiliate, or 
subsidiary thereof, and who seeks to enter the United States temporarily in order to render his 
or her services to a branch of the same employer or a parent, affiliate, or subsidiary thereof in 
a capacity that is managerial, executive, or involves specialized knowledge. 
The regulation at 8 C.F.R. 6 214.2(1)(3) states that an individual petition filed on Form 1-129 shall be 
accompanied by: 
(i) Evidence that the petitioner and the organization which employed or will employ the 
alien are qualifying organizations as defined in paragraph (l)(l)(ii)(G) of this section. 
(ii) Evidence that the alien will be employed in an executive. managerial, or specialized 
knowledge capacity, including a detailed description of the services to be performed. 
(iii) Evidence that the alien has at least one continuous year of full-time employment 
abroad with a qualifying organization within the three years preceding the filing of 
the petition. 
SRC 03 198 53696 
Page 3 
(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 hidher to perform the intended serves 
in the United States; however, the work in the United States need not be the same 
work which the alien performed abroad. 
The issue in this proceeding is whether the petitioner has established that the beneficiary's employment with 
the U.S. entity has been and will be primarily managerial or executive in nature. 
Section 101(a)(44)(A) of the Act, 8 U.S.C. 3 I I01 (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) 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 1 10l(a)(44)(B), provides: 
'The term "executive capacity" means an assignment within an organization in which the 
employee primarily- 
(1) 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 
SRC 03 198 53696 
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Receives only general supervision or direction from higher level 
executives, the board of directors, or stockholders of the 
organization. 
The petitioner initially stated in the petition that the beneficiary's responsibilities include overseeing the entire 
U.S. operation, procuring contracts for the company's personnel placement services, and hiring and firing 
empIoyees. 
The director requested that the petitioner submit: 
A. Copies of the State Quarterly Income Tax returns for the past year, which lists all 
employees by name. 
B. Organizational chart which lists all positions. 
C. Identifying photos of the office space for the beneficiary and of the business premises. 
D. List all employee positions and duties. 
E. List a11 of the beneficiary's specific duties and the percentage of time spent on each. 
In response to the director's request for additional evidence, the petitioner described the beneficiary's duties 
and the percentage of time he spends on them as: 
i Marketing of thservices to U.S. Based Clients: 
L Recruiting of Personnel to meet the needs of US Clients 25% 
Administration and Financial Management - 
'r Technology and Technical lnfrastructure Development 10% 
The petitioner also submitted photos of the premises used to house the U.S. entity, a copy of the U.S. entity's 
IRS Form 1120S, U.S. Income Tax Return for an S Corporation for the year 2002, a Memorandum of 
Agreement dated March 19, 2002, U.S. entity Articles of Incorporation and By-Laws, a company 
organizational chart, and a copy of the beneficiary's resume. In the beneficiary's resume he described his 
duties and responsibilities as: 
i Created and Implemented IT Training at the Retail and Corporate Market Segments. 
i Developed Overseas markets in Australia, US., [and] New Zealand & UK for special 
purpose Skills in IT, Health Care and Education. 
k Reviewed and Redesigned the Financial and Operating structure of the Corporation. 
i Developed and Implemented Special Purpose Training products using interactive 
methods. 
> Developed and Implemented Recruiting processes that provided value for money 
solutions to clients. 
SRC 03 198 53596 
Page 5 
i. Created the necessary Business processes to assist clients in Selecting and Employing 
Skilled Personnel in IT, Health Care and Education. 
> Managed the Product Development Process with respect to new Training Products 
using the Internet and Interactive Voice/Sound Effects. 
-. P Created a network of committed individuals to take the Recruiting and Placement 
Business to the next level. 
k Developed Special Purpose recruiting methodologies that would ensure client 
confidence and provide a seamless interface between overseas locations. 
The director denied the petition stating that the petitioner had failed to submit sufficient evidence to establish 
that the beneficiary had been or would be employed by the U.S. entity in a primarily managerial or executive 
capacity. The director noted the petitioner's failure to comply with the Request for Evidence. The director 
stated that the evidence showed the beneficiary spent 60 percent of his time marketing and 25 percent of his 
time recruiting personnel. The director concluded the beneficiary has been and would be primarily engaged 
in the day-to-day operations of the business itself rather than managing any professionals or managing 
subordinates. 
On appeal, counsel disagrees with the director's decision and asserts the beneficiary is employed by the U.S. 
entity in a managerial, executive, and specialized knowledge capacity. Counsel asserts the beneficiary perfoms 
managerial duties in that he manages the entire operation, and an essential function known as the "external 
business environment" of the organization. Counsel also asserts the beneficiary continues to hold executive 
positions such as chairman, managing director, and president abroad. Counsel contends the beneficiary performs 
executive duties in that he directs the management of the U.S. entity and all of thmgroup companies 
worldwide. Counsel further contends that the beneficiary, as an executive, establishes the goals and policies of 
the organization internationally, exercises wide latitude in discretionary decision-malung, receives only general 
direction from the board of directors, and exercises full executive authority. Counsel also contends the 
beneficiary retains direct supervisory authority over several employees abroad. 
Counsel's assertions are not persuasive. On reviewing the petition and the evidence, the petitioner has not 
established that the beneficiary has been and will be employed in a managerial or executive capacity. In 
evaluating whether the beneficiary is employed in a primarily managerial capacity, the AAO will look first to 
the petitioner's description of the beneficiary's job duties. See 8 C.F.R. 214.2(1)(3)(ii). The petitioner's 
description of the job duties must dearly describe the duties to be performed by the beneficiary and indicate 
whether such duties are either in an executive or managerial capacity. Id. In the instant matter, the record 
shows that the beneficiary was the sole employee of the U.S. entity at the time the petition was filed. The 
record also demonstrates that the beneficiary will perfom various job duties while employed by the U.S. 
entity. Here, the petitioner has failed to distinguish the beneficiary's role in the operation of its business. For 
example, the petitioner describes the beneficiary's duties as managerial in that he manages an essential 
function of the organization, executive in that he establishes company policies and goals and exercises a wide 
latitude in discretionary decision-making, and administrative in that he will be marketing the company's 
services to U.S. based clients. 
On review, the petitioner has provided a vague and nonspecific description of the beneficiary's duties that 
fails to demonstrate what the beneficiary does on a day-to-day basis. For example, the petitioner states that 
SRC 03 198 53696 
Page 6 
the beneficiary's duties include directing the management of the organization and establishing goals and 
policies. The petitioner did not, however, define the organization's goals and policies, nor clarify how the 
beneficiary directs the management of the U.S. entity. Going on record without supporting documentary 
evidence is not sufficient for purposes of meeting the burden of proof in these proceedings. Matter of 
Treasure CruJ cf Culfornia, 14 I&N Dec. 190 (Reg. Comm. 1972). 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 51-0s. Co., Ltif. v. Sava, 
724 F. Supp. 1 103 (E.D.N.Y. 1989), uff'if, 905 F.2d 41 (2d. Cir. 1990). 
Further, rather than providing a specific description of the beneficiary's duties, the petitioner generally 
paraphrased the statutory definition of executive capacity. See section IOl(a)(44)(A) of the Act, 
8U.S.C. 5 1101(a)(44)(A). For instance, the petitioner depicted the beneficiary as directing the entire 
operation of the organization, establishing goals and policies of the organization, and exercising sole 
discretionary decision-making. However, conclusory assertions regarding the beneficiary's employment 
capacity are not sufficient to meet the petitioner's burden of proof. Merely repeating the language of the 
statute or regulations does not satisfy the petitioner's burden of proof. Fedin Brs. Co., Ltd. v. Suva, supra.; 
Avyr Associute,~ Inc. v. Meissner, 1997 WL 188942 at *5 (S.D.N.Y .). 
In addition, the petitioner stated that the beneficiary spends 60 percent of his time marketing the company's 
services to 1J.S. based clients. Since the beneficiary spends the majority of his time actually marketing the 
petitioner's product, he is performing a task necessary to provide a service or product and this duty will not be 
considered managerial or executive in nature. 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. Mutter of Church Scientology Internutionul, 19 I&N Dec. 593,604 (Comm. 1988). 
Even though the petitioner claims that the beneficiary directs and manages the petitioner's external business 
environment, it does not claim to have anyone on its staff to actually perform the duties associated with such 
function. Thus, either the beneficiary himself is performing the duties associated with the petitioner's 
external business environment or he does not actually manage the function as claimed. In either case, the 
AAO is left to question the validity of the petitioner's claim and the remainder of the beneficiary's claimed 
duties. 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). 
In the request for evidence, the director requested that the petitioner submit copies of the State Quarterly 
Income Tax returns for the past year, which lists all employees by name, and a list of all employees' positions 
and duties. The petitioner failed to submit these documents in response. This evidence is critical, as it would 
have established the number of employees employed by the U.S. entity as well as the duties they perform. 
The purpose of the request for evidence is to elicit further information that clarifies whether eligibility for the 
benefit sought has been established, 8 C.F.R. $ 103.2(b)(8). The failure to submit requested evidence that 
precludes a material line of inquiry shall be grounds for denying the petition. 8 C.F.R. $ 103.2(b)(14). For 
this reason, the petition will not be approved. 
On review, the record as presently constituted is not persuasive in demonstrating that the beneficiary has been 
or will be employed in a primarily managerial or executive capacity. The petitioner infers throughout the 
record that it plans to hire additional managers and employees in the future. ln addition, the U.S. entity's 
organizational chart depicts proposed employee positions. However, the petitioner must establish eligibility 
SRC 03 198 53696 
Page 7 
at the time of filing the nonimmib~ant 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. 248 (Reg. Comm. 1978). Furthermore, 8 C.F.R. 6 214.2(1)(3)(v)(C) allows the intended United 
States operation one year within the date of approval of the petition to support an executive or managerial 
position. There is no provision in Citizenship and Immigration Services (CIS) regulations that allows for an 
extension of this one-year period. If the business is not sufficiently operational after one year, the petitioner is 
ineligible by regulation for an extension. In this matter, the petitioner has not reached the point that it can 
employ the beneficiary in a predominantly managerial or executive position. 
Finally, on appeal counsel contends the beneficiary has specialized knowledge through his work in India, 
Australia, and the United States, in setting business policies, business development, human resource 
management, and strategtc development. Counsel also contends that the beneficiary has established a set of 
business practices and procedures for thoup of companies that is proprietary to the success of the 
group of companies. CIS regulations affirmatively require a petitioner to establish eligibility for the benefit it 
is seeking at the time the petition is filed. See 8 C.F.R. 3 103.2(b)(12). If the petitioner believed that the 
beneficiary was eligible for this nonimmigrant visa classification as an employee who possessed specialized 
knowledge, the petitioner was required to request such classification when filing the petition. See Mutter of 
Michelin Tire Corp., supra. There are no statutory or regulatory provisions that allow a petitioner to select 
alternative classifications within a single petition. The AAO notes that, if the petitioner wishes to seek 
classification of the beneficiary as an L-1B intracompany transferee, the petitioner must file a new petition 
rather than seek approval of a petition that is not supported by the facts in the record. 
Beyond the decision of the director, the petitioner has not established that it is eligible for an extension of the 
initial one-year "new office" validity period. As previously noted, the regulation at 8 C.F.R. $ 214.2(1)(14)(ii) 
provides strict evidentiary requirements that the petitioner must satisfy prior to the approval of this extension 
petition. Upon review, the petitioner has not satisfied all of the enumerated evidentiary requirements. 
Although the petitioner claims that it has acquired sufficient physical premises to house the U.S. entity, a 
review of the color photographs submitted in response to the director's request for evidence demonstrates that 
the business premises is an apartment. There is no evidence to demonstrate that the beneficiary's apartment is 
sufficient in size and space, and complies with commercial zoning requirements. In review of the record, 
there is insufficient evidence to establish that the petitioner has secured sufficient physical premises to house 
the new office pursuant to 8 C.F.R. 4 214.2(1)(3)(v)(A). Furthermore, there is insufficient evidence to 
establish that the US, and foreip entities are doing business pursuant to the regulations at 
8 C.F.R. 9: 214,2(1)(14)(ii)(B). In this matter, the petitioner submitted as evidence of doing business a 
Memorandum of Agreement. A single memorandum of agreement is insufficient to demonstrate that the U.S. 
entity has been engaged in the regular, systematic, and continuous provision of goods and/or services. The 
petitioner claims that the beneficiary continues to spend time performing duties for the foreign entity and its 
affiliates abroad. There has been no evidence submitted to demonstrate that in the absence of the beneficiary, 
the foreign entity has been and will be able to continue doing business. For these additional reasons, the 
petition may 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 Enterprises, Inc. v. United States, 229 F.SLI~~.~"~ 1025, 1043 (E.D. Cal. 2001 ), aff'd. 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). 
SRC 03 198 53696 
Page 8 
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. 4 1361. The petitioner has not sustained that burden. 
ORDER: The appeal is dismissed.