dismissed L-1A Case: Property Management

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PUBLIC COPY 
U.S. Department of Homeland Security 
20 Massachusetts Ave. N.W., Rrn. A3042 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
Services 
Petition: 
 Petition for a Nonimmigrant Worker Pursuant to Section 10 1 (a)(15)(L) of the Immigration 
and Nationality Act, 8 U.S.C. 9 1101(a)(15)(L) 
IN BEHALF OF PETITIONER: 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to 
the office that originally decided your case. Any further inquiry must be made to that office. 
'7 
- 
Robert P. Wiemann, Director 
Administrative Appeals Office 
SRC 04 133 52573 
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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 seeks to employ the beneficiary as an L-1A nonimmigrant intracompany transferee pursuant to 
section 101(a)(15)(L) of the Immigration and Nationality Act (the Act), 8 U.S.C. 9 1101(a)(15)(L). The 
petitioner is a corporation organized in the State of Florida that is engaged in the acau 
of houses and other structures. The petitioner claims that it is the subsidiary of 
in Nassau, Bahamas, and seeks to employ the beneficiary as its vice-president. 
The director denied the petition concluding that the petitioner did not establish that (1) the beneficiary will be 
employed in the United States in a primarily managerial or executive capacity; or (2) the beneficiary was 
employed abroad in a primarily managerial or executive capacity. 
On appeal, counsel for the petitioner asserts that the director's decision was incorrect as a matter of law, and 
that the beneficiary was in fact a qualified manager or executive. In support of this assertion, counsel submits 
a detailed brief and 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. $ 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. 
(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. 
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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 
(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. 4 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. 
The first issue in this matter is whether the beneficiary will be employed in the United States in a primarily 
managerial or executive capacity. 
In a letter dated April 4, 2004, counsel for the petitioner explained that the beneficiary would be in charge of 
the day-to-day operations of the U.S. entity and that she would further be in charge of the management of the 
company's residential property division. No additional information was submitted. 
SRC 04 133 52573 
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Consequently, the director requested additional evidence on May 8, 2004. Specifically, the director requested 
more information to establish that the beneficiary would be employed in a capacity that was primarily 
managerial or executive. The director requested documentary evidence establishing this, and also requested 
copies of W-2 forms for the U.S. entity's employees for the previous year in order to verify the petitioner's 
claimed staffing levels. 
In a response dated August 5, 2004, counsel for the petitioner provided a more detailed description of the 
beneficiary's duties. Specifically, counsel stated: 
[The beneficiary] will resume her position of Executive Vice President of [the petitioner] and 
the Director of the Property Division. Currently, [the petitioner] is using a property 
management company . . . to oversee the redevelopment and management of twenty-five 
properties [the petitioner] owns in St. Petersburg, Florida. Upon [the beneficiary's] L-1A 
approval, she will take over this responsibility as well as duty for [the petitioner's] day-to-day 
operations. [The beneficiary] will be working closely with local housing officials as many of 
the homes are HUD homes and rented via the Section 8 provisions with specific rules and 
regulations in the amount of rent allowed and property standards. 
No further information was submitted, and counsel advised that the petitioner's forms W-2 were not yet 
available. 
On August 27, 2004, the director denied the petition. The director determined that the petitioner had failed to 
establish that the beneficiary would be functioning in a primarily managerial or executive capacity. On 
appeal, counsel submits additional evidence in the form of contract sheets, and claims that in the industry, it is 
common for one principal to work with a small subordinate staff and sub-contractors. 
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. 8 214.2(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 
either in an executive or managerial capacity. Id. In this case, the initial description of the beneficiary's duties 
was too unspecific to determine the nature of her proposed position. In the request for evidence, definitive 
documentation establishing the managerial andlor executive capacity of the proposed position was requested. 
However, the petitioner, through counsel, provided another vague overview of the petitioner's business, and 
merely indicated that the beneficiary would take over the duties of the property management company 
currently providing these services for the petitioner. This updated description of duties was likewise 
insufficient. Reciting the beneficiary's vague job responsibilities or broadly-cast business objectives is not 
sufficient; the regulations require a detailed description of the beneficiary's daily job duties. The petitioner 
has failed to answer a critical question in this case: What does the beneficiary primarily do on a daily basis? 
The actual duties themselves will reveal the true nature of the employment. Fedin Bros. Co., Ltd. v. Sava, 724 
F. Supp. 1103, 1108 (E.D.N.Y. 1989), am, 905 F.2d 41 (2d. Cir. 1990). 
In this case, it appears from the limited evidence in the record that the beneficiary, under the pretence of an 
executive title, will merely be operating a property management company. There is no evidence in the record 
SRC 04 133 52573 
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to establish that she will be overseeing a staff of managerial, supervisory, or professional employees. 
Although the record claims that the petitioner employs fifteen persons, no evidence of their actual 
employment has been submitted. In fact, counsel asserted that the W-2 forms establishing the employment of 
these persons were unavailable; however, no other evidence, such as payroll records or cancelled paychecks, 
were submitted in lieu of the W-2 forms. The non-existence or other unavailability of required evidence 
creates a presumption of ineligibility. 8 C.F.R. 5 103.2(b)(2)(i). In addition, despite the director's specific 
requests for evidence, nothing definitive with regard to the exact nature of the beneficiary's day-to-day duties 
has been submitted. 
Therefore, the record is not persuasive in establishing that the beneficiary will operate in a primarily 
managerial or executive capacity. The petitioner was put on notice of required evidence and given a 
reasonable opportunity to provide it for the record before the visa petition was adjudicated. Failure to submit 
requested evidence that precludes a material line of inquiry shall be grounds for denying the petition. 8 C.F.R. 
8 103.2(b)(14). 
In conclusion, absent evidence to the contrary, it appears that by virtue of the minimal evidence and the 
statement that the beneficiary will "be in charge of the day-to-day operations" of the petitioner, it appears that 
the beneficiary will be primarily engaged in the tasks essential to the viability of the petitioner's business. 
Since there is no evidence of a subordinate staff who could relieve the beneficiary of these non-qualifying 
duties, the only feasible conclusion is that she will perform them herself. 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). 
For this reason, the petition may not be approved. 
The second issue in this matter is whether the beneficiary was employed abroad in a primarily managerial or 
executive capacity. 
The petitioner provided no information regarding the beneficiary's duties abroad with the initial petition, aside 
from a brief comment on the L Supplement which stated that she supervised the daily activities of 
international property rentals. In response to the director's request for evidence, counsel merely stated in his 
August 5, 2004 letter that "[the beneficiary] was a Director and the Executive Vice President" of the foreign 
entity. No additional information was provided. 
The director subsequently denied the petition on the alternative basis that the beneficiary had not been 
employed abroad in a managerial or executive capacity as required by the regulations based on the lack of 
evidence in the record. On appeal, counsel states that a director, officer or shareholder of a corporation, by 
definition, is an executive. No additional information was submitted. 
Again, the petitioner's assertions are not persuasive. Whether the beneficiary will be a manager or executive 
employee turns on whether the petitioner has sustained its burden of proving that her duties are "primarily" 
managerial or executive. See $5 101(a)(44)(A) and (B) of the Act. In this case, the petitioner asserts that the 
SRC 04 133 52573 
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beneficiary was a qualified executive abroad by virtue of her position title. However, the petitioner failed to 
provide a description of her duties, and the information contained in the record is vague and unpersuasive. 
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, afd, 905 F.2d 41. 
The record, once again, is not persuasive in establishing that the beneficiary was employed abroad in a 
primarily managerial or executive capacity. The petitioner was put on notice of required evidence and given a 
reasonable opportunity to provide it for the record before the visa petition was adjudicated. 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). 
The petitioner has failed to establish that the beneficiary was employed abroad in a primarily managerial or 
executive capacity. For this additional reason, the petition may not be approved. 
Beyond the decision of the director, the petitioner has not established that a qualifying relationship exists 
between the petitioner and the foreign entity. The regulation and case law confirm that ownership and control 
are the factors that must be examined in determining whether a qualifying relationship exists between United 
States and foreign entities for purposes of this visa classification. Matter of Church Scientology 
International, 19 I&N Dec. 593 (BIA 1988); see also Matter of Siemens Medical Systems, Inc., 19 I&N Dec. 
362 (BIA 1986); Matter of Hughes, 18 I&N Dec. 289 (Comm. 1982). In the context of this visa petition, 
ownership refers to the direct or indirect legal right of possession of the assets of an entity with full power and 
authority to control; control means the direct or indirect legal right and authority to direct the establishment, 
management, and operations of an entity. Matter of Church Scientology International, 19 I&N Dec. at 595. 
As general evidence of a petitioner's claimed qualifying relationship, stock certificates, the corporate stock 
certificate ledger, stock certificate registry, corporate bylaws, and the minutes of relevant annual shareholder 
meetings must also be examined to determine the total number of shares issued, the exact number issued to 
the shareholder, and the subsequent percentage ownership and its effect on corporate control. Additionally, a 
petitioning company must disclose all agreements relating to the voting of shares, the distribution of profit, 
the management and direction of the subsidiary, and any other factor affecting actual control of the entity. 
See Matter of Siemens Medical Systems, Inc., 19 I&N at 362. Without full disclosure of all relevant 
documents, Citizenship and Immigration Services (CIS) is unable to determine the elements of ownership and 
control. This evidence was requested for both the petitioner and the foreign entity in the request for evidence 
issued on May 8, 2004. The petitioner was put on notice of required evidence and given a reasonable 
opportunity to provide it for the record before the visa petition was adjudicated. The petitioner failed to 
submit the requested evidence, yet now submits some corporate documentation on appeal. However, the 
AAO will not consider this evidence for any purpose. See Matter of Soriano, 19 I&N Dec. 764 (BIA 1988); 
Matter of Obaigbena, 19 I&N Dec. 533 (BIA 1988). The appeal will be adjudicated based on the record of 
proceeding before the director. 
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 
SRC 04 133 52573 
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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). 
When the AAO denies a petition on multiple alternative grounds, a plaintiff can succeed on a challenge only 
if she shows that the AAO abused it discretion with respect to all of the AAO's enumerated grounds. See 
Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d at 1043, afd. 345 F.3d 683. 
The petition will be denied for the above stated reasons, with each considered as an independent and 
alternative basis for denial. In visa petition proceedings, the burden of proving eligibility for the benefit 
sought remains entirely with the petitioner. Section 291 of the Act, 8 U.S.C. 5 1361. Here, that burden has 
not been met. 
ORDER: The appeal is dismissed.