dismissed L-1A Case: Real Estate

U.S. Department of Homeland SeeurEiy 
20 Mass. Ave, N.W. Rm. A3042 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
File: SRC 04 074 50492 Office: TEXAS SERVICE CENTER Date: 2 6 2005 
Petition: Petition for a Nonimrnigrant Worker Pursuant to Section 101(a)(15)(L) of the Immigration 
and Nationality Act, 8 U.S.C. 3 1101(a)(15)(L) 
IN BEHALF OF PETITIONER: SELF-REPRESENTED 
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. 
&--- - 
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<obe&'~~;nn, Director 
Administrative Appeals Office 
SRC 04 074 50492 
Page 2 
DISCUSSION: The Director, Texas Service Center, denied the petition for a nonimmigrant visa. The matter 
is'now befor; 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 and general 
manager 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 1 101(a)(15)(L). The petitioner, a Florida corporation, 
claims to be the subsidiary of Constructors del Salto, C.A., located in Caracas, Venezuela and claims to be 
engaged in the real estate business. 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 for an additional 
two years. 
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 director also found that 
the petitioner did not establish that it had been doing business during the previous year as required by the 
regulations. 
The petitioner filed an appeal in response to the denial. On appeal, the petitioner asserts that the director 
erroneously relied on the fact that the beneficiary was the petitioner's sole employee in concluding that the 
beneficiary was not a qualified manager or executive. In support of this contention, the petitioner submits a 
brief statement. 
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. 9 214.2(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. 
SRC 04 074 50492 
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(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. $ 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 managerial or executive 
capacity; and 
(E) Evidence of the financial status of the United States operation. 
The primary issue in this 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. $ 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 
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(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. $ 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 the initial petition, the petitioner submitted an undated statement fi-om the petitioner, prepared by the 
beneficiary in his capacity as president and general manager, which discussed the U.S. entity's business and 
the beneficiary's role within this structure. With regard to the beneficiary's duties, the petitioner stated: 
[The beneficiary] will continue filling the position of President and General Manager for the 
corporation. He will be responsible for: 1. the general and active discretionary decision 
making of the business and affairs of the corporation; 2. presides [over] all the meetings of 
the shareholders and all the meetings of the board of directors; 3. shall execute bonds, 
mortgages and other instruments; 4. shall sign certificates of stocks; 5. represent all the 
interests of [the petitioner]. He is qualified to fill the position on the basis of his past 
experience with the foreign and US corporation. 
On February 2 1, 2004, the director requested additional evidence pertaining to the nature of the beneficiary's 
position in the U.S. business. The request specifically asked the petitioner to submit evidence with regard to 
the beneficiary's title, his duties, and the percentage of time he devoted to each. The director also requested 
information with regard to the number of managerial andlor supervisory employees employed by the 
petitioner, as well as a brief description of their duties. In the event that the beneficiary did not supervise 
other employees, the director requested a description of any essential function managed by the beneficiary. 
Finally, the director requested evidence establishing the beneficiary's position in the organizational hierarchy 
of the petitioner, as well as an explanatio~~ as to who was responsible for providing the petitioner's products or 
services. In a response received on May 26, 2004, the petitioner submitted an updated description of the 
beneficiary's duties, which is set forth below. 
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The duties of the President and General Manager are: organize, develop and administrate the 
corporation conforming with the acts of licit commerce permitted by the laws, as well as the 
general commercial and administrative practices accepted. 
Within these duties are the following: 
a. Represent the corporation in its activities; 
b. Administer and manage the personnel of the corporation; 
c. Administer and manage all business and operations (sales, purchasing, invoicing, 
collection); 
d. Identify new opportunities of business; 
e. Comply with the legal obligations of the corporation; 
f. Others, indispensable for the good functioning of the corporation; 
g. Present statements on the resillts of this operation (monthly and yearly) 
With regard to the percentage of time the beneficiary devoted to each duty, the petitioner stated: 
a. Represent the corporation in its activities 10% 
b. Administer and manage the personnel of the corporation 10% 
c. Administer and manage all business and operations 
[sales, purchasing, invoicing, collection] 50% 
d. Identify new opportunities of business 15% 
e. Comply with the legal obligations of the corporation 5% 
f. Others, indispensable for the good functioning of the corporation 5% 
g. Present statements on the results of this operations [sic] 
[monthly and yearly] 5% 
The petitioner further stated that it was still in a start-up phase, and thus only employed the 
beneficiary. The petitioner noted, however, that it intended to hire five additional employees within 
the coming year and provided a description of the proposed positions. 
On June 4, 2004, the director denied the petition. The director found that the evidence in the record was 
insufficient to establish that the beneficiary would be primarily employed in a managerial or executive 
capacity. In addition, the director concluded that the evidence did not establish that the beneficiary was 
supervising managerial, professional, or supervisory employees such that he could be deemed primarily a 
manager. 
On appeal, the petitioner submits a brief statement on Form I-290B and asserts for the first time that the 
beneficia~y manages an essential function within the organization. The petitioner further claims that the fact 
that the petitioner employs only the beneficiary does not warrant a conclusion that the beneficiary is not 
acting in a primarily managerial or executive capacity. 
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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. 9 214.2(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 description of duties provided by the petitioner in the initial petition did little to describe the beneficiary's 
actual duties, nor did it describe the nature of the beneficiary's day-to-day tasks. Instead, it merely provided a 
generic description of the nature of his duties, and at times merely paraphrased the regulatory definitions. As 
previously stated, the initial evidence submitted was insufficient to warrant approval and, consequently, the 
director requested more specific information, including an updated description of the beneficiary's duties and 
details with regard to the petitioner's organizational structure. The petitioner submitted this requested 
evidence, which the director found to be insufficient to establish that the beneficiary's duties qualified under 
the requested classification. 
The AAO, upon review of the record of proceeding, concurs with the director's finding that the beneficiary 
will not be employed in either a primarily managerial or executive capacity. First, the petitioner failed to 
specifically articulate the nature of the beneficiary's duties. While the petitioner did identify the overall 
business goals of the petitioner and the beneficiary's role in reaching those goals, it failed to specifically 
discuss what the beneficiary did during an actual workday. 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), affd, 905 F.2d 41 (2d. Cir. 1990). Although the petitioner provided 
descriptions of the beneficiary's duties in both the initial petition and the response to the request for evidence, 
these descriptions did not articulate of what a specific day in the role of the beneficiary would consist. 
Instead, the descriptions merely provided a brief synopsis of the beneficiary's overall duties, such as 
"represent the corporation in its activities" and "administrate and manage the business and operations," and 
failed to discuss or identify job-specific tasks or obligations the beneficiary was required to perform. These 
statements fail to discuss the details of the beneficiary's actual duties despite the fact that the percentage of 
time she devotes to such duties is provided. The petitioner basically equates managerial and executive 
capacity with the beneficiary's title of president and general manager, yet fails to provide solid examples of 
how this capacity is actually attained. Conclusory assertions regarding the beneficiary's employment capacity 
are not sufficient. Merely repeating the language of the statute or regulations does not satisfy the petitioner's 
burden ofproof. Fedin Bros. Co. v. Sava, at 1108; Avyr Associates, Inc. v. Meissner, 1997 WL 188942 at "5 
(S.D.N.Y.). 
Second, whether the beneficiary is a manager or executive employee turns on whether the petitioner has 
sustained its burden of proving that his duties are "primarily" managerial or executive. See sections 
101(a)(44)(A) and (B) of the Act. Here, the petitioner provides virtually no detail or discussion of the 
beneficiary's actual duties. Instead, the petitioner merely claims that the services of the beneficiary are 
essential to the petitioner's development. Based on the current record, the AAO is unable to determine 
whether the claimed managerial duties constitute the majority of the beneficiary's duties, or whether the 
beneficiary primarily performs non-managerial administrative or operational duties. As previously stated, 
specifics are clearly an important indication of whether a beneficiary's duties are primarily executive or 
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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. at 1103. 
The AAO notes that in response to the request for evidence, the petitioner claimed that the beneficiary 
devoted 10% of his time to overseeing personnel, but also claimed to employ no one but the beneficiary. The 
director requested the petitioner to provide a statement regarding the beneficiary's subordinates and the 
positions they filled, or, in the alternative, to provide a statement discussing the essential function the 
beneficiary managed if no personnel were being supervised. In response, the petitioner provided a description 
of the proposed positions it planned to implement in its organizational hierarchy and discussed the 
beneficiary's supervision over these employees. On appeal, however, the petitioner changes its position and 
now claims that the beneficiary manages a function of the petitioner. On appeal, a petitioner cannot offer a 
new position to the beneficiary, or materially change a position's title, its level of authority within the 
organizational hierarchy, or the associated job responsibilities. The petitioner must establish that the position 
offered to the beneficiary when the petition was filed merits classification as a managerial or executive 
position. Matter of Michelin Tire Corp., 17 I&N Dec. 248, 249 (Reg. Comm. 1978). A petitioner may not 
make material changes to a petition in an effort to make a deficient petition conform to CIS requirements. See 
Matter of Izumnzi, 22 I&N Dec. 169, 176 (Assoc. Comm. 1998). Consequently, the AAO will continue to 
base its decision in this matter on the evidence contained in the record prior to adjudication. 
The petitioner's main contention is that the director erred in denying the petition on the basis that the 
beneficiary was the petitioner's sole employee. The petitioner correctly observes that a company's size alone, 
without talung into account the reasonable needs of the organization, may not be the determining factor in 
denying a visa to a multinational manager or executive. See 9 101(a)(44)(C) of the Act, 8 U.S.C. 
9 1101(a)(44)(C). However, it is appropriate for CIS to consider the size of the petitioning company in 
conjunction with other relevant factors, such as a company's small personnel size, the absence of employees 
who would perform the non-managerial or non-executive operations of the company, or a "shell company" 
that does not conduct business in a regular and continuous manner. See, e.g. Systronics Corp. v. INS, 153 F. 
Supp. 2d 7, 15 (D.D.C. 2001). The size of a company may be especially relevant when CIS notes 
discrepancies in the record and fails to believe that the facts asserted are true. Id. 
In this case, the petitioner indicates that it is still in a start-up phase and that most of the previous year was 
devoted to researching the market. It confirms that the beneficiary is its sole employee and that the majority 
of his time (50%) is devoted to the administration and managing of the business and its operations. Since 
there are no other employees to relieve the beneficiary, it must be concluded that the beneficiary is 
performing all tasks necessary to promote the business so that it can become operational. While the 
beneficiary's undertaking of all of the necessary tasks essential to the business is commendable, it does not 
qualify him for the requested classification. 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 indicates that it plans to hire additional managers and employees in the future. However, 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 
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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 reached 
the point that it can employ the beneficiary in a predominantly managerial or executive position. For this 
reason, the petition may not be approved. 
The second issue in thls matter is whether the petitioner has been doing business as required by the regulations 
for the previous year. The regulation at 8 C.F.R. §214.2(1)(l)(ii)(H) defines the term "doing business" as "the 
regular, systematic, and continuous provision of goods andlor services by a qualifylng organization and does not 
include the mere presence of an agent or office of the qualifylng organization in the United States and abroad." 
In this matter, the petitioner claims that it is engaged in the real estate business. The director denied the petition, 
finding that the petitioner had failed to satisfy the regulatory requirements for doing business. 
With the initial petition, no evidence of the petitioner's business practices was submitted. Consequently, in 
the request for evidence issued on February 21, 2004, the director requested documentation establishing that 
the petitioner had been doing business during the previous year as required by the regulations. Specifically, 
the director requested evidence in the form of financial records, tax records, employee rosters, annual reports, 
and evidence of business conducted, such as invoices, bills of sale, andlor product brochures of goods and 
services sold or produced by the company. In the response received on May 26, 2004, the petitioner 
submitted numerous invoices, showing that the petitioner performed services as of September 15, 2003 and 
thereafter. There was no documentation establishing that any goods or services were provided by the 
petitioner from the valid date of the initial L-1A petition, January 24, 2003, through September 14, 2003. The 
relevant invoices, therefore, were for the months of September, October, November, and December 2003, and 
January 2004. On appeal, the petitioner does not address this basis for the director's denial. 
On review of the evidence submitted, the AAO concludes that the petitioner failed to demonstrate that it had 
been doing business during the previous year. The record indicates that the beneficiary was granted a one- 
year period of stay fi-om January 24, 20103 to January 24, 2004 to open a new office. The record further 
indicates that the petitioner would engage in the real estate business. However, there is no indication of any 
business activities whatsoever until September 2003. 
Based on this limited information, it is clear that the petitioner was not doing business as required by 8 C.F.R. 
9 214.2(1)(14)(ii)(B). The AAO acknowledges the petitioner's claim that business was slow to start and is 
still in the developmental phase. However, the record is devoid of an explanation as to what the petitioner did 
between January 2003 and September 2003, and further lacks any explanation or documentation regarding 
other activities engaged in by the petitioner to promote its business during this period. The fact that the 
petitioner did not commence operations until September 2004, four months prior to the visa expiration, does 
not excuse the petitioner from meeting the regulatory requirements. 
The regulation at 8 C.F.R. 3 214.2(1)(3)(v)(C) allows the intended United States operation one year within the 
date of approval of the petition to establish the new office. Furthermore, at the time the petitioner seeks an 
extension of a new office petition, the regulations at 8 C.F.R. § 214.2(1)(14)(ii)(B) require the petitioner to 
demonstrate that it has been doing business for the previous year. In the present matter, the evidence 
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submitted at the time of filing confirmed that the petitioner had not been conducting business as required. 
The fact that it will hire more employees and expand the business in the future does not automatically entitle 
the petitioner to an extension of the visa, for it fails to change the fact that the petitioner failed to conduct 
business during the previous year. For this additional reason, the petition may not be approved. 
An application or petition that fails to comply with the technical requirements of the law may be denied by 
the MO even if the Service Center does not identify all of the grounds for denial in the initial decision. See 
Spencer Enterprises, Inc. v. United  state,^, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 2001), ufd. 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). 
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. 8 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.