dismissed L-1A Case: Printing Services

U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. A3042 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
Services 
FILE: Office: TEXAS SERVICE CENTER Date: 0 1 
IN RE: Petitioner: 
Beneficiary: 
PETITION: Petition for a Nonirnmigrant Worker Pursuant to Section 101(a)(15)(L) of the 
Immigration and Nationality Act, 8 U.S.C. 1 101(a)(15)(L) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Office in your case. All documents have been 
returned to the office that originally decided your case. Any further inquiry must be made to that 
office. 
obert P. Wiemann, D' ector 1- f 
Administrative Appeals Office 
DISCUSSION: The nonimmigrant visa petition was denied by the Director, Texas Service 
Center, and is now before the Administrative Appeals Office (AAO) on appeal. The appeal will 
be dismissed. 
The ptitioner endeavors to classify the beneficiary as a nonimmigrant 
manager or executive pursuant to section 101(a)(15)(L) of the Immigration and Nationality Act 
(the Act). 8 U.S.C. 5 1 IOl(a)(lS)(L). The petitioner claims to be a subsidiary of - 
located in Pakistan. The petitioner is engaged in the printing services business. The initial petition 
was approved to allow the petitioner to open a new office. It seeks to extend the petition's validity 
and the beneficiary's stay for two years as the U.S. entity's vice president and secretary. The 
petitioner was incorporated in the State of Texas in August 2001 and claims to have one 
employee.' 
On March 17, 2003, the director denied the petition and determined that the petitioner had not 
established that the beneficiary will be primarily performing duties in a managerial capacity. 
On appeal, the petitioner's counsel states that the beneficiary "serves in a manageriaVexecutive 
capacity" and claims that the U.S. company employs sufficient staff to relieve the beneficiary 
from performing nonqualifying duties. Counsel submits a brief and additional evidence in 
support of the appeal. 
To establish L-1 eligibility under section 101(a)(15)(L) of the Act, the petitioner must meet 
certain criteria. Specifically, within three years preceding the beneficiary's application for 
admission into the United States, a qualifying organization must have employed the beneficiary in 
a qualifying managerial or executive capacity, or in a specialized knowledge capacity, for one 
continuous year. Furthermore, 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. 
1 The petitioner indicated that the current number of employees is one to four estimated. 
However, a visa petition may not be approved based on speculation of future eligibility or after 
the petitioner becomes eligible under a new set of facts. See Matter of Michelin Tire Corp., 17 
I&N Dec. 248 (Reg. Comrn. 1978); Matter of Katigbak, 14 I&N Dec. 45,49 (Comrn. 1971). In 
addition, the Employer's Quarterly Report for the quarter ending December 31, 2002 shows that 
the petitioner employs three individuals. The petitioner submitted this report in response to the 
director's request for additional evidence on November 21, 2002 and the report is dated after the 
time of filing on October 22, 2002. The petitioner also submitted its Employer's Quarterly 
Federal Tax Return indicating that there was one employee in the pay period for the quarter 
ending December 31, 2002. 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). 
In relevant part, the regulations at 8 C.F.R. 9 214.2(1)(3) state 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. 
Further, the regulations at 8 C.F.R. 9 214.2{1)(14)(ii) require that a visa petition under section 
101(a)(15)(L) of the Act 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 (I)(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 perfonn 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 managerial or 
executive capacity; and 
(E) Evidence of the financial status of the United States operation. 
The issue in this proceeding is whether the beneficiary will be primarily performing managerial 
or executive duties for the United States entity. Section 101(a)(44)(A) of the Act, 8 U.S.C. 
5 1 101 (a)(#)(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; 
SRC 03 01 1 5031 1 
Page 4 
(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 lOl(a)(#)(B) of the Act, 8 U.S.C. Q 1 IOl(a)(44)(B), provides: 
The term "executive capacity" means an assignment within an organization in which the 
employee primarily- 
(i.) directs the management of the organization or a major component or function 
of the organization; 
(ii.) establishes the goals and policies of the organization, component, or function; 
(iii.) exercises wide latitude in discretionary decision-making; and 
(iv.) receives only general supervision or direction from higher level executives, 
the board of directors, or stockholders of the organization. 
On October 21, 2002, the petitioner filed Form 1-129. In an addendum to the Form 1-129, the 
beneficiary's proposed duties are described as: 
Direct and coordinate activities of the organization and formulate and administer 
company policies: In consultation with the management and the Pakistani 
Company develop long-range goals and objectives of the company. Be 
responsible for corporate planning, general administration, marketing-sales and 
purchasing activities for the subsidiary. Direct and coordinate activities of 
managers and employees in the production, operations, purchasing and marketing 
departments for which responsibility is delegated for further attainment of goals 
and objectives. Review and analyze activities, costs, operations, and forecast data 
to determine progress toward stated goals and objectives. Review with 
management and employees company's achievements and discuss required 
changes in goals or objectives of the company. 
In addition, on the Form 1-129, the petitioner indicated its number of employees as "I and 
4 estimated." 
On November 21, 2002, the director requested additional evidence. In particular, the director 
requested the number of employees working for the U.S. entity, their job titles and evidence, such 
as the most recent quarterly tax return to establish that these employees are receiving a salary. 
In response to the request for additional evidence, the petitioner submitted a copy of the its 
Employer's Quarterly Report for the fourth quarter of 2002; Form 941' Employer's Quarterly 
Federal Tax Return for the fourth quarter of 2002; Form 940-EZ, Forms W-2, Wage and Tax 
Statement; and Form W-3, Transmittal of Wage and Tax Statement for 2002. The petitioner also 
submitted a copy of the U.S. company's organizational chart showing seven employees. Three of 
these employees received wages in the fourth quarter of 2002. Their job titles are "productionl 
quality control," "marketing," and "graphic design." 
On March 17, 2003, the director denied the petition and determined that the petitioner had not 
established that the beneficiary will be primarily performing duties in a managerial or executive 
capacity. The director found that there were inconsistencies in the record concerning the number 
of workers the U.S. entity employs and that the majority of the beneficiary's time would be spent 
in the non-managerial, day-today operations of the business. 
On appeal, counsel states that the beneficiary "serves in a manageriaVexecutive capacity" and 
"does not perform any of the tasks necessary to provide the services of the organization." Counsel 
further describes the beneficiary's proposed U.S. duties as: 
(i) Make decisions regarding the expansion of the business, including 
manner, type and additional locations. 
(ii) Liaise with financial institutions to explore obtaining venture financing 
for expansion. 
(iii) Liaise with external accountants/auditors to ensure compliance with 
applicable financial requirements. 
(iv) Liaise with parent company to answer any queries and forward 
appropriate reports to parent company. 
(v) Ensure through subordinate managers that company policies are being 
implemented 
(vi) Oversee management and other employees. 
(vii) Direct and coordinate activities of the organization and formulate and 
administer company policies. 
(viii) Review and analyze activities, costs, operations and purchasing. 
In examining the executive or managerial capacity of the beneficiary. the AAO wiil look first to 
the description of the beneficiary's U.S. job duties. See 8 C.F.R. @ 214.2(1)(3)(ii). In this matter, 
the petitioner does not clarify whether the beneficiary is claiming to be primarily engaged in 
managerial duties under section 101(a)(44)(A) of the Act, or primarily executive duties under 
section lOl(a)(44)(B) of the Act. A beneficiary may not claim to be employed as a hybrid 
"executive/rnanager" and rely on partial sections of the two statutory definitions. A petitioner 
must establish that a beneficiary meets each of the four criteria set forth in the statutory definition 
for executive and the statutory definition for manager if it is representing the beneficiary is both 
an executive and a manager. 
On review, the petitioner has not established that the beneficiary will be employed in a primarily 
managerial and executive capacity. The petitioner has provided a vague description of the 
beneficiary's duties that fails to describe exactly what the beneficiary will be doing on a daily 
basis. For example, the petitioner states that the beneficiary's duties include "develop[ing] long- 
range goals and objectives of the company," "[dlirect and coordinate activities of managers," and 
"formulate and administer company poiicies." However, it is unclear what long-range policies the 
beneficiary will develop or formulate and what "managers" the beneficiary wilI direct. Going on 
record without supporting documentary evidence is not sufficient for purposes of meeting the 
burden of proof in these proceedings. Matter of Soffici, 22 I&N Dec. 158, 165 (Comm. 1998) 
(citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comrn. 1972)). 
In addition, the petitioner claims that the beneficiary's U.S. duties include tasks such as "direct 
and coordinate activities of managers and employees in the production, operations, purchasing 
and marketing departments for which responsibility is delegated for further attainment of goals 
and objectives." However, the record does not indicate who actually comprises the marketing 
and purchasing departments or who will perform these lower level tasks. Therefore, although the 
petitioner claims that the beneficiary will "direct and coordinate activities of managers and 
employees," it is evident from the record that the beneficiary actually performs the operational 
tasks that he has been assigned to direct. 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 Scienrology International, 19 I&N Dec. 593, 
604 (Comm. 1988). 
Moreover, the record does not sufficiently demonstrate that the beneficiary will manage a 
subordinate staff of professional, managerial, or supervisory personnel. On appeal, counsel claims 
that the beneficiary will "[olversee management and other employees." However, it is uncertain 
how many employees the petitioner actually employs or if there were any subordinate employees 
at the time of filing. The petition was signed on October 10,2002 and the petitioner indicated that 
it had one employee and "estimated" having four employees. Based on the Texas Employer's 
Quarterly Report, the petitioner hired three part-time workers during the Iast three months of 
2002; however, there is insufficient evidence to establish that any of them were hired prior to the 
filing of the instant 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. Comrn. 1978). Regardless, the petitioner did not adequately 
describe the petitioner's staffing at the rime of filing, or the types of positions held by its 
employees, if any, as required by 8 C.F.R. 5 214.2(1)(14)(ii)(D). Going on record without 
supporting documentary evidence is not sufficient for purposes of meeting the burden of proof in 
these proceedings. Matter of Sofici, 22 I&N Dec. 158, 165 (Comm. 1998) (citing Matter of 
Treasure Crafr of California, 14 I&N Dec. 190 (Reg. Comrn. 1972)). Since the petitioner has not 
established that the beneficiary has had any subordinates at the time of filing, the AAO must 
conclude that he was performing all of the production, design. printing, sales, and marketing tasks 
of the company and that these non-qualifying tasks were his primary duties. The actual duties 
themselves reveal the true nature of the employment. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 
1103, 1108 (E.D.N.Y. 1989), afd, 905 F.2d41 (2d. Cir. 1990). 
Finally, 8 C.F.R. 8 214.2(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. At the time of 
filing, the petitioner had not reached the point that it can employ the beneficiary in a 
predominantly managerial or executive position. After careful consideration of the evidence, the 
AAO concludes that the beneficiary will not be employed in a primarily managerial or executive 
capacity. For this reason, the petition may not be approved. 
Beyond the decision of the director, the AAO is not persuaded that the beneficiary has been 
employed in a managerial or executive capacity abroad as defined at section 101(a)(44) of the 
Act. As previously stated to established L-1 eligibility under section 101(a)(15)(L) of the Act, 
the petitioner must submit evidence that within three years preceding the beneficiary's application 
for admission into the United States, the foreign organization employed the beneficiary in a 
qualifying managerial or executive capacity, or in a specialized knowledge capacity, for one 
continuous year. Id. The petitioner has submitted insufficient evidence to establish that the 
beneficiary's employment abroad was of a qualifying nature. For instance, the beneficiary's 
foreign duties are described as "conducting general administration affairs of the company," 
"developed long range goals and objectives of the company," and "engaging in long-range 
planning and identifying business opportunities in the U.S." However, this description is vague 
and it is unclear what affairs of the company the beneficiary conducts or what goals the 
beneficiary has developed. Again, going on record without supporting documentary evidence is 
not sufficient for purposes of meeting the burden of proof in these proceedings. Matter of Sofici, 
22 I&N Dec. 158, 165 (Comm. 1998) (citing Matter of Treasure Crafi of California, 14 I&N 
Dec. 190 (Reg. Comm. 1972)). For this additional reason, the petition may not be approved. 
Another issue beyond the decision of the director is whether the petitioner had been doing 
business for the previous year. The record does not contain sufficient evidence that the petitioner 
has been engaged in the regular, systematic, and continuous provision of goods and/or services in 
the United States for the entire year prior to filing the petition to extend the beneficiary's status. 
The petitioner submitted no documentation to establish that it has been selling its goods on a 
regular basis. The record incIudes evidence that the petitioner began purchasing supplies and 
equipment for a printing business beginning in August 2002, and the petitioner indicated in its 
October 11, 2002 letter that the company "has already started taking the necessary steps to 
conduct business." However, it is not evident that the petitioner was even operational at the time 
of filing. Thus, pursuant to the regulation at 8 C.F.R. 5 214.2(1)(14)(ii)(B), the petitioner is 
expected to submit evidence that it has been doing business since the date of the approval of the 
initial petition. Ln the instant case, there is no evidence that the petitioner was doing business 
from October 2001 through October of 2002. The petitioner also failed to provide evidence of 
the financial status of the U.S. company, as required by 8 C.F.R. 8 214.2(1)(14)(ii)(E). 
In addition, the petitioner indicates that the beneficiary is the sole proprietor of the foreign 
company, and which in turn owns the U.S. company. If this fact is established, it remains to be 
determined that the beneficiary's services are for a temporary period. The regulation at 8 C.F.R. 
§ 214.2(1)(3)(vii) states that if the beneficiary is an owner or major stockholder of the company, 
the petition must be accompanied by evidence that the beneficiary's services are to be used for a 
temporary period and that the beneficiary will be transferred to an assignment abroad upon the 
completion of the temporary services in the United States. In the absence of persuasive evidence, 
it cannot be concluded that the beneficiary's services are to be used temporarily or that he will be 
transferred to an assignment abroad upon completion of his services in the United States. For 
these additional reasons the petition may not be approved. 
Finally, beyond the decision of the director, the record reflects that the petitioner did not file the 
petition for an extension within the required time frame. The regulation at 8 C.F.R. $ 
214.2(1)(14)(i) provides, in pertinent part, that a petition extension may be filed only if the 
validity of the original petition has not expired. In the present case, the beneficiary's authorized 
period of stay expired on October 14, 2002. However, the petition for an extension of the 
beneficiary's L-1A status was filed on October 21, 2002, almost seven days following the 
expiration of the beneficiary's status. Pursuant to 8 C.F.R. $ 214,l(c)(4), an extension of stay 
may not be approved for an applicant who failed to maintain the previously accorded status or 
where such status expired before the application or petition was filed. As the extension petition 
was not timely filed, it is noted for the record that the beneficiary is ineligible for an extension of 
stay in the United States. 
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, I043 
(E.D. Ca!. 2001), affd. 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. 5 1361. Here, that burden has not 
been met. Accordingly, the appeal will be dismissed. 
ORDER: The appeal is dismissed.