dismissed L-1A Case: Real Estate Development

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U.S. Department of Homeland Security
20 Mass. Ave., N.W., Rm. 3000
Washington, DC 20529
u.s.Citizenship
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FILE: SRC 06 01353195 Office: TEXAS SERVICE CENTER Date: FEB 2 12007
INRE: Petitioner:
Beneficiary:
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(l5)(L) of the
Immigration and Nationality Act, 8 U.S.C. § 1101(a)(15)(L)
ON BEHALF OF PETITIONER:
INSTRUCTIONS:
This is the decision of the Administrative Appeals Office in your case. All documents have been returned
to the office that originally decided your case. Any further inquiry must be made to that office.
;., /
/'UtAA.~~
~RObert P. Wiemann, Chief
Administrative Appeals Office
www.uscis.gov
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SRC 06 01353195
Page 2
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 appeal will be dismissed.
The petitioner, a Georgia limited liability company, claims to be engaged in the development,
d operations business. The petitioner states that it is a subsidiary of
ocated in India. Accordingly, the United States entity petitioned Citizenship
and Immigration Services (CIS) to classify the beneficiary as a nonimmigrant intracompany transferee (L­
1A) pursuant to section 101(a)(l5)(L) of the Immigration and Nationality Act (the Act), 8 U.S.C. §
1101(a)(15)(L). The petitioner was initially granted a one-year period of stay to open a new office and
the petitioner now seeks to extend the beneficiary's stay in order to continue to fill the position of vice
president for a three-year period.
The director denied the petition on February 9, 2006 , concluding that the record contains insufficient
evidence to demonstrate that the beneficiary will be employed in a primarily executive or managerial
capacity by the U.S. company. The director noted that it did not appear that the beneficiary supervises a
staff of professional, managerial of supervisory personnel who will relieve the beneficiary from
performing non-qualifying duties, and thus the beneficiary will be primarily involved in performing the
day-to-day services essential to running a business.
On appeal , counsel asserts that the U.S. company is a new business and it is "unrealistic to expect this
petitioner to be up and running to the level of sophistication insinuated in the denial." Counsel states that
the record provides enough evidence to demonstrate that the U.S. company will expand and grow.
Counsel further states that the beneficiary supervises professional employees such as the human
resources/marketing manager, and independent contractors or "leased employees" such as a lawyer and an
accountant. Counsel cites two unpublished decisions to support his claims. Finally , counsel for the
petitioner asserts that the beneficiary is a function manager. In support of the appeal, counsel submits a
brief and resubmits documentation previously filed.
To establish eligibility under section 101(a)(l5)(L) of the Act, the petitioner must meet certain criteria.
Specifically , within three years preceding the beneficiary's application for admission into the United
States, a firm, corporation, or other legal entity , or an affiliate or subsidiary thereof , must have employed
the beneficiary for one continuous year. Furthermore , the beneficiary must seek to enter the United States
temporarily to continue rendering his or her services to the same employer or a subsidiary or affiliate
thereof in a managerial, executive, or specialized knowledge capacity.
The regulation at 8 C.F.R. § 214.2(1)(3)further 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 (1)(1)(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 .
SRC 06 013 53 195
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(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 him/her 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(l)(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 (1)(1)(ii)(G) of this section;
(B) Evidence that the United States entity has been doing business as defined in
paragraph (l)(1)(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 issue to be addressed in this proceeding is whether the petitioner has established that the beneficiary
will be employed in a primarily managerial or executive capacity.
Section 101(a)(44)(A) of the Act , 8 U.S.C. § 1101(a)(44)(A), provides:
The term "managerial capacity" means an assignment within an organization in which the employee
primarily-
(i) manages the organization, or a department , subdivision, function , or component of the
organization;
(ii) supervises and controls the work of other supervisory , professional , or managerial
employees, or manages an essential function within the organization, or a department or
subdivision of the organization;
SRC 06 01353195
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(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. § 1101(a)(44)(B), provides:
The term "executive capacity" means an assignment within an organization in which the employee
primarily-
(i) directs the management of the organization or a major component or function of the
organization;
(ii) establishes the goals and policies of the organization, component, or function;
(iii) exercises wide latitude in discretionary decision-making; and
(iv) receives only general supervision or direction from higher level executives, the
board of directors, or stockholders of the organization.
The nonimmigrant petition was filed on October 18,2005. The Form 1-129 indicates that the beneficiary will
be employed in the position of vice president for the petitioner, which claimed to have two employees. In a
support letter dated November 20, 2003, the beneficiary's proposed duties in the U.S. are described as the
following:
As Vice President, the beneficiary has begun developing, supervising and controlling the
USA operations. He is beginning to evolve new strategies and programs to develop our
business and thus expand our business in the United States. He will work closely with the
company's senior management in the development and growth of this business in the US
marketplace. He will evaluate and review the current real estate deals.
1) He is supervising a team of project managers and technical support and service
managers who provide technical support to development projects and consulting
services and related operations.
2) He is charged with complete responsibility for all major operations in the United
States including the following:
a) supervising a team of top management personnel who run the day-to-day
operations at Corp. in the United States;
SRC 06 013 53195
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b) providing key strategic technology and project management directives to
stay ahead in the real estate development business;
c) manage finance operations, personnel and human resources development
policies;
d) set guidelines for quality management, technical support management, and
attend trade shows;
e) continuously refining business objectives, organizational policies, as well as
formulating financial strategies to provide funding for continuing or
expanding new operations so as to maximize return on investments, and
increase productivity;
f) continuously establish and assign responsibilities and procedures for
attaining objectives and goals and evaluating performance for compliance
with established policies and objectives of the corporation and contributions
in attaining objectives;
g) developing and forming alliances with a variety of national and
multinational corporations to provide services and thus facilitate contracts
in the US;
h) identify potential trading deals;
i) report to the parent company in India.
As you would expect, these responsibilities are intertwined but can be grouped thus:
Management decisions including financial decisions (50%)
Supervision of day-to-day operations (25%)
Contract negotiations & business development (15%)
Company representation and public relations (100/0)
In addition, the petitioner submitted a brochure for the U.S. company describing the services the U.S.
company provides. For example, the U.S. company provides "real estate property development and
consulting and interior design." The company "assists investors and other businesses in developing
properties." The brochure states that the U.S. company will "secure loans", "do market study," and "handle
all interior design." The company also has the ability to provide yoga workshops, ayurveda seminars, and
traditional Indian style weddings. The petitioner also submitted several invoices for services provided by the
petitioner to three companies since March 2005. The services are described as "management and
professional fee." In addition, the petitioner submitted pay stubs for both employees of the U.S. company,
the beneficiary as the vice president and the petitioner's other employee.
SRC 06 013 53195
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On November 2, 2005, the director determined that the petitioner did not submit sufficient evidence to
process the petition and the director requested that the petitioner submit: (l) the organizational chart of the
u.s. company, including the names, job titles and a detailed job description for each employee; (2) a copy of
the U.S. company's federal income tax return for the prior year; (3) copies of the petitioner's Georgia
employer's quarterly wage reports for the last four quarters; and, (4) copies of the U.S. company's IRS
Form 941, Employer's Quarterly Federal Tax Return, for all employees.
In a response to the director's request, dated January 28, 2006, the petitioner reiterated the beneficiary's
proposed job duties as stated in the initial filing. In addition, the petitioner submitted the job duties
performed by the petitioner's other employee, who was identified as a human resources/marketing manager,
who works under the beneficiary's supervision. The petitioner stated that the human resources/marketing
manager manages the human resources functions, and assists with business development, marketing
functions and customer service.
The petitioner also submitted the U.S. company's Georgia State Employer's Quarterly Tax and Wage Report
for the quarters ended in June 2005 and September 2005, which confirm the employment of the beneficiary
and the human resources/marketing manager. In addition, the petitioner submitted Form 941, Employer's
Quarterly Federal Tax Return, for the quarters ended in June 2005 and September 2005, which also confirm
the employment of the beneficiary and the human resources/marketing manager.
The petitioner also submitted two consulting agreements between the United States company and two
separate companies. Both agreements were entered into in June 2005. The agreements state that the
petitioning company agrees to provide all of the "man-power" and "financial, accounting and marketing
consulting" to the company.
The director denied the petition on February 9, 2005 on the ground that insufficient evidence was
submitted to demonstrate that the beneficiary will be employed in a primarily executive or managerial
capacity by the U.S. company. The director noted that the beneficiary "is not managing other
professionals or managers." The director also noted that the petitioner did not submit sufficient evidence
to demonstrate that the beneficiary will be a function manager, or that the beneficiary will be employed in
a primarily managerial or executive capacity with the U.S. entity.
The petitioner filed an appeal on February 9, 2006. On appeal, counsel for the petitioner asserts that it is
"unrealistic to expect this petitioner to be up and running to the level of sophistication insinuated in the
denial. The beneficiary entered the United States on L-1A only on April 2005." Counsel urges that the
CIS consider the fact that this is a new company and the "absence of other more managerial employees on
the petitioner's direct payroll is a normal characteristic of a new business." Counsel also states that the
beneficiary supervises individuals employed by the petitioner and independent contractors, as well as
leased employees such as a law firm and an accounting firm. Counsel also cites unpublished decisions in
support of the assertion that the number of staff is not a basis for denial where the beneficiary is a top
manager. Finally, counsel states that the beneficiary is a function manager.
Counsel's assertions are not persuasive. Upon review of the petition and evidence, the petitioner has not
established that the beneficiary will be employed in a 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
SRC 06 01353195
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the job duties. See 8 C.F.R. § 214.2(l)(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 definitions of executive and managerial capacity have two parts. First, the petitioner must show that
the beneficiary performs the high-level responsibilities that are specified in the definitions. Second, the
petitioner must prove that the beneficiary primarily performs these specified responsibilities and does not
spend a majority of his or her time on day-to-day functions. Champion World, Inc. v. INS, 940 F.2d 1533
(Table), 1991 WL 144470 (9th Cir. July 30, 1991).
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. An employee who "primarily" performs the tasks
necessary to produce a product or provide a service is not considered to be "primarily" employed in a
managerial or executive capacity. See sections 101(a)(44)(A) and (B) of the Act (requiring that one
"primarily" perform the enumerated managerial or executive duties); see also Matter of Church
Scientology Intn '1., 19 I&N Dec. 593, 604 (Comm. 1988).
Here, while the beneficiary evidently exercises some discretion over the day-to-day operations of the
business, the petitioner's description of his proposed duties suggest that the beneficiary's actual duties
include a number of non-managerial and non-executive duties.
The beneficiary's proposed job description includes vague duties such as the beneficiary is "charged with
complete responsibility for all major operations in the United States"; and will be responsible for
"providing key strategic technology and project management directives to stay ahead in the real estate
development business"; "manage finance operations, personnel and human resources development
policies"; "set guidelines for quality management, technical support management, and attend trade
shows"; and "continuously refining business objectives, organizational policies, as well as formulating
financial strategies to provide funding for continuing or expanding new operations so as to maximize
return on investments, and increase productivity." 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 provide any detail or explanation of the
beneficiary's activities in the course of his daily routine. 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), aff'd,
905 F.2d 41 (2d. Cir. 1990).
In reviewing the record, the petitioner did not clearly describe the U.S. entity's business activities and
thus the AAO cannot determine if the beneficiary's vague duties, as mentioned above, qualify as
primarily managerial or executive duties. Without additional clarification from the petitioner regarding
the scope of the business activities performed by the U.S. company, the AAO cannot distinguish these
vague responsibilities from routine administrative or operational tasks. If the beneficiary is in fact
attending trade shows, provides technical support and sets guidelines for management, these duties have
not been shown to be managerial or executive in nature. Going on record without supporting
documentary evidence is not sufficient for purposes of meeting the burden of proof in these proceedings.
SRC 06 013 53195
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Matter ofSoffici, 22 I&N Dec. 158, 165 (Comm. 1998) (citing Matter of Treasure Craft of California, 14
I&N Dec. 190 (Reg. Comm. 1972)).
In addition, the beneficiary will be the vice president of the company. According to the organizational
chart submitted for the U.S. company, the chart indicates that the beneficiary will be supervised by the
president. The petitioner failed to provide any information or documentation regarding the duties the
president will perform, therefore, the beneficiary's actual level of authority is unclear. It is incumbent
upon the petitioner to resolve any inconsistencies in the record by independent objective evidence. Any
attempt to explain or reconcile such inconsistencies will not suffice unless the petitioner submits
competent objective evidence pointing to where the truth lies. Matter ofHo, 19 I&N Dec. 582, 591-92
(BIA 1988).
In addition, the job duties required of the beneficiary include non-qualifying duties such as the beneficiary
will be responsible for "developing and forming alliances with a variety of national and multinational
corporations to provide services and thus facilitate contracts in the US"; "identify potential trading deals"; and
will be responsible for "contract negotiations and business development"; and "company representation and
public relations." 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. The petitioner's description of the
beneficiary's job duties does not establish what proportion of the beneficiary's duties is managerial in
nature, and what proportion is actually non-managerial. See Republic of Transkei v. INS, 923 F.2d 175,
177 (D.C. Cir. 1991).
In the instant matter, the job description submitted by the petitioner provides little insight into the true
nature of the tasks the beneficiary will perform or how his time will be divided among managerial and
non-managerial duties. While the petitioner has provided a breakdown of the percentage of time the
beneficiary will spend on various duties, the petitioner has not articulated whether each duty is managerial
or executive. Thus, the AAO must attempt to glean the nature of the beneficiary's proposed duties from
the vague descriptions submitted.
The petitioner indicates that the beneficiary will spend 50 percent of his time to "management decisions
including financial decisions." The record does not indicate that the U.S. company employed a financial
manager and staff. The lack of a financial manager for the beneficiary to supervise raises questions as to
whether the beneficiary is managing these activities or actually performing the petitioner's sales and
marketing duties.
The petitioner further states that the beneficiary will spend 25 percent of his time to "supervision of day­
to-day operations." Without additional clarification from the petitioner regarding the managerial or
executive duties involved, the AAO cannot distinguish this vague responsibility from routine
administrative tasks. As noted above, the petitioner has not clearly described the U.S. company's
business activities and therefore it is impossible to determine if the day-to-day activities managed by the
beneficiary are managerial or executive in nature. Going on record without supporting documentary
evidence is not sufficient for purposes of meeting the burden of proof in these proceedings. Matter of
Soffici, 22 I&N at 165.
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In addition, the petitioner states that the beneficiary will spend in total 15 percent of his time to "contract
negotiations and business development." These duties require market research, administrative and
finance functions in order to obtain the required capital and funding, and include negotiating contracts,
duties which have not been shown to be managerial or executive in nature. Further, the petitioner has not
further described the u.s. company's expansion or investment plans, or provided evidence associated with
these activities. Going on record without supporting documentary evidence is not sufficient for purposes
of meeting the burden of proof in these proceedings. Id.
The petitioner also states that the beneficiary will spend 10 percent of his time to "company
representation and public relations." The record does not resolve whether the beneficiary will perform the
day-to-day tasks to develop and implement the marketing programs and policies, and customer relation
policies, or whether he will direct others to do so. The petitioner indicated a vague description of the
duties performed by the human resources/marketing manager who is supervised by the beneficiary,
however, the duties of the human resources/marketing manager do not appear to include managing the
public relations operations for the u.s. company. The lack of employees for the beneficiary to "direct
and coordinate" raises questions as to whether the beneficiary is managing these activities or actually
performing the petitioner's public relations duties.
As noted above, according to the petitioner's statement on Form 1-129,the U.S. company has two employees,
the beneficiary as vice president and one human resources/marketing manager. Counsel correctly observes
that a company's size alone, may not be the determining factor in denying a visa to a multinational manager
or executive. Pursuant to section 101(a)(44)(C) of the Act, 8 U.S.C. § 1101(a)(44)(C), if staffing levels are
used as a factor in determining whether an individual is acting in a managerial or executive capacity, CIS
must take into account the reasonable needs of the organization, in light of the overall purpose and stage of
development of the organization. In the present matter, however, the regulations provide strict evidentiary
requirements for the extension of a "new office" petition and require CIS to examine the organizational
structure and staffing levels of the petitioner. See 8 C.F.R. § 214.2(l)(l4)(ii)(D). The regulation at 8 C.F.R. §
214.2(l)(3)(v)(C) allows the "new office" 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 does not have sufficient staffing after one year to relieve the
beneficiary from primarily performing operational and administrative tasks, 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.
Furthermore, 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 ofa company may be especially relevant when CIS notes discrepancies
in the record and fails to believe that the facts asserted are true. Id.
At the time of filing, it appears that the u.S. company was providing consulting services to three
companies. On appeal, the petitioner submitted letters from the three companies in which the U.S.
company had established a consulting agreement. The letters specified the services the u.S. company
would provide to their companies. The services included: "management of our operational activities and
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various organizational departments including finance, sales, marketing and HRD," "responsible for
supervision and controlling the works of other departmental heads," "authorized to study the hotel market
for future acquisition purposes; prepare feasibility reports and make his recommendation;" and is
responsible for "establishing the goals and policies of the organization." The letters of reference indicate
that the beneficiary himself is responsible in performing these duties. Thus, if the beneficiary will be the
only employee providing the services offered by the u.s. entity by providing the consulting services to its
clients, it is reasonable to assume that the beneficiary will be performing the day-to-day operations and
directly providing the services of the business rather than directing such activities through subordinate
employees. An employee who "primarily" performs the tasks necessary to produce a product or provide
services is not considered to be "primarily" employed in a managerial or executive capacity. See sections
101(a)(44)(A) and (B) of the Act (requiring that one "primarily" perform the enumerated managerial or
executive duties); see also Matter of SofJici, 22 I & N Dec. at 165. Futhermore, in reviewing the above
mentioned letters, it appears that the three letters are all signed by the same individual. It is not clear why
three separate companies would have the same individual as signatory. Doubt cast on any aspect of the
petitioner's proof may, of course, lead to a reevaluation of the reliability and sufficiency of the remaining
evidence offered in support of the visa petition. Matter ofHo, 19 I&N Dec. 582, 591 (BIA 1988).
A critical analysis of the nature of the petitioner's business undermines counsel's assertion that the
subordinate employee relieves the beneficiary from performing non-qualifying duties. As noted, the U.S.
company employed the beneficiary as vice president and one human resources/marketing manager. In
reviewing the brief job descriptions of the employees at the u.s. entity, submitted by the petitioner in a
letter dated January 12, 2006, it appears that the beneficiary and the human resources/marketing manager
are engaged in the operational and administrative tasks in running the business. However, it appears that
the human resources/marketing manager spends most of his time dealing with the administrative tasks,
market research and human resources policies. Based on the evidence submitted, it appears that the
beneficiary will be performing all or many of the various operational tasks inherent in operating the
business on a daily basis, such as acquiring clients, negotiating contracts, budgeting, and providing the
consulting services to its clients. Based on the record of proceeding, the beneficiary's job duties are
principally composed of non-qualifying duties that preclude him from functioning in a primarily
managerial or executive role. Based on the petitioner's representations, it does not appear that the
reasonable needs of the petitioning company might plausibly be met by the services of the beneficiary as
general manager and two managerial employees. Regardless, the reasonable needs of the petitioner serve
only as a factor in evaluating the lack of staff in the context of reviewing the claimed managerial or
executive duties. The petitioner must still establish that the beneficiary is to be employed in the United
States in a primarily managerial or executive capacity, pursuant to sections 101(a)(44)(A) and (B) or the
Act. As discussed above, the petitioner has not established this essential element of eligibility.
As noted above, counsel on appeal asserts that it is "unrealistic to expect this petitioner to be up and
running to the level of sophistication insinuated in the denial." In addition, the petitioner stated that the
United States company did not commence business until April 2005 since the beneficiary was delayed in
entering the U.S. However, the petitioner did not explain why the beneficiary delayed his entry into the
United States. The regulations at 8 C.F.R. § 214.2(l)(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. The
SRC 06 01353195
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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 ofMichelin Tire Corp., 17 I&N Dec. 248 (Reg. Comm. 1978).
In addition, 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 § 101(a)(44)(A)(ii) of the Act. The record establish that the
beneficiary will supervise a human resources/marketing manager.
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 101(a)(32) of the Act, 8 U.S.C. § 1101(a)(32), states that "[t]he 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 ofSea, 19 I&N Dec. 817 (Comm. 1988);
Matter ofLing, 13 I&N Dec. 35 (R.C. 1968); Matter ofShin, 11 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 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 has not, in fact, established that a bachelor's degree is
actually necessary to perform the administrative tasks and market research of the human resources/
marketing manager, the only subordinate supervised by the beneficiary. In addition, notwithstanding the
employee's job title, the petitioner has not established that the beneficiary's subordinate supervises other
employees or manages a function, such that he/she could be deemed a managerial or supervisory
employee.
Furthermore, on appeal, counsel asserts that the position offered to the beneficiary is in an executive
capacity. The statutory definition of the term "executive capacity" focuses on a person's elevated position
within a complex organizational hierarchy, including major components or functions of the organization,
and that person's authority to direct the organization. Section 101(a)(44)(B) of the Act, 8 U.S.C. §
1101(a)(44)(B). Under the statute, a beneficiary must have the ability to "direct the management" and
"establish the goals and policies" of that organization. Inherent to the definition, the organization must
have a subordinate level of managerial employees for the beneficiary to direct and the beneficiary must
primarily focus on the broad goals and policies of the organization rather than the day-to-operations of the
enterprise. An individual will not be deemed an executive under the statute simply because they have an
executive title or because they "direct" the enterprise as the owner or sole managerial employee. The
beneficiary must also exercise "wide latitude in discretionary decision making" and receive only "general
supervision or direction from higher level executives, the board of directors, or stockholders of the
organization." Id. A managerial or executive employee must have authority over day-to-day operations
beyond the level normally vested in a first-line supervisor, unless the supervised employees are
professionals. See Matter of Church Scientology International, 19 I&N Dec. 593, 604 (Comm. 1988). As
the beneficiary supervises one human resources/marketing manager, the U.S. company has not
SRC 06 013 53195
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established a complex organizational structure which would elevate the beneficiary beyond a first-line
supervisor. In the instant matter, the petitioner has not established evidence that the beneficiary is
employed in an executive capacity with the U.S. entity.
Finally, the AAO acknowledges counsel's contention that the service further erred in not identifying the
position as an essential function within the petitioner's organization. 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). The term "essential function" is not defined
by statute or regulation. If a petitioner claims that the beneficiary is managing an essential function, the
petitioner must furnish a written job offer that clearly describes the duties to be performed in managing
the essential function, i.e. 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(l)(3)(ii). In addition, the petitioner's description of the beneficiary's daily
duties must demonstrate that the beneficiary manages the function rather than performs the duties related
to the function. 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. Boyang, Ltd. v.
I.N.S., 67 F.3d 305 (Table), 1995 WL 576839 (9th Cir, 1995)(citing Matter of Church Scientology
International, 19 I&N Dec. 593, 604 (Comm. 1988)). In this matter, the petitioner has not provided
evidence that the beneficiary manages an essential function.
Beyond the required description of the job duties, CIS reviews the totality of the record when examining
the claimed managerial or executive capacity of a beneficiary, including the petitioner's organizational
structure, the duties of the beneficiary's subordinate employees, the presence of other employees to
relieve the beneficiary from performing operations duties, the nature of the petitioner's business, and any
other factors that will contribute to a complete understanding of a beneficiary's actual duties and role in a
business. In the case of a function manager, where no subordinates are directly supervised, these other
factors may include the beneficiary's position with in the organizational hierarchy, the depth of the
petitioner's operations, the indirect supervising of employees within the scope of the function managed,
and the value of the budgets, products, or services that the beneficiary manages.
As discussed above, the petitioner has not described the beneficiary's actual duties or the nature of its
business in any detail, nor has the petitioner identified sufficient employees within the petitioner's
organization, subordinate to the beneficiary, who would relieve the beneficiary from performing routine
duties inherent to operating the business. The fact that the beneficiary has been given a managerial job
title and general oversight authority over the business is insufficient to elevate his position to that of a
"function manager" as contemplated by the governing statute and regulations.
Other than stating that the proposed position will be responsible for managing an unidentified essential
function, counsel provides no explanation or evidence in support of his claim that the beneficiary would
qualify as a function manager pursuant to section 101(a)(44)(A)(ii) of the Act. The unsupported
statements of counsel on appeal or in a motion are not evidence and thus are not entitled to any
evidentiary weight. See INS v. Phinpathya, 464 U.S. 183, 188-89 n.6 (1984); Matter ofRamirez-Sanchez,
17 I&N Dec. 503 (BIA 1980).
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The AAO has long interpreted the regulations and statute to prohibit discrimination against small or
medium size businesses. However, the AAO has also long required the petitioner to establish that the
beneficiary's position consists of primarily managerial and executive duties and that the petitioner has
sufficient personnel to relieve the beneficiary from performing operational and administrative tasks. It is
the petitioner's obligation to establish however, through independent documentary evidence that the day­
to-day non-managerial and non-executive tasks of the petitioning entity are performed by someone other
than the beneficiary, although, as correctly noted by counsel, these employees need not be professionals.
Here, the petitioner has not met this burden.
Furthermore, counsel for the petitioner discusses prior cases approved by the AAO where the AAO held
that a small staff does not justify a denial where the beneficiary holds wide decision-making discretion.
Counsel further refers to an unpublished decision in which the AAO determined that the beneficiary met
the requirements of serving in a managerial and executive capacity for L-1 classification even though he
was the sole employee. Counsel has furnished no evidence to establish that the facts of the instant
petition are analogous to those in the unpublished decision. While 8 C.F.R. § 103.3(c) provides that AAO
precedent decisions are binding on all CIS employees in the administration of the Act, unpublished
decisions are not similarly binding.
Finally, counsel asserts on appeal that the beneficiary manages "independent contractors and leased
employees" such as a lawyer to handle the legal issues of the U.S. company, and an accounting finn to
handle the company's accounting needs. Although counsel states on appeal that the petitioner has
contractual employees in the areas of accounting and legal services, the petitioner has neither presented
evidence to document the existence of these employees nor identified in detail the services these
individuals provide. Additionally, the petitioner has not explained how the services of the contracted
employees obviate the need for the beneficiary to primarily conduct the petitioner's business. Without
documentary evidence to support its statements, the petitioner does not meet its burden of proof in these
proceedings. Matter ofSoffici, 22 I&N Dec. at 165.
Based on the foregoing discussion, the petitioner has not established that the beneficiary would be
employed in a primarily managerial or executive capacity under the extended petition. For this reason, the
appeal will be dismissed.
Beyond the decision of the director, the record does not contain sufficient evidence that the petitioner has
been engaged in the regular, systematic, and continuous provision of goods and/or services in the United
States for the entire year prior to filing the petition to extend the beneficiary's status. As noted above, the
petitioner submitted three consulting agreements between the United States company and three separate
companies. In addition, on appeal, the petitioner submitted letters from the three companies in which the
U.S. company established a consulting agreement. In reviewing the letters, all three letters have the same
signature. In addition, two of the companies are international hotel companies and the letterheads do not
match the trademark logo of these companies. Doubt cast on any aspect of the petitioner's proof may, of
course, lead to a reevaluation of the reliability and sufficiency of the remaining evidence offered in
support of the visa petition. Matter ofHo, 19 I&N Dec. 582, 591 (BIA 1988).
Accordingly, the evidence submitted on appeal is not credible and will not be given any weight in this
proceeding. If CIS fails to believe that a fact stated in the petition is true, CIS may reject that fact. See
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e.g., Anetekhai v. I.NS., 876 F.2d 1218, 1220 (5th Cir.1989); Lu-Ann Bakery Shop, Inc. v. Nelson, 705 F.
Supp. 7, 10 (D.D.C.1988); Systronics Corp. v. INS, 153 F. Supp. 2d 7, 15 (D.D.C. 2001). Moreover, the
petitioner's submission of altered documents brings into question the reliability and sufficiency of the
remaining evidence offered in support of the visa petition. See Matter ofHo, 19 I&N Dec. at 591. Based
on the foregoing discussion, the petitioner has not established that the petitioner has been doing business
in the United States for the year preceding the filing of the petition. For this reason, the appeal will be
dismissed.
Furthermore, beyond the decision of the director, the petitioner has not submitted sufficient evidence to
establish the existence of a qualifying relationship between the United States entity and the foreign entity
pursuant to 8 C.F.R. § 214.2(l)(1)(ii)(G). As general evidence of a petitioner's claimed qualifying
relationship, stock certificates alone are not sufficient evidence to determine whether a stockholder
maintains ownership and control of a corporate entity. 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 ofSiemens Medical Systems, Inc., 19 I&N Dec. 362 (BIA 1986). Without full disclosure of all
relevant documents, CIS is unable to determine the elements of ownership and control.
The petitioner claims to be a subsidiary of the foreign company, The
petitioner stated that the foreign parent company owns 51% of the U.S. company. The petitioner
submitted the U.S. company's stock ledger with the initial petition which verified that the foreign
company ownes 51% of the U.S. company. However, in response to the director's request for evidence,
the petitioner submitted a completely different stock ledger for the U.S. company as previously submitted.
The information in the subsequent stock ledger is not the same as the first stock ledger. It is incumbent
upon the petitioner to resolve any inconsistencies in the record by independent objective evidence. Any
attempt to explain or reconcile such inconsistencies will not suffice unless the petitioner submits
competent objective evidence pointing to where the truth lies. Matter of Ho, 19 I&N Dec. 582, 591-92
(BIA 1988). Doubt cast on any aspect of the petitioner's proof may, of course, lead to a reevaluation of
the reliability and sufficiency of the remaining evidence offered in support of the visa petition. Matter of
Ho, 19 I&N Dec. at 591. For this additional reason, the petition cannot be approved.
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),
aff'd. 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 the decision. 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. § 1361. Here, that
burden has not been met. Accordingly, the appeal will be dismissed.
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ORDER: The appeal is dismissed.