dismissed L-1A Case: Property Development

U.S. Department of Homeland Security 
20 Mass, Rm. A3042,425 1 Street, N.W. 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
File: WAC 03 075 5 1 138 Office: CALIFORNIA SERVICE CENTER Date: FEB 1 5 2005 
Petition: Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(15)(L) of the Immigration 
and Nationality Act, 8 U.S.C. 9 1 101(a)(15)(L) 
INSTRUCTIONS : 
This is the decision of the Administrative Appeals Office in your case. A11 documents have been returned to 
the office that originally decided your case. Any further inquiry must be made to that office. 
Robert P. Wiemann, Director 
Administrative Appeals Office 
WAC 03 075 51138 
Page 2 
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 extend the employment of its president 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 California 
agency and property development. The petitioner claims that it is a 
subsidiary o located in Mumbai, India. 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 would 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 both that the 
beneficiary is performing job duties of an executive nature and that the beneficiary qualifies as a "function 
manager." Counsel also asserts that the U.S. entity is in the process of expanding and hiring full-time 
employees and that it is diversifying. In support of this last assertion, the petitioner submits additional 
evidence. 
To establish eligibility for the L-1 nonimmigrant visa classification, the petitioner must meet the criteria 
outlined in section 101(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. 4 214.2(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. 
WAC 03 075 51138 
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 
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. 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 0rganizatio.n~ 
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 i:o 
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. 
At issue in this proceeding is whether the beneficiary would 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. 9 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 
WAC 03 075 51 138 
Page 4 
(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. Cj 1101(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 a letter dated October 15,2002, submitted with the initial petition, the petitioner described the beneficiary's 
job duties as follows: 
Direct and coordinate activities of the U.S. Corporation. Formulate and administer 
organizational policies; Participate [sic] in formulating and administering company po1icie:s 
and developing long range goals and objectives; Direct [sic] and coordinate activities of the 
company for which responsibility is delegated to further attainment of goals and objectives. 
Review analyses of activities, cost, operation ad forecast data and objectives. Negotiate the 
contracts with the vendors and the customers. Do market research to look into diversifying 
the business. 
On April 3, 2003, the director requested additional evidence. Specifically, the director requested a more 
detailed description of the beneficiary's duties in the U.S., which should indicate percentage of time spent in 
each of the listed duties and all employees under the beneficiary's direction, including their job titles and 
position description. The director also requested an organization chart identifying the names and positions of 
all current employees of the U.S. entity, and specifically, all employees under the beneficiary's direction with 
a brief description of their job duties, educational levels, annual salarieslwages, and immigration status. The 
director also requested that the petitioner submit its federal and state quarterly wage reports for the East three 
quarters, payroll summary, federal and state income tax returns for the last two tax years, and the annual 
report of the foreign company. 
In response, the petitioner submitted the following description of the beneficiary's job duties in the U.S. 
entity: 
WAC 03 075 51 138 
Page 5 
[The beneficiary] is President of the U.S. Company and is responsible for overall 
management, operation, and administration of the business. He oversees the Gen. Manager. 
Gen. Manager oversees the Marketing & sales Manger [sic], Export/Import Manager, and 
will oversee the Property Manager. 
a. He directs and coordinates activities of the U.S. Corporation related to the business 
development. Oversee the travel agency and the exportlimport, and Property 
Management business [sic] 25% 
b. He coordinate the finance [sic] and formulate and administer organization policies; 
Participate [sic] in formulating and administering company policies and developing long 
range goals and objectives; 20% 
c. He studies the market for new venture. Do market research to look into diversifying the 
business. 15% 
d. Meet the vendors; negotiate the contracts with the vendors and the customers. 20% 
e. Review the property agreements, and follow up with escrow and management companies. 
Make profitable deals. Hire Management team to manage the properties purchased. 
Oversee the management team. 20% 
The petitioner also submitted an organizational chart showing that the U.S. entity has four employees. In 
addition to the beneficiary, the chart reflects a business/operations manager, a marketing/sales manager, and 
an exportlimport manager. The position of property management manager appeared to be vaciint. The 
petitioner indicated that all employees are salaried and have bachelor's degrees. However, the petitioner did 
not include any description of the job duties of the beneficiary's subordinates, as the director requested. 
On August 4, 2003, the director denied the petition. The director determined that given the duties of the 
beneficiary and the employees he supervises and the wages they make, it does not appear that the beneficiary 
is performing managerial or executive duties. Specifically, the director found that less than half of the 
beneficiary's duties as described represent qualified managerial duties. The director also noted that the other 
employees of the U.S. entity, who have managerial titles, are not presented as having any particular fi~nctional 
duties. Further, the director found the evidence does not establish that the beneficiary has been or will be 
managing a subordinate staff of professional, managerial, or supervisory personnel who will relieve him from 
performing non-qualifying duties. Finally, the director found there is no indication that the beneficiary will 
exercise significant authority over generalized policy, or that the beneficiary has been or will be functioning 
at a senior level within the organizational hierarchy other than in position title. The director concluded the 
evidence presented by the petitioner is insufficient to establish that the beneficiary has been or will be 
employed in a primarily managerial or executive capacity. 
On appeal, counsel for the petitioner asserts that the beneficiary is performing job duties of an executive 
nature. Counsel also asserts that the beneficiary is a function manager. In support of this assertion, counsel 
WAC 03 075 51 138 
Page 6 
repeats the description of job duties previously submitted to the director, and points out that it has not been 
stated in the job description that the beneficiary will spend time supervising the managers. Finally, counsel 
asserts that the wages paid by the U.S. entity are low because the managers working under the beneficiary are 
employed on a part-time basis, and that the U.S. entity is in the process of expanding and hiring full-time 
employees. 
On review, the AAO finds that the record as presently constituted is not persuasive in demonsbating that the 
beneficiary has been or will be employed in a primarily managerial or executive capacity. When examining 
the executive or managerial capacity of the beneficiary, the AAO will look first to the petitioner's description 
of the job duties. See 8 C.F.R. 4 214.2(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 in either an 
executive or a managerial capacity. Id. The petitioner must specifically state whether the beneficiary is 
primarily employed in a managerial or executive capacity. A beneficiary may not claim to be employed as a 
hybrid "executive/manager" and rely on partial sections of the two statutory definitions. 
It is noted that the petitioner did not specify in the petition and supplementary materials whether the 
beneficiary would be functioning primarily in a management or executive capacity. On appeal, counsel 
appears to claim that the beneficiary hnctions in both capacities. With respect to the executive na1;ure of the 
beneficiary's duties, however, counsel merely paraphrased the statutory definition of executive capacity rather 
than providing a sufficiently specific description of the beneficiary's duties. See section lOl(a)(44)(A) of the 
Act, 8 U.S.C. 3 1101(a)(44)(A). For instance, counsel asserts that the beneficiary is performing job duties of 
an executive nature "by making major decisions, establishing goals and policies of the company, directing the 
management and marketing of the company. Further he receives only a general supervision of the foreign 
company." To the extent the job description provided by the petitioner presented any job duties of an 
executive nature, it also does so in general terms, depicting the beneficiary as "direct[ing] and coordinat[ing] 
activities of the U.S. Corporation related to the business development . . . oversee[ing] the travel agency and 
the exportlimport, and property management business . . . coordinat[ing] the finance and formulate and 
administer organization policies . . . participat[ing] in formulating and administering company policies and 
developing long range goals and objectives." The petitioner provided no specifics as to what the "goals, 
objectives, or policies" of the organization might be, or what "directing, coordinating, or overseeing" the 
organization and its activities would entail. 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 without specifics does not satisfy the petitioner's burden of proof. Fedin Bros. Co., Ltd. 
v. Sava, 724 F. Supp. 1103, 1108 (E.D.N.Y. 1989), aff'd, 905 F. 2d 41 (2d. Cir. 1990); Alyr Associates Inc. v. 
Meissner, 1997 WL 188942 at *5 (S.D.N.Y.). 
The AAO further agrees with the director that a significant percentage of the beneficiary's job duties are not 
qualifying duties. For example, according to his job description, the beneficiary's responsibilities include 
such tasks as market research (IS%), meeting and negotiating contracts with vendors and customers (20%), 
and follow up with escrow and management companies (unspecified part of 20%). Since the job description 
appears to indicate that the beneficiary actually performs these functions, he is performing duties necessary to 
provide a service or product, and these duties 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 
WAC 03 075 51 138 
Page 7 
considered to be employed in a managerial or executive capacity. Matter of Church Scientology Int~?rnational, 
19 I&N Dec. 593,604 (Comm. 1988). 
For the same reason, counsel's assertion that the beneficiary qualifies as a "function manager" is not 
persuasive. 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). If a 
petitioner claims that the beneficiary is managing an essential function, the petitioner should 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. 214.2(1)(3)(ii). In 
addition, the petitioner must provide a comprehensive and detailed description of the beneficiary's daily duties 
demonstrating that the beneficiary manages the function rather than performs the duties relating to the 
function. In this matter, the petitioner has not specifically identified any specific essential functions that the 
beneficiary manages. Moreover, as noted earlier, to the extent the petitioner claims that the beneficiary is 
involved in functions such as market research, contract negotiation, and handling escrow and management 
companies, there is no evidence that the beneficiary manages those functions rather than perform d~rectly the 
duties relating to such functions. Again, 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, supra. 
Furthermore, the AAO notes that contrary to counsel's assertion on appeal that the beneficiary does not 
supervise other employees, in the letter dated June 25,2003 responding to the director's request, the petitioner 
did claim that the beneficiary "oversees the General Manager," who in turn oversees the marketing & sales 
manager, the export/import manager, and will oversee the property management manager. The letter further 
describes one of the beneficiary's duties as "oversees the management team." To the extent the petitioner 
claims that the beneficiary is managing a subordinate staff, the petitioner must establish that the subordinate 
staff is composed of supervisory, professional, or managerial employees. See section 101(a)(44)(A)iii) of the 
Act. In light of the petitioner's failure to include any description of the job duties of the other employees of 
the U.S. entity, as the director had requested, the AAO agrees with the director that the record is insufficient 
to establish that the beneficiary would be managing a subordinate staff of professional, managerial, or 
supervisory personnel who would relieve him from performing nonqualifying duties. Furthermore, failure to 
submit requested evidence that precludes a material line of inquiry shall be grounds for denying the petition. 
8 C.F.R. 9 103.2(b)(14). 
Finally, with respect to counsel's assertion that the U.S. entity is in the process of expanding and hiring full- 
time employees, the AAO notes that 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). Furthermore, 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 
WAC 03 075 51 138 
Page 8 
matter, the record does not demonstrate that petitioner has reached the point that it can employ the beneficiary 
in a predominantly managerial or executive position. 
In light of the foregoing, the AAO agrees with the director's conclusion that the petitioner has failed to 
establish that the beneficiary will be employed in a primarily executive or managerial capacity, as required by 
8 C.F.R. 3 214.2(1)(3). 
Beyond the decision of the director, the AAO notes that the record contains inconsistent information relating 
to the ownership of the U.S. entity. The petitioner indicated on the Form 1-129 that the foreign entity owns 
51% of the U.S. entity. The petitioner also submitted copies of share certificates, all issued in September 
2001, showing the following ownership of the issued and outstanding shares of the U.S. entity: 
1. R. K. Steel Syndicate -- 5,100 shares 
2. Shri Sadnand Maharaj -- 100 shares 
3. Devi Agganval -- 2,000 shares 
4. Pawan Agganval - 1,400 shares 
5. Vipin Arrganval - 1,400 shares 
Contrary to the above information, however, the U.S. entity's Internal Revenue Service (IRS) Form 1120, 
Corporate Income Tax Return, for the fiscal year ending August 31, 2002 indicated, "Pawan Aggarwal, an 
individual, owns 100% of the Company's voting stock." 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 tmth lies. Matter of Ho, 19 I&N Dec. 582, 591-92 (BIA 1988). The petitioner has not provided any 
explanation or any further evidence to reconcile the above inconsistency relating to the ownership of its 
shares. In light of this unresolved inconsistency, the AA0 cannot conclude that the petitioner has established 
that there exists a qualifying relationship between the U.S. and the foreign entities pursuant to 8 C.F.R. 4 
2 14.2(1)(1)(ii)(G). 
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 decis~on. See 
Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 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. 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.