dismissed L-1A Case: Real Estate

U.S. Department of Homeland Security 
20 Massachusetts Ave., N.W.. Rm. A3042 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
File: WAC-04-054-52358 Ofice: CALIF0 CENTER Date: 
, 
Petition: Petition for a Nonimmigrant Worker pursuant to Section 101(a)(l5)(L) of the Immigration 
and Nationality Act, 8 U.S.C. 5 1 10 1 (a)(15)(L) 
,I 
I 
IN BEHALF OF PETITIONER: 
INSTRUCTIONS: I, 
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 ofice. 
Robert P. Wiemann, Director ' 
Administrative Appeals Ofice 
WAC-04-054-52358 
Page 2 
DISCUSSION: The Director, California Service Center, deiied 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 Vice President as an 
L- 1 A nonimmigrant intracompany transferee pursuant to section 10 1 (a)( 15)(L) of the Immigration and 
Nationality Act (the Act), 8 U.S.C. 5 1101(a)(15)(L). The petitioner is a limited liability company organized 
in the State of California that operates as a real estate holding and management company, and seeks to serve 
as an importer and exporter in the auto parts industry. The petitioner claims that it is the subsidiary of Spectra 
Industries Ltd., located in Mumbai, India. The beneficiary was initially approved for L-1 status 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, contrary to the 
director's &ding, the petitioner filed a timely response to the director's Notice of Intent to Deny and the 
petition should be approved. In support of this assertion, counsel submits a short 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. 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 (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 
WAC-04-054-52358 
Page 3 
education, training, and employment qualifies himlher 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 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 lOl(a)(44)(A) of the Act, 8 U.S.C. tj 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 lOl(a)(44)(B) of the Act, 8 U.S.C. § 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 a letter submitted with the initial petition on December 18, 2003, the petitioner described the beneficiary's 
job duties as follows: 
WAC-04-054-52358 
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[The beneficiary], has intimate knowledge of both the technological and physical resources 
available to [the petitioner] and [the foreign entity] and is uniquely placed to formulate and 
implement policies and to market the services to clients in the US as well as provide the 
necessary direction to the service providers located in India. . . . Being a senior executive of 
the company and a member of the board of directors, he has great latitude in the execution of 
corporate strategy and establishing the goals and policies pertaining to marketing and client 
relations as well as responsibility for making all decisions in the area. 
[The beneficiary] supervises 2 professionals and 5 contract employees. He supervises a 
professional who has a BS degree in Economics and a Manager of New Development who 
has a BS degree in Business. We anticipate hiring at least 3 to 5 professional employees in 
the coming year to implement the management plans that are in place at this time. These 
professionals will include an Accountant, a Marketing Management Executive and a Real 
Estate Planner. 
We are requesting the extension of the L-IA visa to accomplish the following tasks: 
Direct the management of Strategic Marketing and client relations, maintain 
and expand the company's relationship with existing and future clients and 
negotiate with them on behalf of the company. 
Realign the focus of [the petitioner] to stay in tune with the ever-changing 
marketplace. 
Coordinate management and marketing of various residential and 
commercial real estate investments. 
Draw upon his intimate knowledge of the resources at the disposal of [the 
petitioner] and [the foreign entity] in India 
Coordinate and direct the company's services to the American Industry. 
Confer with select customers to determine special needs. 
Design and implement budget. 
Hire and train professional staff 
Coordinate activities between [the petitioner] and [the foreign entity] in 
India. 
The petitioner submitted its organizational chart that reflects that it employs a president, the beneficiary as 
vice president, a supervisor, a coordinator, a manager new development, a general repairs contractor, a 
mechanical contractor, a roofing/stucco contractor, and an electric/plumbing contractor. The petitioner 
further provided a copy of its California Form DE-6, Quarterly Wage and Withholding Report, for the third 
quarter of 2003, reflecting that it had three employees during that period. The beneficiary and one other 
employee were paid $3,000 for the quarter, and the remaining employee was paid $1,500 for the quarter. The 
petitioner submitted a summary of IRS Forms 1099-MISC, Miscellaneous Income, issued for 2002, including 
WAC-04-054-52358 
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payments to four individuals ranging from $940 to $2,130. The petitioner submitted illegible copies of Forms 
1099-MISC to accompany the summary. 
On January 30, 2004, the director issued a Notice of Intent to Deny the petition. Specifically, the director 
stated the following: 
[Tlhe most current Form DE-6 ending September 30, 2003 indicates only three salaried 
employees namely, the beneficiary as vice-president(~evelopment Mgr) and 
- as bookkeeper. Regarding the claimed' executivelmanagerial duties, there is 
insufficient evidence to establish that the beneficiary will be managing or directing the 
management of a department, a subdivision or a function of the U.S. entity, other than in 
position title. When a company of this size appears to have an abundance of executives and 
managers (3) and has a very limited number of employee staff (I) it becomes questionable as 
to whether the beneficiary is engaged primarily in managerial or executive duties. For 
instance, there is no evidence on record that the other managers are being paid the appropriate 
compensation that is due to a corporate officer. Although, salary or compensation is not 
determinative in establishing executive/managerial capacity, it is generally indicative of the 
importance of the duties and funition that an employee performs for a company. The 
petitioner has already a president who is in charge overall of the company's operations and 
personnel decisions. The petitioner fails to demonstrate how the beneficiary and the other 
manager's daily activities or the specific scope and nature of . . . their activities will be 
managerial or executive capacity. Further, since the evidence has not established that the 
beneficiary supervises a subordinate staff of professional, managerial, or supervisory 
personnel, it appears that the beneficiary has been and will be performing non-qualifying 
duties. 
In a response dated February 24, 2004, the petitioner submitted a letter addressing the director's concerns as 
follows: 
1) We wish to bring into your notice what has been stated earlier. The [petitioner] has 
only 3 employees on a W-2 fom. The rest of the employees are hired on a contract 
based. [sic] 
1) As described in our previous correspondence, the beneficiary . . . supervises 2 
professionals and 5 contract employees. The two professionals that he supervises and 
their job duties and their qualifications are as follows: 
Prakash Gupta: Explores new opportunities to find new properties. Explores 
areas for goods that can be exported to India or imported from India !o the 
U.S. Discusses the newfound opportunities with the Vice President. 
Supervises the projects of the company by making field trips and ensures the 
WAC-04-054-52358 
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i 
quality and timeliness of work done. He holds a bachelor's degree in 
Management. 
- - Prepares and maintains office operations including all 
accounting work. Corresponds with tenants, banks, attorneys and CPA's. 
Coordinates work schedules for the workers and organizes procurement of 
goods. He holds a Bachelor's degree in Economics. 
- Coordinates the internal legal paperwork for acquisition of 
properties and manages the development of these projects including leasing, 
selling and renting of properties. He holds a Bachelor's degree in Political 
Science. 
It is evident that the beneficiary supervises personnel all of who perform managerial duties 
and they all possess at least a Bachelor's degree. As for the compensation to the officers is 
concerned, we again wish to draw your attention to the fact that they receive [a] 
compensation package that includes compensation paid in the US and in the home country. 
The W-2 forms only show the US income . . . . The nature of business of the company 
involves, in large part, management decisions and actual field work. The negligible clerical 
work of the company is handled by the supervisor of the in-house accounting and other work. 
This should not be interpreted to suggest that [the beneficiary] is not performing executive 
duties because his duties are primarily and predominantly executive in nature. 
On March 30, 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. The director reiterated his findings that were presented in the Notice of Intent to Deny. The 
director stated that the petitioner was afforded 30 days to respond to the notice, yet failed to do so. Therefore, 
the director found that the petitioner failed to rebut the grounds for denial. 
On appeal, counsel for the petitioner asserts that, contrary to the director's finding, the petitioner did in fact 
file a timely response to the director's Notice of Intent to Deny. The petitioner submits evidence that the 
response was delivered to the Citizenship and Immigration Services (CIS) California Service Center on 
February 27, 2004, 28 days after the date of the director's decision. Counsel makes no new assertions and 
submits no new evidence regarding the beneficiary's employment capacity or the petitioner's eligibility. 
Upon review, counsel has established that the petitioner's response to,the Notice of Intent to Deny was 
received by CIS in a timely manner. In fact, to corroborate counsel's claim, CIS is in possession of the 
petitioner's response with the receipt date stamped as February 27, 2004. Thus, the director's assertion that 
the petitioner failed to respond to the notice was in error, and the director's finding on this point wili.be 
withdrawn. The AAO will consider the petitioner's response to the notice of intent to deny, and the 
petitioner's eligibility. 
WAC-04-054-52358 
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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. fj 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. 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. 
In the instant case, the petitioner indicates that the beneficiary will have an executive position and he will 
supervise subordinate employees. Thus, it appears that the petitioner intends to represent that the beneficiary 
will be primarily engaged in both managerial duties and executive duties. To sustain such an assertion, the 
petitioner must establish that the beneficiary meets each of the four criteria set forth in the statutory definition 
for executive duties under section 1 01(a)(44XB) 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. 5 214.2(1)(3)(ii). 
The beneficiary's job descriptions submitted by the petitioner are brief and vague, providing little insight into 
the true nature of the tasks the beneficiary will perform in the United States. For example, the statement that 
the beneficiary "is uniquely placed to formulate and implement policies" does not indicate what actual 
measures he will take to accomplish this duty. The petitioner makes ambiguous statements such as the 
beneficiaty will "[rlealign the focus of [the petitioner] to stay in tune with the ever-changing marketplace" 
and "[cloordinate and direct the company's services to the American Industry," yet such representations fail to 
explain what the beneficiary will do on'a daily basis. The petitioner provides that the beneficiary will "market 
the services to clients in the US," "[clonfer with select customers to determine special needs," and he "has 
great latitude in the execution of corporate strategy and establishing the goals and policies pertaining to 
marketing and client relations." Without further explanation, these duties appear to be non-qualifying sales 
and marketing tasks. 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. Sava, 724 F. Supp. 1103 (E.D.N.Y. 1989), aff'd, 905 F.2d 
41 (2d. Cir. 1990). The actual duties themselves reveal the true nature of the employment. Id. The provided 
job descriptions do not allow the AAO to determine the actual tasks that the beneficiary will perform, such 
that they can be classified as managerial or executive in nature. 
The petitioner asserts that the beneficiary will have supervisory authority over subordinate employees, 
including a supervisor, a coordinator, a manager new development, a general repairs contractor, a mechanical 
contractor, a roofing/stucco contractor, and an electric/plumbing contractor. Yet, the petitioner has failed to 
provided sufficient documentation to show that it currently employs outside contractors. The evidence of 
record contains a summary of IRS Forms 1099-MISC issued for services received from four individuals in 
2002. Yet, the petitioner has provided no documentation to show that these or other individuals are presently 
providing services on an ongoing basis. The petitioner submitted invoices from the mechanical contractor 
dated from December 1 1,2002 to April 17,2003, yet no documentation reflects that he is currently providing 
services to the petitioner, such that managing his work is an ongoing responsibility of the beneficiary and the 
petitioner's staff. The petitioner submitted a single invoice from the roofing/stucco contractor dated March 1, 
2003, yet this document does not show that this contractor is providing services on a regular basis. The 
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record contains no evidence of services provided by the general repairs contractor at any time, or by the 
electric/plumbing contractor after 2002. Going on record without supporting documentary evidence is not 
sufficient for purposes of meeting the burden of proof in these proceedings. Matter of Treasure Craft of 
California, 14 I&N Dec. 190 (Reg. Comm. 1972). The petitioner has failed to establish that it currently 
employs outside contractors that require managerial oversight from the petitioner's staff. 
Further, the petitioner has failed to submit documentation to support that it employs a coordinator. As noted 
by the director, the petitioner's Form DE-6 for the third quarter of 2003 indicates only three salaried 
employees, including the beneficiary as vice-president and- Though the 
petitioner claims that its employees are also paid by the oreign entlty, the petitioner as ailed to submit any 
evidence of such payments. Again, going on record without supporting documentary evidence is not 
sufficient for purposes of meeting the burden of proof in these proceedings. Matter of Treasure Craft of 
California, 14 I&N Dec. at 190. As the petitioner's documentation does not corroborate the employment of 
the coordinator, he will not be considered in this proceeding. 
The Form DE-6 for the third quarter of 2003 reflects that the supervisor was paid.a total of $1,500 for that 
period. As the petitioner's evidence only shows that he was compensated an average of $500 per month, the 
evidence reflects that he is a part-time employee. The beneficiary and the manager new development both 
were compensated $3,000 for the period. Thus, the petitioner has documented that the beneficiary has, at 
most, one part-time subordinate and one subordinate that is compensated at the same rate as the beneficiary. 
The petitioner claims that "the beneficiary supervises personnel all of who perform managerial duties and 
they all possess at least a Bachelor's degree." Although the beneficiary is not required to supervise personnel, 
if it is claimed that his duties involve supervising employees, the petitioner must establish that the subordinate 
employees are supervisory, professional, or managerial. See 5 101 (a)(44)(A)(ii) of the Act. 
In evaluating whether the beneficiary manages professional employees, the AAO must evaluate whether the 
subordinate positions require a baccalaureate degree as a minimum for entry into the field of endeavor. 
Section 10 1 (a)(32) of the Act, 8 U.S.C. 1 10 I (a)(32), states that "[tlhe term profession shall include but not 
be limited to architects, engineers, lawyers, physicians, surgeons, and teachers in elementary or secondary 
schools. colleges, academies, or seminaries." The term "profession" contemplates knowledge or learning, not 
merely skill, of an advanced type in a given field gained by a prolonged course of specialized instruction and 
study of at least baccalaureate level, which is a realistic prerequisite to entry into the particular field of 
endeavor. Matter ojSea, 19 I&N Dec. 817 (Comm. 1988); Mailer oj' Ling, 13 I&N Dec. 35 (R.C. 1968); 
Matter of Shin. 1 1 I&N Dec. 686 (D.D. 1966). 
Therefore, the AAO must focus on the level of education required by the position, rather than the degree held 
by a subordinate employee. The possession of a bachelor's degree by a subordinate employee does not 
automatically lead to the conclusion that an employee is employed in a professional capacity as that term is 
defined above. In the instant case, the petitioner claims that the manager new development earned a 
bachelor's degree in management, and the supervisor earned a bachelor's degree in economics. However, the 
petitioner has not sufficiently described their duties such that the AAO can determine if a bachelor's degree is, 
WAC-04-054-52358 
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in fact, required to successfully perform their respective duties. Thus, the petitioner has failed to show that 
these subordinates are professionals. 
Nor has the petitioner shown that the manager new development and supervisor have authority over 
subordinate staff members or manage a clearly defined department or function of the petitioner, such that they 
could be classified as managers or supervisors. Thus, the petitioner has not shown that the beneficiary's 
subordinate employees are supervisory, professional, or managerial, as required by section 10 1 (a)(44)(A)(ii) 
of the Act. 
The record is not persuasive in demonstrating that the beneficiary will be employed in a primarily managerial 
or executive capacity. The petitioner indicates that it plans to hire additional managers and employees in the 
future. However, 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). Based on the 
foregoing, the petitioner has not established that the beneficiary will be employed in a primarily or managerial 
capacity, as required by 8 C.F.R. 5 214.2(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 corporate 
relationship with the beneficiary's foreign employer as required by 8 C.F.R. 5 214.2(1)(3)(i). On the initial 
petition, the petitioner indicated that it is the subsidiary of the beneficiary's foreign employer. In an attached 
letter, the petitioner stated that the foreign entity owns 51 percent of the petitioner's stock. The petitioner 
submitted copies of its 2000, 2001, and 2002 IRS Forms 1065, U.S. Return of Partnership Income. The 
Schedules K attached to each of these returns reflect that the beneficiary owns 5 1 percent of the petitioner and 
owns 49 percent. Schedules B of the returns further state that the petitioner has no foreign 
e petitioner's documentation is inconsistent with its claim to be a subsidiary of the foreign 
entity. See 8 C.F.R. 9 214.2(1)(IXii)(K). The petitioner further submitted a document titled "List of Promoters 
of [The foreign entity] and Their Shareholding as of 3 1/12/2002," which reflects that the beneficiary owns at 
most 11 1,300 of 3,495,599 shares of the foreign entity's stock. Thus, the beneficiary does not own and 
control the foreign entity and the petitioner, and the two companies cannot be deemed affiliates. See 8 C.F.R. 
5 2 14.2(1X l)(iiXL). Accordingly, the petitioner has provided inconsistent information regarding its 
relationship to the foreign entity. 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), afd. 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 29 1 of the Act, 8 U.S.C. 8 1361. The petitioner has not met this burden. 
ORDER: The appeal is dismissed.