dismissed L-1A Case: Poultry Farming

iddfvhg data dekbd ~o 
pmuenl dearly - 
: .td - 
U.S. Department of Homeland Security 
20 Massachusetts Ave., N.W., Rm. A3042 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
Services 
File: Office: TEXAS SERVICE CENTER Date: JiJk (t 1 2()()3 
Petition: Petition for a Nonimmigrant Worker Pursuant to Section 10l(a)(15)(L) of the Immigration 
and Nationality Act, 8 U.S.C. 9 1 101(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. 
P. Wiemann,  irei it or 
dministrative Appeals Office 
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 this nonimmigrant petition seeking to extend the employment of its President as an L-IA 
nonimmigrant intracompany transferee pursuant to section 101(a)(15)(L) of the Immigration and Nationality 
Act (the Act), 8 U.S.C. 8 1101(a)(15)(L). The petitioner is a corporation organized in the State of Texas that 
operates a poultry farm. The petitioner claims that it is the subsidiary of Comercial la Cadena, located in 
Caracas, Venezuela. The beneficiary was initially granted a one-year period of stay to open a new office in 
the United States and the petitioner now seeks to extend the beneficiary's stay. 
The director denied the petition concluding that the petitioner did not establish that the beneficiary will be 
employed in the United States in a primarily managerial or executive capacity. 
The petitioner subsequently filed an appeal. The director declined to treat the appeal as a motion and 
forwarded the appeal to the AAO for review. On appeal, counsel for the petitioner asserts that the beneficiary 
will be employed in a primarily managerial or executive capacity, and that the director erroneously relied on 
the petitioner's small staff size in denying the petition. In support of these assertions, counsel submits a brief. 
To establish eligibility for the L-1 nonimmigrant visa classification, the petitioner must meet the criteria 
outlined in section 10 1 (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. 5 214.2(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 
howledge 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 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. 9 214.2(1)(14)(ii) also provides that a visa petition, which involved the opening of a 
new office, may be extended by filing a new Form 1-129, accompanied by the following: 
(A) Evidence that the United States and foreign entities are still qualifying organizations 
as defined in paragraph (l)(l)(ii)(G) of this section; 
(B) Evidence that the United States entity has been doing business as defined in 
paragraph (l)(l)(ii)(H) of this section for the previous year; 
(C) A statement of the duties performed by the beneficiary for the previous year and the 
duties the beneficiary will perform under the extended petition; 
(D) A statement describing the staffing of the new operation, including the number of 
employees and types of positions held accompanied by evidence of wages paid to 
employees when the beneficiary will be employed in a management or executive 
capacity; and 
(E) Evidence of the financial status of the United States operation. 
The issue in the present matter is whether the beneficiary will be employed by the United States entity in a 
primarily managerial or executive capacity. 
Section 101(a)(44)(A) of the Act, 8 U.S.C. 3 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 
Page 4 
acting in a managerial capacity merely by virtue of the supervisor's supervisory 
duties unless the employees supervised are professional. 
Section lOl(a)(44)(B) of the Act, 8 U.S.C. 6 1 101 (a)(44)(B), defines the term "executive capacity" as an 
assignment within an organization in which the employee primarily: 
(i) directs the management of the organization or a major component or function of the 
organization; 
(ii) establishes the goals and policies of the organization, component, or function; 
(iii) exercises wide latitude in discretionary decision making; and 
(iv) receives only general supervision or direction from higher level executives, the board 
of directors, or stockholders of the organization. 
In the initial petition submitted on November 28, 2003, on Form 1-129 the petitioner stated that the 
beneficiary will "[e]stablish and organize the business, purchase land, negotiate contracts, hire and train 
workers, [and] operate the [petitioner's] poultry farm profitably." 
On January 14, 2004, the director requested additional evidence. In part, the director instructed the petitioner 
as follows: 
If there are other employees explain what their duties are and their education background. 
Explain how the beneficiary will not engage in the day to day operations of the business, and 
he will primarily be engaged in managerial or executive duties. 
Submit copies of the Employer's State Quarterly Tax Return with all the attachments for the 
past two quarters . . . . 
Submit 940 EZ Employers Annual Federal Unemployment Tax Return for [the petitioner]. 
In a response dated April 2, 2004, the petitioner indicated that it employs one individual in addition 1.0 the 
beneficiary in the position of "worker." The worker's duties include various tasks associated with operating 
the petitioner's poultry farm, such as adjusting water and feed lines, picking up dead chickens, and cleaning an 
incinerator. The petitioner further described the beneficiary's duties as follows: 
[The beneficiary] is responsible for the management of the farm. This entails: (1) 
administrative duties, (2) supervising and coordinating the activities of farm laborers; (3) 
keeping farm functioning according to Pilgrims' standards; (4) and maintaining equipment 
and facilities on poultry farm. 
Page 5 
On April 20, 2004, the director denied the petition. The director determined that the petitioner did not 
establish that the beneficiary will be employed in the United States in a primarily managerial or executive 
capacity. Specifically, the director stated that "[tlhe petitioner has not established that the beneficiary will not 
engage in the day to day operations of the business." The director provided that "[tlhe record does not 
support a finding that the [beneficiary] will be supervising [a] subordinate staff of professional, managerial, or 
supervisory personnel who will relieve the beneficiary from performing non-qualifying duties." 
Duties 
I. Administration management duties. This includes: developing and 
monitoring budget, expenses, status of supplies and mortality control 
2. Training, coordinating, and supervising activities of farm workers 
3. Responsible for appropriate functioning of equipment and for 
maintenance of farm facilities. This includes causing the service 
provider to fix or adjust the equipment, monitoring the maintenance 
service company (Acker Poultry Supply) 
4. Meeting with Pilgrims' technical representative (three times a 
week) 
5. Meeting with the Dallas Complex Manager of Pilgrim's [sic] 
(twice a month) 
6. Meeting with the Poultry Association in Pittsburgh, TX (once 
a month) 
7. Adjust computers and equipment according to weather 
conditions 
8. Research weather forecast 
9. Researching on poultry issues and keeping aware of 
production trends and state-of-the-art production techniques 
On appeal, counsel asserts that the beneficiary will be employed in a primarily managerial or executive 
capacity. Counsel provides that "because the [petitioner's] business is essentially automated, the day-to-day 
operations are run by computers and machines, not by the beneficiary." Counsel states that the director 
erroneously relied on the petitioner's small staff size in denying the petition. Counsel asserts that "the 
regulations do not require the beneficiary to manage other managers or professionals." Counsel states that "a 
beneficiary may qualify as an intracompany transferee in a managerial capacity if he or she supervises a 
function, and not necessary [sic] other people." Counsel states that the beneficiary satisfies the requirements 
Time % 
19% 
25% 
16% 
13% 
5% 
3% 
7% 
1% 
11% 
of an executive, and that "implementation of corporate functions may be carried 
out by agents and contractors." Counsel cites a memorandum fro Associate Commissioner 
of the former Immigration and Naturalization Service and an 
proposition that a beneficiary is not required to supervise subordinates in order to qualify as a manager or 
executive. 
Upon review, counsel's assertions are not persuasive. When examining the executive or managerial capacity 
of the beneficiary, the AAO will look first to the petitioner's description of the job duties. See 8 C.F.R. 
214.2(1)(3)(). The petitioner's description of the job duties must clearly describe the duties to be 
Page 6 
performed by the beneficiary and indicate whether such duties are either in an executive or managerial 
capacity. Id. The petitioner must specifically state whether the beneficiary is primarily employed in a 
managerial or executive capacity. In the instant matter, counsel asserts that the beneficiary qualifies as both a 
manager and an executive. To sustain an assertion that the beneficiary will be primarily employed in both 
capacities, the petitioner must establish that the beneficiary meets each of the four criteria set forth in the 
statutory definition for executive duties under section 101(a)(44)(B) of the Act, and the statutory definition 
for managerial duties under section 101(a)(44)(A) of the Act. At a minimum, the petitioner must establish 
that the beneficiary is primarily employed in one or the other capacity. See 8 C.F.R. $ 214.2(1)(3)(ii). 
The job descriptions provided for the beneficiary do not establish that he will be employed in a primarily 
managerial or executive capacity. The beneficiary's duties include many non-qualifying tasks. For example, 
the petitioner stated that the beneficiary will be "[rlesponsible for appropriate functioning of equipment and 
for maintenance of farm facilities." Though the petitioner indicated that the beneficiary will "caus[e] the 
service provider to fix or adjust the equipment" and "[monitor] the maintenance service company," the job 
description reflects that the beneficiary will personally inspect the equipment of the farm, which is a non- 
qualifying task. The petitioner provided that the beneficiary will "[aldjust computers and equipment 
according to weather conditions," which is not a managerial or executive duty. The petitioner stated that the 
beneficiary will "[rlesearch weather forecast[s]," yet this does not constitute a qualifying task. The petitioner 
indicated that the beneficiary will devote a combined 24 percent of his time to these non-managerial and non- 
executive duties. 
The petitioner provided that the beneficiary will be responsible for "developing and monitoring budget, 
expenses, status of supplies and mortality control." However, these tasks are described with brief and vague 
language, providing little insight into the true nature of the tasks the beneficiary will perform in the United 
States. Specifics are clearly an important indication of whether a beneficiary's duties are primarily executive 
or managerial in nature, otherwise meeting the definitions would simply be a matter of reiterating the 
regulations. Fedin Bros. Co., Ltd. v. Suva, 724 F. Supp. 1 103 (E.D.N.Y. 1989), aSfh: 905 F.2d 41 (2d. Cir. 
1990). The actual duties themselves reveal the true nature of the employment. Id. While the petitioner stated 
that the beneficiary will devote 19 percent of his time to these duties, the provided descriptions do not allow 
the AAO to determine the actual tasks that the beneficiary will perform within this category, such that they 
can be classified as managerial or executive in nature. 
The petitioner stated that the beneficiary will devote 25 percent of his time to "[tlraining, coordinating, and 
supervising activities of farm workers." However, the petitioner has failed to document that it employs any 
workers other than the beneficiary. The petitioner claims that it employs a worker. In her request for 
evidence, the director requested "copies of the [petitioner's] Employer's State Quarterly Tax Return with all 
the attachments for the past two quarters" and a copy of the petitioner's "[Form] 940 EZ Employers Annual 
Federal Unemployment Tax Return." Yet, the petitioner failed to submit these documents that would have 
reflected its staffing during the covered periods. The regulation states that the petitioner shall submit 
additional evidence as the director, in his or her discretion, may deem necessary. The purpose of the request 
for evidence is to elicit further information that clarifies whether eligibility for the benefit sought has been 
established, as of the time the petition is filed. See 8 C.F.R. $9 103.2(b)(8) and (12). The 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 petitioner has provided no other independent documentation to support that it employs 
additional workers. Going on record without supporting documentary evidence is not sufficient for purposes 
of meeting the burden of proof in these proceedings. Matter of SofJici, 22 I&N Dec. 158, 165 (Comm. 1998) 
(citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm. 1972)). Thus, the petitioner 
has failed to show that the beneficiary in fact "[trains], coordinate[es], and supervise[es] activities of farm 
workers." Therefore, the petitioner's statement that the beneficiary devotes 25 percent of his time to these 
duties is not deemed an accurate account of his true tasks. 
Accordingly, as much as 68 percent of the beneficiary's time has not been shown to be devoted to managerial 
or executive duties. Thus, the job descriptions fail to establish that the beneficiary will be primarily employed 
in a managerial or executive capacity. See 8 C.F.R. 8 214.2(1)(3)(ii). 
Counsel cites a memorandum from ssociate Commissioner of the former Immigration and 
Naturalization Service and an unpublished AAO decision to stand for the proposition that a beneficiary is not 
required to supervise subordinates in order to qualify as a manager or executive. In the unpublished decision, 
the AAO determined that the beneficiary met the requirements of serving in a managerial and executive 
capacity for L-1 classification even though he was the sole employee. Counsel has furnished no evidence to 
establish that the facts of the instant petition are analogous to those in the cited matter. Again, 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. at 165. Furthermore, while 8 C.F.R. 8 103.3(c) provides 
that AAO precedent decisions are binding on all CIS employees in the administration of the Act, unpublished 
decisions are not similarly binding. 
Yet, counsel correctly observes that a company's size alone may not be the determining factor in denying a 
visa to a multinational manager or executive. See section 101(a)(44)(C), 8 U.S.C. 1 101(a)(44)(C). 
Pursuant to section 101(a)(44)(C) of the Act, 8 U.S.C. fj 1101(a)(44)(C), if staffing levels are used as a factor 
in determining whether an individual is acting in a managerial or executive capacity, CIS must take into 
account the reasonable needs of the organization, in light of the overall purpose and stage of development of 
the organization. In the present matter, however, the regulations provide strict evidentiary requirements for 
the extension of a "new office" petition and require CIS to examine the organizational structure and staffing 
levels of the petitioner. See 8 C.F.R. tj 214.2(1)(14)(ii)(D). The regulation at 8 C.F.R. tj 214.2(1)(3)(v)(C) 
allows the "new office" operation one year within the date of approval of the petition to support an executive 
or managerial position. There is no provision in CIS regulations that allows for an extension of this one-year 
period. If the business does not have sufficient staffing after one year to relieve the beneficiary from 
primarily performing operational and administrative tasks, the petitioner is ineligible by regulation for an 
extension. 
In the instant matter, the petitioner operates a poultry farm. Thus, it is evident that the reasonable needs of the 
petitioner require its employees to perform numerous non-managerial and non-executive tasks such as feeding 
chickens, cleaning chicken houses and disposing of waste, operating and cleaning an incinerator, preparing 
and administering medication to chickens, monitoring farm equipment, placing orders for goods, tracking the 
petitioner's inventory of supplies, managing a checking account and paying bills, receiving deliveries, and 
conducting purchase and sales transactions. As the beneficiary is the sole documented employee of' the 
Page 8 
petitioner, the evidence of record reflects that he must perform all of these non-qualifying tasks. While the 
petitioner states that machines and computers perform the day-to-day tasks of the farm, it has failed to 
adequately explain how the above duties do not require substantial human involvement. Again, 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. at 165. Thus, the reasonable needs of the petitioner 
suggest that the beneficiary must spend a significant amount of time performing the tasks necessary to 
provide the petitioner's products. An employee who primarily performs the tasks necessary to produce a 
product or to provide services is not considered to be employed in a managerial or executive capacity. Matter 
of Church Scientology International, 19 I&N Dec. 593, 604 (Comm. 1988). The petitioner has failed to 
establish that these non-managerial and non-executive tasks do not constitute the majority of the beneficiary's 
time. See 8 C.F.R. 5 214.2(1)(3)(ii). 
The record is not persuasive in demonstrating that the beneficiary has been or will be employed in a primarily 
managerial or executive capacity. As noted above, the regulation at 8 C.F.R. 9 214.2(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 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 the instant matter, the petitioner has not established that it has reached the point that it 
can employ the beneficiary in a predominantly managerial or executive position. 
Accordingly, the petitioner has not established that the beneficiary will be employed in a primarily managerial 
or executive capacity, as required by 8 C.F.R. 9 214.2(1)(3)(ii). For this reason, the appeal will be dismissed. 
Beyond the decision of the director, the petitioner has not established that it has a qualifying relationship with 
the beneficiary's foreign employer as required by 8 C.F.R. 3 214.2(1)(l)(ii)(G), as the petitioner has failed to 
establish that the foreign entity is a qualifying organization engaged in the regular, systematic, and continuous 
provision of goods andlor services pursuant to 8 C.F.R. 5 214.2(1)(l)(ii)(H). The regulation at 8 C.F.R. 
3 214.2(l)(ii)(G)(2) reflects that, in order for an entity to be considered a qualifying organization, the 
petitioner must show that it: 
Is or will be doing business (engaging in international trade is not required) as an employer in 
the United States and 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 . . . . 
The regulation at 8 C.F.R. 9 214.2(l)(ii)(H) defines the term "doing business" as: 
[Tlhe regular, systematic, and continuous provision of goods and/or services by a qualifying 
organization and does not include the mere presence of an agent or office of the qualifying 
organization in the United States and abroad. 
The regulation at 8 C.F.R. 3 214.2(1)(14)(ii)(A) requires the petitioner to submit "[elvidenee that the United 
States and foreign entities are still qualifying organizations." In her request for evidence, the director 
requested "sale invoices, utility bills, etc.. . to show the foreign company is currently conducting business." 
The petitioner submitted invoices that were all dated after the date of filing 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 or beneficiary becomes eligible under a new set of facts. Matter of 
Michelin Tire Corp., 17 I&N Dec. 248 (Reg. Comm. 1978). The foreign entity's invoices dated after the date 
of filing are not probative of the petitioner's eligibility as of the filing date. The petitioner prov~ded an 
untranslated document as evidence of the foreign entity's business activity. Because the petitioner failed to 
submit a certified translation of the document, the AAO cannot determine whether the evidence supports the 
petitioner's claims. See 8 C.F.R. 5 103.2(b)(3). Accordingly, the evidence is not probatlve and will not be 
accorded any weight in this proceeding. 
The only evidence the petitioner submitted to show that the foreign entity continues to do business consists of 
an agreement, dated June 23, 2003, under which the American Embassy in Caracas sought to establish plces 
for various hardware to be purchased from the foreign entity. Yet, the agreement does not create contractual 
obligations for the Embassy to purchase from the foreign entity, and the petitioner submitted no 
documentation that hardware was actually purchased pursuant to the agreement. Thus, this document does 
not serve as sufficient evidence that the foreign entity was engaged in "the regular, systematic, and continuous 
provision of goods andlor services." See 8 C.F.R. 5 214.2(l)(ii)(H). The petitioner has failed to show that the 
foreign entity is a qualifying organization. See 8 C.F.R. 3 214.2(l)(ii)(G)(2). 
It is further noted that counsel's statement that "the company ownership and relationships remain the same, so 
I have not submitted anything additional regarding those details" is not sufficient to establish the claimed 
parent-subsidiary relationship. The regulation at 8 C.F.R. 5 2 14.2(1 )(14)(ii)(A) requires the petitioner to 
submit evidence to show that it and the foreign entity still qualifying organizations. The petitioner has failed 
to meet this burden. Accordingly, the petitioner has not established that it has a qualifying relationship with 
the foreign entity. See 8 C.F.R. 5 214.2(1)(14)(ii)(A). For this additional reason, the appeal will be dismissed. 
An application or petition that fails to comply with the technical requirements of the law may be denied by 
the AAO even if the Service Center does not identify all of the grounds for denial in the initial decision. See 
Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 2001), afyd. 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). 
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. Accordingly, the 
director's decision will be affirmed and the petition will be denied. 
ORDER: The appeal is dismissed.