dismissed L-1A Case: Seafood Import/Export

U.S. Department of homeland Securitk 
~-~d.bdehmi&D 
20 Massncl~usctt~ AVL' N W . Rnl A3042 
Wdsh~ngton. I)C 20529 
P- dearly unlnrrrradpd 
U. S. Citizenship 
and Immigration 
FILE: SRC 02 264 5 1879 Office: TEXAS SERVlCE CENTER Date: JUN 2 8 2005 
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section IOl(a)(lSXL) of the lmmigration 
and Nationality Act, 8 U.S.C. 5 1 101 (a)(IS)(L) 
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 oftice. 
'j Robert P. Wiernann, Director 
0 
dministrative Appeals Office 
SRC 02 264 5 1879 
Page 2 
DISCUSSION: The nonimmigrant visa petition was denied by the Director, Texas Service Center. The 
matter is now before.the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. 
~ccoiding to the documentary evidence contained in the record, the petitioner was incorporated 
January 2, 2002, and states that it is in the business of importing and exporting fresh and frozen seafood. The 
petitioner claims to be a subsidiary of ocated in Lima, Peru. The 
petitioner claims four employees. It seeks to employ the beneficiary temporarily in the United States as the 
systems manager of its new office for three years, at an annual salary of $35,000.00. The director determined 
- that the petitioner failed to establish that the beneficiary had been employed by the foreign entity primarily in 
a managerial or executive capacity for one continuous year within three years preceding the filing of the 
petition. 
On appeal, counsel disagrees with the director's decision and asserts that the evidence is sufficient to 
demonstrate that the beneficiary has been employed by the foreign entity in a managerial or executive ' 
capacity for one continuous year within three years preceding the filing of the petition. 
To establish L-l eligibility under section 101(a)(15)(L) of the Immigration and Nationality Act (the Act), 
8 U.S.C., $ I 1 Ol(a)(lS)(L), the petitioner must demonstrate that the beneficiary, within three years preceding 
the beneficiary's application for admission into the United States, has been employed abroad in a qualifying 
managerial or executive capacity. or in a capacity involving specialized knowledge. for one continuous year 
by a qualifying organization, and seeks to enter the United States temporarily in order to continue to render , 
his or her services to the same employer. or a subsidiary or affiliate thereof, in a capacity that is managerial. 
executive, or involves specialized knowledge. 
The regulation at 8 C.F.R. 4 2 14.2(1)(l)(ii) states, in part: 
hitracompany tran.s@ree means an alien who, within three years preceding the time of his or her 
application for admission into the United States, has been employed abroad continuously for one 
year by a firm or corporation or other legal entity or parent, branch, affiliate, or subsidiary 
thereof, and who seeks to enter the United States temporarily in order to render h~s or her 
services to a branch of the same employer or a parent, affiliate, or subsidiary thereof in a capacity 
that is managerial, executive. or involves specialized knowledge. 
The regulation at 8 C.F.R. 4 214.2(1)(3) states that an individual petition filed on Fonn 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 )(I )(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 02 264 5 1879 
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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 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(1)(3)(v) states that if the petition indicates that the beneficiary is coming to 
the United States as a manager or executive to open or to be employed in a new office in the United States, the 
petitioner shall submit evidence that: 
(A) Sufficient physical premises to house the new office have'been secured; 
(B) The beneficiary has been employed for one continuous year in the three year period 
preceding the filing of the petition in an executive or managerial capacity and that the 
proposed employment involved executive or managerial authority over the new 
operation; and 
(C) The intended United States operation, within one year of the approval of the petition, 
will support an executive or managerial position as defined in paragraphs (1)(1 Xii)(B) or 
(C) of this section, supported by information regarding: 
(1) The proposed nature of the ofice describing the scope of the entity, its 
organizational structure, and its financial goals; 
(2) The size of the United States investment and the financial ability of the 
foreign entity to remunerate the beneficiary and to commence doing 
business in the United States; and 
(3) The organizational structure of the foreign entity. 
The issue in this proceeding is whether the petitioner has submitted sufficient evidence to establish that the 
beneficiary had been employed by the foreign entity primarily in a managerial or executive capacity for one 
continuous year, within three years preceding the filing of the petition. 
Section 1 Ol(a)(44)(A) of the Act, 8 U.S.C. $ 1 IOl(a)(44)(A), provides: 
The term "managerial capacity" means an assignment within an organization in which the 
employee primarily- 
(;) 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 02 264 5 1879 
Page 4 d 
(iii) 
(iv) . 
If another employee or other e~nployees 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 
Exercises discretion over the day-to-day operations of the 
activity or fynction for which the employee has authority. A 
first-line supervisor is not considered to be acting in a 
managerial capacity merely by virtue of the supervisor's 
supervisory duties unless the employees supervised are 
professional. 
Section lOl(a)(44)(B) of the Act, 8 U.S.C. 8 1<01(a)(44)(~). 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 bard of directors, or stockholders of the 
organization. 
In the petition the petitioner described the beneficiary's foreign job duties as: 
[The beneficiarvl worked from March 1998 to June 2001 im 
a n ana 
*in 
to the present at [the U.S. entity] as a systems manager. 
When requested to summarize'thc beneficiary's education and work experience, the petitioner responded in 
the petition by stating: 
[The beneficiary] has an Associate in ~lectrdnic Engineering from Universidad Catolica del 
Peru. He worked as a[nl annalist [sic] program 
June ZOO1 He has been working ig 
December 2001 until present. [sic] Since May 2001 until present i 
system manager. 
SRC 02 264 5 1879 
Page 5 
When asked for the dates of the beneficiarv's ern~lovment with the foreign entitv. the petitioner wrote in the 
In the letter of support, dated August 30, 2002, and signed by counsel of record as the preparer and- 
he beneficiary's duties at the foreign entity were described as: 
[The beneficiary's] most recent foreign position with [the foreign entity] was as systems 
manager. In this position he had the full responsibility for the qresearch functions arid 
operations of the company's development and sale of fish and fish by products [sic] by 
locating the best opportunities for the company. 
In a translated letter entitled "Certificate of Employment" which was signed by and 
dated August 26, 2002, it is stated: "We certify that [the beneficiary] . . . has been working in the company 
working as systems manager since the month of December of 2000 
to the present date." 
The petitioner submitted a translated copy of the beneticiary's resume, which read in part: 
WORK EXPERIENCE 
Period: 
Place: 
- -- 
Description: Program developer for the analysis of costs and inventory 
Period: 
Place: 
Description: 
. . 
Period: : ' 
Place: 
Description: 
Period: 
Place: 
Description: 
Part T~me 
Managing clients data base 
Prograni developer for the analysis of costs and inventory 
March 20. 1998 - June 15.200 1 
Analysis. development of the Mesa de Dinero System BacTrader . . . 
In the.three projects I worked as an analystlprogrammer. 
The petitioner submitted copies of the beneficiary's passport and Form 1-94. The doculner~ts indicated that 
the beneficiary entered the United States on a tourist B-2 nonimniigrant visa June 19, 2001, and departed 
December 11, 2001. The documents also indicated that the beneficiary again entered the United States on a 
8-2 visa May 13, 2002, with a departure date of November 12. 2002. The petitioner submitted copies of the 
U.S. entity's Articles of Incorporation, dated January 15, 2002, which, stated in part: "The names and 
SRC 02 264 5 1879 
Page 6 
addresses of the initial directors of this corporation are 
Miami, Florida . . . who shall be the initial director, president, and secretary." The petitioner submitted a copy 
of an application to the City of Hallandale Beach, Florida for an occupational license. signed by the 
berleticiary and dated July 29, 2002. The petitioner also submitted a copy of a business check written out to 
"City of Hallandale Beach," signed by the beneficiary, and dated July 29, 2002. The petitioner submitted 
copies of the U.S. entity's share certificates numbered two and three, signed by the beneficiary and dated 
February 6, 2002. The petitioner also submitted copies of the U.S. entity's bank statements, lease agreement, 
translated business plan, and an exclusivity contract, all signed by the beneficiary. The petitioner submitted 
multiple copies of the Certificate of Translator's Competence and the Certificate of Accuracy. The 
certificates read in part: 
ertify that 1 am competent to translate the original document from Spanish to 
English and that the translation is true and accurate to the best of my abilities. 
lbeing duly sworn. deposes and says: That I am familiar with both the 
English and the Spanish languages. That I have made the attached translation from the 
annexed document in the Spanish language and hereby certify that the same is a true and 
complete translation to the best of my knowledge, ability and belief. 
The director, in the Notice of Request For Evidence, stated: "Submit evidence of the staffing level of the 
foreign company. Give position titles and job duties of all employers. If you have too many employees to 
list, submit an organizational chart listing the number of en~ployees in each department." 
In response to the director's request for additional evidence, the petitioner submitted a translated copy of a 
staffing list containing the names. DNI numbers, and position titles for twelve employees of the foreign entity 
and two employees of the U.S. entity. The petitioner also submitted copies of U.S. bank statements, wire 
transfers. and business invoices. 
The director determined that the petitioner failed to submit sufficient evidence to establish that the beneficiary 
had been employed by the foreign entity for one continuous year within the three years preceding the filing of 
the petition in a managerial or execiitive capacity. The director noted that the beneficiary had been employed 
by thc foreign entity as a "Program Developer" on a part-time basis. 'The director also noted that the 
beneficiary's resume stated that he had been employed by the U.S. entity since May of 2002. The director 
noted that the beneficiary entered the linited States in R-2 status, which does not authorize employment. The 
director further noted that the beneficiary's foreign job description, "managing client's database and program 
developer for the analysis of costs and inventory," did riot meet the statutory and regulatory requirements for 
managerial or executive capacity. The director noted that the staffing list supplied by the petitioner did not 
list the beneficiary nor did it contain employee job descriptions, as requested. The director concluded by 
stating that the evidence was not sufficient to establish that the beneficiary's work for the foreign entity was 
managerial or executive in nature. 
On appeal, counsel disagrees with the director's decision and asserts that section six of the 1-129 and the 
certificate of enlployment from the foreign entity shows that the beneficiary has been employed by the foreign 
entity from "December 2000 to the present" as "Systems Manager." Counsel asserts that the letter of support 
submitted by the petitioner certifies that the beneficiary has been e~nployed by the foreign entity as a 
"Systems Manager." Counsel contends that the beneficiary has not been working for the U.S. entity since 
May of 2002. and that although such information was contained in the beneficiary's resume. it was a 
SRC 02 264 5 1879 
Page 7 
"scriber's error" committed during the typing process. Counsel also contends that the 1-94 record reflects that 
the beneficiary was admitted into the United States in 8-2 status, but that he was admitted after presenting a 
United States Visa that reflected a 0-IIB-2 status. Counsel continues by asserting that the beneficiary's dates 
of intended employment are from September 2002 to September 2005. Counsel asserts that the beneficiary 
was sent to the Florida office to assist with organizing the new conlpany and that, in fact, he did not begin 
employment with the petitioner until after the change of status request from B-1/B-2 to L-1 had been 
submitted. 
i 
Counsel contends that the beneficiary's foreign job descriptions contained in the 1-129 and letter of support 
are sufficient to qualify the beneficiary as a manager or executive. Counsel further asserts: 
However, to avoid any mtsconception or misunderstanding regarding [the beneficiary's] job 
duties as a Systems Manager are [sic] as follows: Plans, directs and coordinates the 
operations of the Company's Information Systems including computers. software (application 
systems), network and telecommunications by performing the following duties personally or 
through subordinate personnel. Manage all projects in the areas of System administration. 
software development and network Security and provide direct technical support in all theses 
areas. Consults with management to determine data processing requirements. Maintains 
current knowledge of new hardware and softwarc arid recommends upgrading to maintain an 
efficient operation. Coordinates the development, revisions and implementation of 
Information. Software development and Documentation and Project Management. 
Counsel contends that the beneficiary was not mentioned in the staffing list because "it was apparent from the 
application that the foreign company previously employed [the beneficiary] prior to his transfer to the U.S. 
company." Counsel further contends that the foreign entity was under the assumption that the request for 
evidence was in relation to its other employees, and not the beneficiary in that a number of documents had 
already been submitted to demonstrate the beneficiary's employment abroad. Counsel concludes by stating 
"we will attach the job duties that were previously requested." On appeal, the petitioner submits copies of 
job duty descriptions, an organizational chart, and an amended staffing list that now includes the name of the 
beneficiary. 
Upon review, counsel's assertions are not persuasive. The petition and the evidence submitted are not 
sufficient to establish that the beneficiary has been employed by a qualifying organization abroad, for one 
continuous year within three years preceding the filing of the petition, in a managerial or executive capacity. 
Counsel contends that the 1-129, letter of support, and the certificate of employment all confirm that the 
beneficiary has been employed by the foreign entity "from December 2000 to the present" in the capacity of a 
'L 
systems manager." Contrary to counsel's contentions, copies of the beneficiary's passport and Form 1-94 
demonstrate that he was admitted into the United States on a 8-2 nonimmigrant "tourist" visa on June 19, 
2001, and departed the United States on December 11, 2001. The documents also indicate that the 
beneficiary entered the United States again on a £3-2 visa May 13, 2002, with a departure date of November 
12, 2002. Furthermore, the beneficiary's resume confirms these gaps in employment. The B-2 nonimmigrant 
visa classification is specifically provided for aliens who have an unabandoned residence in a foreign country 
to seek temporary entry the United States for "pleasure;" a B-2 nonimmigrant is not authorized employment. 
Section IOI(a)(l S)(B) of the Act, 8 U.S.C. 4 1 101 (a)( 15)(B); .tee ulso, 8 C.F.R. 9 274a. 12 (listing the classes 
of aliens that arc authorized employment, without listing the B-2 nonimmlgrant classification). 
SRC 02 264 5 1879 
Page 8 
On appeal, counsel argues that the beneficiary had been elnployed by the foreign entity since December 3000 
as a systems manager. However, the information contained in the petition, which was signed by counsel as 
the "preparer," states that the beneficiary's status at the time the petition was filed was "BY and that "[the 
beneficiary] has been working for [the foreign entity] as a program developer since December 2001 until 
present." This description is repeated multiple times within the body of the petition. Furthermore, the 
beneficiary stated in his resume that he was employed by various Peruvian banks as an "analystlprogrammer" 
from March 20, 1998 to June 15,200l; and that from March 8,2002, to April 29,2002, he was employed by 
as a "systems developer." It is incumbent upon counsel to act with due diligence 
to avoid misrepresentations and misstatements in the immigrant visa process. See section 274C(a)(5) of tlie 
immigration and Nationality Act (the Act), 8 U.S.C. tj 1324(c). Furthermore, the initial descriptions of the 
beneficiary's foreign job duties drastically differ from the description given by counsel on appeal. The 
inconsistencies between counsel's assertions and the submitted evidence raise serious doubts regarding the 
claim that tlie foreign company employed the beneficiary in a qualifying capacity. See 8 C.F.R. 
5 214.2(1)(3)(iv). 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 evidcnce pointing to where the truth lies. Mutter of Ho, 19 
I&N Dec. 582, 591-92 (BIA 1988). If Citizenship and lmniigration Services (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. 9: 1154(b); see LIIJO 
Anetekhai v. I. N.S., 876 F.2d 12 18, 1220 (5th Cir. 1989); Lu-Ann Bukery Shop, Inc. v. Nelson, 705 F. Supp. 7, 
10 (D.D.C. 1988); Sy.stronics Cory. 17. INS, 153 F. Supp. 2d 7, 15 (D.D.C. 2001). The evidence fails to 
demonstrate that the beneficiary had been employed by a qualifying foreign entity in a managerial or 
executive capacity for one continuous year within three years preceding the filing of the petition. 
On review of the evidence contained in the record, the petitioner has failed to overcome the director's 
determination that the beneficiary was in violation of his B-2 status at the time the petition was filed. In the 
instant case, the petition was filed on September 9, 2002, and signed by counsel of record as the "person 
preparing the form." The petition was also signed by - vice president of the U.S. entity, 
under penalties of perjury. In the petition the petitioner wrote that the beneficiary's n'onimniigrant status'at 
the time the petit~on was filed was written as "02," and also provided the beneficiary's 1-94 Form number as 
requested. In part four, section (d) of the petition, which reads. "Are applications for replacementJinitial I - 
94's being filed with this petition," the petitioner responded by checking the box marked "No." TIie 
beneficiary stated in his resume under work experience: '-Period - May 1.2002 to the present; Place - 
. . .Florida; Description - program developer tor the analysis of costs and inventory." Counsel argues 
on appeal that the infortnation contained in the beneficiary's resume concerning his employment with the U.S. 
entity was a "scriber's error" in that the beneficiary did not begin ernploynlent with the U.S. company until 
after the instant petition was filed. Contrary to counsel's 'contentions, the U.S. entity's Articles of 
Incorporation, dated January 15, 2002, show that the beneficiary was appointed director, president, and 
secretary of the organization. 
The record also demonstrates that a business license application containing the beneficiary's signature was 
filed w~th the city of Hallandale Beach, Florida on July 29.2002. The petitioner submitted as evidence a copy 
of the U.S. entity's business check number 1001. which was made out to the City of Hallandale Beach on July 
29, 2002, and signed by the beneficiary. The IJ.S. entity'\ stock certificates numbers two and three were 
dated February 6, 2002, and also signed by the beneliciary. The beneticiary as "Occupant" signed the U.S. 
entity's lease agreement. dated August 2. 2002. .Phe record further demonstrates that the beneficiary as 
"Agent" also signed a Manifest of Merchandise - Carrier's Cert~ficate and Release Order, dated 
July 1 1, 2002. Again, it is incumbent upon counsel to uphold the ethical duties imposed on attorneys in an 
SRC 02 264 5 1879 
Page 9 
effort to combat fraud and misrepresentation in the immigration application processes. See, e.g 8 C.F.R. 
94 1003.102(c) and 6x1). Furthermore, the petitioner is obligated to clarify the inconsistent and conflicting 
testimony by independent and objective evidence. Martrr of Ho, .supra. Simply asserting that the reported . 
dates of employment were the result of "scriber's error" does not qualify as independent and objective 
evidence. Going on record without supporting documentary evidence is not sufficient for purposes of 
meeting the burden of proof in these proceedings. Ml~lfrr of Tretrsurr C'rcrfr of Chl$)rnilr, 14 I&N Dec. 190 
(Reg. Cornm. 1972). 
Beyond the decision of the director, a related issue is whether the petitioner has established that it has secured 
sufficient physical premises to house the new office. The record shows that the U.S. entity was established as 
an importer and exporter of fish and fish by-products. The petitioner submitted a copy of its lease and 
photographs of its office. In this matter, the petitioner has not described its anticipated space requirements for 
its import business and the lease in question does not spectfy the amount or type of space secured. The 
photographs submitted by the petitioner do not demonstrate that the U.S. entity has acquired adequate 
facilities to warehouse fish and fish by-products. It cannot be concluded that the petitioner has secured 
sufficient space to house the new office. For these additional reasons. the petition may not be approved. 
Another issue in this proceeding, not directly addressed by the director, is whether the petitioner has 
established that a qualifying relationship exists between the petitioning entity and a foreign entity pursuant to 
8 C.F.R. 5 2 14.2(1)(l)(ii)(G). The petitioner stated in the petition "[the foreign entity] is owned 100% by 
[the beneticiary]. [The U.S. entity] is owned 60% by [the foreign entity] and 40% by [the beneficiary] In the 
foreign entity's Annual Income Statement as well as the company's Constitution of Closed Anonymous 
Society, all of which counsel of record certified had been translated truthfirlly and accurately, it is noted that 
the stock distribution consist of four partners; each ownlng 25 percent of the total 100 shares of stock. It is 
incumbent upon the pet~tioner to resolve any inconsistenc~es in the record by independent objective evidence. 
Any attempt to explain or reconcile such inconsistenc~es w~ll not suffice unless the petitioner submits 
competent objective evidence pointlng to where the truth lies. hicrrtrr (,fHo, supru. The petitioner has not 
demonstrated that a qualifying relationship exists with a forergn entity and has not persuas~vely demonstrated 
that the foreign entity will continue doing business during the alien's stay in the United States. For these 
additional reasons, the petition niay not be approved. , 
Although not directly addressed by the director, a final issue to be addressed is whether the petitioner 
submitted sufficient evidence to establish that the heuefic~ary would be employed by the U.S. entity primarily 
in a managerial or executive capacity as defined at section 10 1(a)(44) of the Act. In a letter of support dated 
August 30, 2002, the petitioner described the beneficiary's proposed duties as: 
[The beneficiary] will fill the position of systems manager of [the U.S. entity]. He will have 
leadership responsibilities for the research functions and operations of the company's 
development and sale of the fish and fish by products [sic]. In managing functions, must 
initiate plan, [sic] and coordinate the key activities ncccssary to achieve technicat and 
commercial success. 
On review. the petitioner has provided a vague and nonspecific description of the beneficiary's duties that 
fails to demonstrate what the beneficiary will be doing on a day-to-day basis. In response to the director's 
request for additional evidence, the petitioner submitted a staffing list that showed the U.S. entity employed 
two individuals, a secretary and marketing representative. Even though the petitioner clainls that the 
beneficiary will be responsible for directing thc research function and operation of the company, there has 
SRC 02 264 5 1879 
Page 10 
been no evidence submitted to demonstrate that it has anyone on its staff to actually perform those functions. 
The record as presently constituted does not demonstrate that the beneficiary will be employed by the U.S. 
entity in a managerial or executive capacity or that the entity will be able to support a managerial or executive 
position within one year of operation. In addition, there is no evidence to establish that the beneficiary's 
services are to be used for a temporary period and that the beneficiary will be transferred to an assignmerlt 
abroad on completion of the temporary assignment in the United States pursuant to 
8 C.F.R. 9 214.2(1)(3)(vii). For these additional reasons, 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 
AAO even if the Service Center does not identify all of the grounds for denial in the initial decision. See 
Spencer Enterprises, Inc. v. Unite~iStu/e.s. 229 F. Supp. 2d 1025. 1043 (E.D. Cal. 2001). ujfd. 345 F.3d 683 
(9th Cir. 2003); see crlso Dor v. INS, 891 F.2d 997, 1002 n. 9 (2d Cir. 1989)(noting that the, AAO reviews 
appeals on a de novo basis). 
In visa petition proceedings, the burden of proving eligibility for the benefit sought rests solely with the 
petitioner. Section 291 of the Act, 8 L1.S.C. 1361. The petitioner has not sustained that burden. 
ORDER: The appeal is dismissed.