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PUBLIC COPY 
U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. A3000 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
Petition: 
 Petition for a Nonimmigrant Worker Pursuant to Section 10 1 (a)(15)(L) of the Immigration 
and Nationality Act, 8 U.S.C. 9 1101(a)(15)(L) 
IN BEHALF OF PETITIONER: 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to 
the office that originally decided your case. Any further inquiry must be made to that office. 
I 
~0lk-t P. Wiemann, Chief 
Administrative Appeals Office 
SRCO405953880 
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 AAO will dismiss the appeal. 
The petitioner filed this nonimmigrant petition seeking to qualify the employment of its financial consultant 
as an L-1 A nonimmigrant intracompany transferee pursuant to section 10 1 (a)( 1 5)(L) of the Immigration and 
Nationality Act (the Act), 8 U.S.C. $ 1101(a)(15)(L). The petitioner is a corporation organized under the laws 
Texas and is engaged in retail sales. The petitioner claims that it is the subsidiary of 
, located in Mumbai, India. 
The director denied the petition concluding that: (1) the petitioner did not establish that the beneficiary will be 
employed in the United States in a primarily managerial or executive capacity, and (2) had not been employed 
abroad in a 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 the petitioner 
demonstrated eligibility and that the director's conclusions were in error. In support of this assertion, the 
petitioner submits additional documentation. 
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 
education, training, and employment qualifies hirnher to perform the intended 
SRCO405953880 
Page 3 
services in the United States; however, the work in the United States need not be the 
same work which the alien performed abroad. 
The first 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 10 1 (a)(44)(A) of the Act, 8 U.S.C. 8 1 10 1 (a)(44)(A), defines the term "managerial capacity" as an 
assignment within an organization in which the employee primarily: 
(i) 
 manages the organization, or a department, subdivision, function, or component of 
the organization; 
(ii) 
 supervises and controls the work of other supervisory, professional, or managerial 
employees, or manages an essential function within the organization, or a department 
or subdivision of the organization; 
(iii) 
 if another employee or other employees are directly supervised, has the authority to 
hire and fire or recommend those as well as other personnel actions (such as 
promotion and leave authorization), or if no other employee is directly supervised, 
functions at a senior level within the organizational hierarchy or with respect to the 
function managed; and 
(iv) 
 exercises discretion over the day to day operations of the activity or function for 
which the employee has authority. A first line supervisor is not considered to be 
acting in a managerial capacity merely by virtue of the supervisor's supervisory 
duties unless the employees supervised are professional. 
Section 101(a)(44)(B) of the Act, 8 U.S.C. 
 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 described the beneficiary's job duties as follows: 
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Develop and implement financial plans of the firm by analyzing firm's financial status and 
utilizing investment strategies 
Compile and analyze financial information to prepare entries to accounts, such as general 
ledger accounts 
Document business transactions 
Direct business activities of the firm and examine firm's business operations to evaluate 
efficiency 
Set strategic financial planning goals 
Audit contracts, orders, and vouchers, and prepare reports to substantiate individual 
transactions prior to settlement 
Direct receipts and disbursements of funds and acquisition and sale of assets 
Analyze financial and operating statements of the firm 
Make reports and recommendations to the [mlanagement with regards to financial policies 
Establish, modify, document, and coordinate implementation of accounting and accounting 
control procedures. Devise and implement manual or computer-based system for general 
accounting 
Arrange for banking facilities and opening letters of credit 
Oversee work of finance and accounting personnel. 
On January 5, 2004, the director requested additional evidence. Specifically, the director listed the definition 
of managerial and executive capacity and requested that counsel address inconsistent evidence that had been 
submitted with the petition. 
In response, counsel for petitioner responded to the director's queries and submitted additional evidence in the 
form of organizational charts for the claimed qualifiing organizations, percentage breakdown of duties for 
beneficiary's employment abroad and with the petitioner, and a letter from a former employer submitted as 
evidence of beneficiary's actual name. 
On April 6, 2004, the director denied the petition. The director determined that the beneficiary had not been 
and would not be employed in a managerial or executive capacity. 
On appeal, counsel for the petitioner asserts that performance of duties constitutes management of a function 
and thus managerial capacity, and that beneficiary's duties are similar to that of a chief financial officer. 
Upon review, counsel's assertions are not persuasive. Managerial and executive capacity are defined by 
statute. 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. 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 petitioner cannot claim that some 
of the duties of the position entail executive responsibilities, while other duties are managerial or claim to be 
employed as a hybrid "executive/manager" and rely on partial sections of the two statutory definitions. 
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Page 5 
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). 
On appeal counsel for the petitioner fails to clearly address the director's queries. It should be noted that the 
documentary evidence submitted in support of petitioner's assertions are devoid of specifics and it cannot be 
determined exactly what type of business petitioner is operating or in what context the beneficiary performs 
her duties. The only articulation concerning petitioner's conduct of business is by counsel who states that the 
petitioner "sells household products and grocery" items. 
It is not clear from the record that the beneficiary will be operating in a managerial or executive capacity. 
The petitioner has submitted two different organizational charts which do not correspond. In addition these 
organizational charts reveal that a person with a title of president is also listed as a sales supervisor under the 
beneficiary, and that the person listed as vice president will also report to the beneficiary. This raises doubt 
about the actual capacity in which these two individuals are employed. Without a further articulation by the 
petitioner of how such an individual can perform as both the president and a sales manager under the 
beneficiary the organizational charts are of little probative value in establishing the facts surrounding 
beneficiary's employment. 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). 
When examining the managerial or executive capacity of a beneficiary, Citizenship and Immigration Services 
(CIS) reviews the totality of the record, including descriptions of a beneficiary's duties and his or her 
subordinate employees, the nature of the petitioner's business, the employment and remuneration of 
employees, and any other facts contributing to a complete understanding of a beneficiary's actual role in a 
business. The evidence must substantiate that the duties of the beneficiary and his or her subordinates 
correspond to their placement in an organization's structural hierarchy; artificial tiers of subordinate 
employees and inflated job titles are not probative and will not establish that an organization is sufficiently 
complex to support an executive or manager position. An individual whose primary duties are those of a 
first-line supervisor will not be considered to be acting in a managerial capacity merely by virtue of his or her 
supervisory duties unless the employees supervised are professional. Section 101(a)(44)(A)(iv) of the Act. 
In the present matter, the totality of the record does not support a conclusion that the beneficiary's 
subordinates are supervisors, managers, or professionals. Instead, the record indicates that the beneficiary's 
subordinates perform the actual day-to-day tasks of operating the business, such as sales. The petitioner has 
not provided evidence of an organizational structure sufficient to elevate the beneficiary to a supervisory 
position that is higher than a first-line supervisor of non-professional employees. Pursuant to section 
10 l(a)(44)(A)(iv) of the Act, the beneficiary's position does not qualify as primarily managerial or executive 
under the statutory definitions. 
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Counsel for petitioner makes numerous conclusory assertions regarding the beneficiary's employment 
capacity and cites several sources that are not in the pertinent regulations. The director acted properly in 
comparing the beneficiary's asserted duties with the proper standard established by statute and regulation. In 
addition, counsel's reasoning is circular and based on general characterization of the beneficiary's duties. The 
petitioner must demonstrate that the beneficiary is actually employed in a primarily managerial and executive 
capacity through the submission of probative documentary evidence. The materials cited by counsel are not 
related to this classification, and were not drafted specifically for this classification as the regulations cite 
above. 
The petitioner's assertions of the beneficiary's duties are not supported by the record. In this case the record 
contains no corroborating evidence of the beneficiary's asserted duties, such as financial reports, market 
analysis, disbursements or documentation of business transactions. Going on record without supporting 
documentary evidence is not sufficient for purposes of meeting the burden of proof in these proceedings. 
Matter of SofJici, 22 I&N Dec. 158, 165 (Comrn. 1998) (citing Matter of Treasure Craft of California, 14 
I&N Dec. 190 (Reg. Comm. 1972)). Without documentary evidence to support the claim, the assertions of 
counsel will not satisfy the petitioner's burden of proof. The unsupported assertions of counsel do not 
constitute evidence. Matter of Obaigbena, 19 I&N Dec. 533, 534 (BIA 1988); Matter of Laureano, 19 I&N 
Dec. 1 (BIA 1983); Matter of Ramirez-Sanchez, 17 I&N Dec. 503,506 (BIA 1980). 
The job description provided by counsel is repetitive and vague. 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. tj 1101(a)(44)(A)(ii). Statements such as "direct business activities of 
the organization and examining the business operations to evaluate financial efficiency" are too vague to be of 
any probative value. 
Another example of the vague description of duties is the assertion that beneficiary will "prepare reports to 
substantiate individual transactions prior to settlement" and the duty to "establish, modify, document and 
coordinate accounting control procedures with the subordinate supervisor/manager personnel." Despite 
having provided an organizational chart that allegedly details who is and will be working for petitioner, this 
description does not detail who the "subordinate supervisor/rnanager personnel" is, nor is it clear that such 
employees have been hred by petitioner. Counsel adds that beneficiary will "[dlevise and implement manual 
or computer-based system for general accounting." This statement is vague as well, and could possibly mean 
beneficiary will program a cash register or install accounting software on an office computer. Thus, the 
petitioner's failure to document the record with evidence corroborating its assertions prevents CIS from 
determining the beneficiary's actual employment capacity. 
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 description that clearly describes 
the duties to be performed, 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. 8 C.F.R. tj 214.2(1)(3)(ii). In addition, the petitioner's description of the beneficiary's daily duties 
SRC0405953880 
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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 International7 19 
I&N Dec. 593, 604 (Comrn. 1988)). In this matter there are other employees performing financial support 
services but it is not claimed that beneficiary manages these employees or their "financial" activities. 
Counsel admits that this description of beneficiary's duties of is "broad" in his appeal brief. However, the 
regulations require a detailed, specific description of the beneficiary's daily activities. Based on the job a 
description alone the petitioner has indicated that the that beneficiary will be performing activities that 
comprise a part of the finance and accounting function and not managing it. The duties state that beneficiary 
will "compile and analyze . . . audit . . . establish, modify and document" as opposed to directing any of these 
activities or duties. Counsel also mistakenly confuses discretionary authority over how the beneficiary's work 
product is completed with having discretionary authority over the accounting of finance function of the 
petitioner. In this case, the beneficiary is not reviewing the work of other financial employees, does not have 
authority over the day-to-day operations of a financial department, and does not organize or direct a financial 
department of the petitioner. 
Counsel for petitioner mischaracterizes the director's decision as being based on staffing levels. The director's 
conclusions were based on the fact that the petitioner failed to support its assertions that the beneficiary was 
supervising other employees in prosecuting the finance and managerial functions. The director did not state 
that the petition was denied based on staffing levels. In order to qualify as a "function manager" the 
petitioner must demonstrate that the beneficiary actually manages the function as opposed to performing the 
function. If the record does not support the existence of the claimed employees who perform the functions 
then the petitioner's assertion is not credible. Thus, the decision was not based on the petitioner's staffing 
levels, but on the fact that the petitioner's assertions were not credible because the record did not support the 
existence of employees that would perform the duties asserted by petitioner. 
The record is not persuasive in demonstrating that the beneficiary has been or 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 
nonimrnigrant 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 Colp., 17 I&N Dec. 248 (Reg. 
Cornm. 1978). Furthermore, 8 C.F.R. $ 214.2(1)(3)(v)(C) allows the intended United States operation one 
year within the date of approval of the petition to support an executive or managerial position. There is no 
provision in CIS regulations that allows for an extension of this one-year period. If the business is not 
sufficiently operational after one year, the petitioner is ineligible by regulation for an extension. In the instant 
matter, the petitioner has not reached the point that it can employ the beneficiary in a predominantly 
managerial or executive position. 
Accordingly, the petitioner has not established that the beneficiary will be employed in a primarily or 
managerial capacity, as required by 8 C.F.R. $2 14.2(1)(3). 
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The second issue in this matter is whether the beneficiary was employed abroad in a managerial or executive 
capacity. The organizational chart submitted indicates that the beneficiary did not have authority over the 
day-to-day activities of other employees performing financial functions. These employees have the title 
"Senior Executive - Finance" and "Finance Head." The beneficiary's title was "financial consultant." 
According to the lay out of the organizational chart the beneficiary appears to be placed above one employee 
but has a lesser title. Either the titles of the employees are inflated or the organizational chart is not accurate 
in depicting the actual hierarchy of the business. Given the other inconsistencies in the record and the 
director's request for evidence, the organizational chart alone is not sufficient to carry the petitioner's burden. 
As with other assertions in the petition, the petitioner's assertions on this issue are not supported by the record. 
There is also a significant discrepancy in the record as the organizational chart submitted for the foreign 
qualifying organization has been altered from its initial submission. Contra Organizational chart, attached 
hereto as petitioner's appeal exhlbit 1 (showing the "senior executive - finance" under beneficiary); 
Organizational chart, attached hereto as petitioner's initial exhibit 9 (showing no other employee under 
beneficiary). 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. 582, 591 (BIA 1988). If CIS fails to believe that a fact stated in the petition is true, CIS may reject 
that fact. Section 204(b) of the Act, 8 U.S.C. § 1154(b); see also Anetekhai v. I.N.S., 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). The organizational chart for the foreign organization has been 
altered from its original form, and the AAO thus rejects the organizational chart for the truth of the matter 
asserted - that the beneficiary occupied a position of managerial or executive capacity while employed 
abroad. 
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), afyd. 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). 
Beyond the decision of the director there does not appear to be a qualifying relationship. It is fundamental to 
this nonimrnigrant classification that there be a United States entity to employ the beneficiary. 
In this case the petitioner is incorporated and thus a distinct entity and not a branch office of the same 
employer. The 1-129 form alleges that 51% of its organization is owned by the foreign organization, however 
the stock certificate submitted by counsel shows that the foreign organization only owns 12,750 of 1,000,000 
authorized shares. Furthermore, the petitioner has submitted only certificate seventeen, without disclosing the 
ownership of numbers one through sixteen. As such, the petitioner has not established that it has a qualifying 
relationship with a qualifying organization. 
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 
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sought remains entirely with the petitioner. Section 291 of the Act, 8 U.S.C. 5 1361. Here, that burden has 
not been met. 
ORDER: The appeal is dismissed.