dismissed L-1A Case: Soccer

U.S. Department of Homel:tnd Security 
20 Massachusetts AIT.. N.& , RIII. A3042 
Washington. DC 20529 
~denthhg data Qle(ed ti, U.S. Citizenship 
prevent dearly OD- @ and Immigration 
~n-0r-m e,, ,,t. Services -- - 
PUBLIC COPY -*a 
F11e: WAC 04 140 53519 Office: CALIFORNIA SERVICE CENTER Date: N()v 2 8 2@5 
IN RE;. Petitioner: 
Beneficiary: 
Petit~on: Petition for a Nonirnmigrant Worker Pursuant to Section IOl(a)(lS)(L) of the Immi~~ation 
and Nationality Act, 8 U.S.C. § 1 lOl(a)(lS)(L) 
IN BEHALF OF PETITIONER: 
INSTRUCTIONS: 
Thls 1s the dec~sion of the Administrative Appeals Ofice in your case. All documents have been returned to 
the office that or~glnally decided your case. Any further inqulry must be made to that office 
P. Wiemann, Director 
Appeals Office 
WAC 04 140 53519 
Page 2 
DISCUSSION: The Director, California 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 eniploy the beneficiary as an L-I A nonimmigrant 
intracompany transferee pursuant to section 101(a)(15)(L) of the Immigration and Nationality Act (the Act), 8 
U.S.C. 5 1101(a)(15)(L). The petitioner is a Nevada corporation engaged in recruitment, training, and 
development of amateur and professional soccer players. The petitioner claims that it is the parcnt company 
of, Ltd., located in London, United Kingdom. The petitioner seeks to employ the beneficiary as its 
director of athletic programs for a three-year period. 
The director denied the petition concluding that the petitioner did not establish that the beneficiary will be 
employed in the United States in a primarily managerial or executive capacity.' 
The petitioner subsequently filed an appeal. The director declined to treat the appeal as a motion and 
forwarded the appeal to the AAF for review. On appeal, counsel for the petitioner objects to the director's 
implication that the beneficiary is a first-line supervisor, and asserts that he will supervise professional soccer 
, coaches. scouts and recruiters who in turn supervise subordinates. Counsel also emphasizes that the 
beneficiary "will .managi the direction of the company" and have authority to make discretionary decisions 
and establish goals and policies. Counsel submits a brief in support of the appeal. 
To establish eligibility for the L-1 nonimmigrant visa classification, the petitiolier must mect the criteria 
outlined in section IOl(a)(15)(L) of the Act. Specifically, a qualifying organization must have employed the 
beneficiary in a qualifying managerial or executive capacity, or in a specialized knowledge capacity, for one 
. continuous year within three years preceding the beneficiary's application for admission into the United 
States. In addition, the beneficiary must seek to enter the United States temporarily to continue rendering his 
or her services to the same employer or a subsidiary or affiliate thereof in a managerial, executive, or 
specialized knowledge capacity. 
The regulation at 8 C.F.R. 9 214.2(1)(3) states that an individual petition filed on Form 1-129 shall be 
accompanied by: 
(I) Evidence that the petitioner and the organization which employed or will employ the 
alien are qualifying organizations as defined in paragraph (I)(l)(ii)(G) of this section. 
(~i) Evidence that the alien willbe employed in an executive, managerial, or specialized 
knowledge capacity, including a detailed description of the services to be performed 
(iii) Evidence that the alien has at least one continuous year of full-time employment 
abroad with a qualifying organization within the three years preceding the filing of 
the petition. 
. . 
(iv) , Evidence that the alien's prior year of employment abroad was in a position that was 
managerial, executive or involved specialized knowledge and that the alien's prior 
WAC 04 140 53519 
Page 3 
.education, training, and employment qualifies himlher to perform the intended 
services in the United States; however, the work in the United States need not bc the 
same work which the alien performed abroad. 
The primary 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 101(a)(44)(A) of the Act, 8 U.S.C. 8 1101(a)(44)(A), defines the term "managerial capacity" as an 
assignment within an organization in which the employee primarily: 
(I) manages the organization, or a department, subdivision, funchon, or component of 
the organization; 
(ii) supervises and controls the work of other supervisory, professional, or rnanagenal 
employees, or manages an essential function within the organization, or a department 
or subd~vis~on of the organization; 
(111) ~f another employee or other employees are directly superv~sed, has the author~ty to 
h~re and fire or recommend those as well as other personnel actlons (such as 
promotion and leave authorization), or if no other employee IS d~rectly superv~sed, 
functions at a senior level with~n the organizational hierarchy or with respect to the 
functlon managed; and 
(iv) exercises discretion over the day to day operations of the activjty or function for 
which the employee has authority. A first line supervisor is not considered to be 
actlng 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. tj 1101(a)(44)(B), defines the term "executive capac~ty" as an 
assignment wlthin an organlzatlon In which the employee primarily: . 
(I) directs the management of the organization or a major component or function of the 
organization; 
(11) establishes the goals and policies of the organization, component, or function; 
(li~) exerclses w~de latltude m discret~onary decision making; and 
(IV) receives only general supervision or direct~on from hrgher level execut~ves, the board 
of d~rectors, or stockholders of the organization. 
'The nonimmigrant petition was filed on April 16, 2004. On Form 1-129, the petitioner described the 
beneficiary's proposed duties as: "Will direct coaching and training staff. Will arrange schedules for all 
WAC 04 140 535 19 
Page 4 
team[s] with competitive league and coaches. Is the hlnng and supervisory authority for all coaches and 
trainer and scout personnel." The petlt~oner indicated on Form 1-129 that it employed three ~ndividuals at the 
tlme of filing. 
In a  arch 15, 2004 letter submitted with the petition, counsel for the petitioner described the beneficiary's 
proposed duties as "director of Coaching and Player development": 
HIS duties will include but not be limited to the reciuitment, hiring and firing of all coaches 
for the various level leagues and 'programs, [cloordinate and de~elop'~1a~er recruitment staff 
such as scouts, agents, support staff. Direct the implementation of developed players to 
professional teams, negotiate and review [contracts] offered to players to insure that full 
value is received and the best deal can be made in behalf of the player. His primary duties of 
which 60 percent of more time will be spent will be to supervise the'different department 
managers, . such ... as chief scout, in developing their staffs. 
~he'director requested additional evidence on April 22, 2004. In part, the director instructed the petitioner to 
submit the following documents in order to establish that the beneficiary would be employed in a managerial 
or executive capacity: (1) a more detailed description of the beneficiary's proposed duties, including the 
percentage of time spent in each of the listed duties, and a list of employees the beneficiary will supervise, 
including their job titles and job descriptions; (2) the U.S. company's organizational chart, including brief job 
descriptions, educational level and annual salaries for all employees under the beneficiary's supervision; (3) 
copies of state quarterly wage reports for the previous three quarters; (4) copies of IRS Fonns 941, 
Employer's Quarterly Federal Tax Return, for the previous three quarters; (5) payroll summary, Forms W-2 
and, Forms W-3 evidencing wages paid to employees; and, (6) Federal and State income tax returns for the 
last tax year. 
The petitioner, through counsel, submitted a response to the director's request for evidence on July 12, 2004. 
In response to the director's request for a detailed job description of the proposed duties in the United States, 
counsel explained that the beneficiary has been dividing his time between the United States and Europe and 
would continue to do so under the approved L-1A petition. Counsel further described the beneficiary's duties 
with the petitioner and foreign entity as follows: 
His duties with the company have been many and varied. The past four years have been in the 
area of Program development, Director of Coaches and player identification and recruitment. 
He has been responsible for supervision of all coaches, trainers, and identification personnel 
(both in the US and Overseas). He has extensive travel throughout Europe, Africa and the 
United States. He has been accomplishing his duties by travelling on a tourist waiver visa. In 
the past 4 years he has entered and departed over 24 times. He has placed some 20 players in 
the training program. 
In the areaof Program Development he has structured programs for players in 4 different age 
'. groups. These programs involve skills training, one on one development training and actual 
game experience. 
WAC 04 140 535 19 
Page 5 
In the area of Dlrector of Coaches he has ldent~fied and co-hired . . .some 10 high level 
persons for md~vldual one and one programs, internal "mtramural" league development 
programs. These programs have seen over 100 ~ndtvldual players m some stage of 
development. The ind~vlduals range In age of m~ddle school, high school, through 
profess~onal players. 
In the area of Player Identification and Recruitment, he personally has traveled to Afnca, 
throughout Europe, and the Un~ed [SIC] States observing high school and college level 
players . . .. He has slgned numerous players to exclusive "representation contracts" to [the 
petitloner]. . . . 
He supervises all of the coaches and identification and recruitment personnel through a 
"reglonal based system.-He is in daily contact with the Senior Coach, who is respons~ble for 
all coaches and trainers. 
He is in daily contact with the lead recruiter in Africa and Europe. These lead recruiters have 
- by independent agreement - have [sic] diverse persons who begin the identification process 
of potential players. The recruiters who maintain individual files and statistics then follow the 
young players for potential. The persons will have at least an annual meeting to discuss these 
players in order to determine which one will be offered development and representation 
contracts. 
HIS time allocation for the last four years has been 70% on identification and recruitment and 
30% on coach development and supervision. 
Counsel explained that it has become impracticable for the beneficiary to continue to utilize the visa waiver 
program to enter theU.S., as he is required to be in the Unlted States for 100 to 120 days during the soccer 
season, and is not authorized to accept a salary in the United States. Counsel also revealed that the beneficiary 
had encountered concerns regarding his nonimrnigrant intent at the point of entry, and noted that the purpose 
of the instant petition was to allow the beneficiary to be placed on the U.S. payroll and to remain in the 
United States for periods of longer than 90 days. Counsel stated that the beneficiary would continue to 
supervise the U.S. coaches, senior coach, lead recruiter and independent contractor "scouts." 
The petitioner's organizational chart identifies the beneficiary as "director of operations" supervising a 
"player identification" employee (who is also identified as the head coach of the Nevada Wonders soccer 
team), two senior coaches, a vacant "soccer development programs" position, and an employee identified as 
"Nevada Soccer Academy." The chart also shows a lead recruiter scout and independent scouts under the 
"player identification" employee. The petitioner also submitted a chart for the foreign entity that shows that 
the lead recruiter and recruiter positions for Europe and Africa are vacant until 2005. 
WAC 04 140 53519 
. Page 6 . 
F~nally, the petitloner ~nd~cated that the company does not have a payroll or file quarterly tax retunls as all of 
~ts employees are paid as owners or contractors. The petltloner subm~tted ~ts check reglster for the 2003 year, 
which reflects interm~ttent payments to the beneficiary and the petitioner's other owner. 
On July 20, 2004, the director issued a second rkquest for evidence, instructing the petitioner to submit 
additional evidence to establish that the beneficiary will be employed in a managerial or executive capacity. 
Specifically, the director requested: a list of the specific discretionary decisions exercised by the beneficiary 
and a list of specific:goal~and policies he established during the preceding six months; evidence that he 
receives only general superiision from higher level executives, stockholders or the board of directors; and a 
specific day-today description of the duties the beneficiary has performed over the last six months. 
In a response dated septembe; 24,2004, counsel stated that the beneficiary will serve in an executwe capaclty 
and described h~s proposed dut~es as follows: 
[The beneficiary] directs the management of the entire European division of the company. In 
such capacity he- is the final authority on the signing of professional and or amateur soccer , 
., players. He directs the European and Africa Recruitment Supervisors who' in turn are 
responsible for individual country (Europe and Africa) recruiters. He is the final authority on 
all budget matters, and hiririg and firing of employees. He will, upon the issuance of the L-1 
, visa, maintain this capacity. He will be in Europe [an] average of 7 months a year and in .the 
United States the other five (5) months a year. 
Counsel further indicated that the beneficiary's specific discretionary decisions had included the creation of a 
coaches certification program, increasing the number of development teams in the petitioner's academy, 
hiring a "senior development coach," and creating a "Nevada Spccer Academy" cumculum for player 
development. The petitioner indicated that the bcneficiary's day-to-day job duties vary depending upon the 
time of year and the beneficiary's location, and provided the following description: 
a) Dunng soccer season will act as supervisory coach of senlor coach and ind~rectly team 
coaches (1 profess~onal team and 4-5 development teams). Dur~ng profess~onal season 
(US) w~ll scout opposlng league team ~dentrfy~ng players, hold coach's meetings, defined 
roles of team coaches depend~ng upon the schedule. 
b) Off-Season (US) on season (Europe) w~ll (m EuropeJAfrica) recrult players identified by 
Recrurters (scouts) as referred by of Europe and Afilca. W~ll travel to 
observe players, d~scuss players with Profess~onal league owners and coaches ~dent~fy~~lg 
development players and negotiate player contract for profess~onal services of 
development players to league owners. W~ll ~dentrfy players in need of development with 
future potentla1 to play in European Profess~onal leagues. Will recrult potent~al player In 
to development and contracts for future development and placement in European 
Professlonal Leagues. 
WAC 04 140 53519 
Page 7 
' c) Day to [dlay m US 1s mostly travel to watch developing players and recrult players to 
development program. Observe programs coachlng staff to Insure profess~onal conduct 
and coach abil~ty. And, [dlay to [dlay [olbservation of activit~es of [plrofess~onal staff of 
[alcademy [sltaff and Nevada Wonders [plrofessional [tleam. 
d) Day to [djay (UK) is mostly travel and personal contact with professional league owners 
and coaches and Direct supervisions [sic] of the regional recruiters and 
recruitment of players to the US academy and development league(s) and programs. 
On October 7,2004, the director denied the petition concluding that the beneficiary would not be employed in 
a managerial or executive capacity in the United States. The director determined that a preponderance of the 
beneficiary's duties have been and would be directly providin'g the services of the organization and 
supervising two non-professional employees. 'The director further observed that the petitioner had not 
established that the beneficiary would primarily manage the organization or a department or component of the 
organization, function at a senior level within an organizational hierarchy, supervise a subordinate staff of 
managerial, professional or supervisory personnel who would relieve him from performing non-qualifying 
duties, or manage an essential function of the organization. . 
On appeal, counsel reiterates portions of previously provided job descriptions and objects to the director's 
implication that the beneficiary does not manage an essential function of the organization. Counsel 
emphasizes that the purpose of the company is to develop soccer players to be able to compete prol'essionally 
and states: "The beneficiary is the person directly responsible for the recruitment, training and development of 
the athletes." Counsel also asserts that as one of two' owners of the U.S. company, the beneficiary has -. 
authority.to direct the management of the company,. establish goals and policies, and make discretionary 
decisions; and that he receives only minimal supervision from the other shareholder. Finally, counsel asserts 
that the director erroneously suggested that the beneficiary is only a first-line supervisor of non-professional 
employees. Counsel contends that the beneficiary "hires, fires and supervises professional soccer coaches, 
professional scouts, and recruiters, as well as being directly responsible 'for the professional development of 
the athletcs. 
Upon review of the petition and evidence, the petitioner has not established that the beneficiary will be 
employed in a managerial or executive capacity in the United States. 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. (i 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. 
In addition, 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 show 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 1:.2d 1533 
(Table). 1991 ~~9th Cir. July 30. 1991). The test is basic to ensure that a person not only has the 
requisite authority, but that a majority of his or her duties relate to operational or policy management, rather 
WAC 04 140 535 19 
Pagc 8 
than to the supervision of lower level employees, performance of the duties of another type of position, or 
other involvement in the operational activities of the company. 
Although counsel claims on appeal that the beneficiary will be employed in an executive capacity, the 
petitioner has stibmitted no evidence to establish that he will primarily perfom executive-level dulics related 
to directing'the management of the organization or establishing its goals and policies. Rather, as concluded by 
the director, the record shows that thc beneficiary will primarily be performing non-qualifying duties 
including providing instruction to coaches and players, and personally observing, identifying and recruiting 
soccer players. 
Initially, the petitioner, through counsel, stated that the beneficiary would devote 60 percent of his time to 
supervising department managers, who in turn would develop their own subordinate staff. The petitioner 
claimed to have three employees but did not submit evidence that it employed "department managers." In 
response to the director's first request for evidence to clarify the stated duties, counsel indicated that the 
beneficiaj devotes 70 percent of his time to "player identification and recruitment." It is incumbent upon the 
petitloner 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 @Ha, 19 l&N Dec. 582,591-92 (BIA 1988). Moreover, the 
purpose of the request for evidence is to elicit further information that clarifies whether eligjbjlity for t'he 
benefit sought has been established. 8 C.F.R. (i 103.2(b)(8). When responding to a request for evidence, a 
petitioner cannot offer a new position to the beneficiary, or materially change a position's title, its level of 
authority within the organizational hierarchy, or its associated job responsibilities. 
In his july 12, 2004 response to the director's request, counsel indicated that the beneficiary's responsibility 
for player identification and recruitment required the beneficiary to travel to Ahca, Europe and the United 
States to observe high school and college-leve'l players, sign players to representation contracts, and maintain 
daily contact with the "lead recruiters" in Africa and Europe. Counsel's response to the second request for 
evidence listed similar duties among the beneficiary's "day-to-day" tasks. Although counsel attempted to 
establish that the beneficiary supervises an established hierarchy of recruiters in Europe and Africa, the 
petitioner's organi.rationa1 chart for the foreign entity indicates that the "lead recruiter" positlons are "vacant 
until 2005." The petitioner also indicated on its organizational chart that it employed an individual,- 
who is responsible for "player identification" as well as being the head coach of the petitioner's 
franchise team. Although requested by the director, the petitioner did not submit evidence of wages paid to 
this employee or provide a job description for him. His employment and role within the company have not 
been substantiated, and the.AAO cannot assume that he relieves the beneficiary from performing non- 
qualifying duties associated with the petitioner's player recruitment function. Based on the evidence 
submitted, it is reasonable to assume that the beneficiary was directly responsible for recruiting activities, 
rather than managing these activities, at the time the petition was filed. Counsel did not explain how 
observing, recruiting and signing high school and college soccer players meets the definition of either 
managend or executive capacity. See section 101(a)(44) of the Act, 8 U.S.C. tj 1101(a)(44). These duties, 
which require 70 percent of the beneficiary's time, are duties necessary to provide a service and cannot be 
considered qualifying in nature. An employee who primarily performs the tasks necessary to produce a 
WAC 04 140 535 19 
Page 9 
product or to prov~de services IS not considered to be employed In a managerial or'executive capacity. Matter 
($Church Scientology International, 19 I&N Dec. 593,604 (Comm. 1988). 
In response to the first request for evidence, counsel lndlcated that the beneficlary devoted the renlaming 30 
percent bf his tlme to "coach development and superv~s~on." Although counsel stated that the beneficlary and 
the pet~tloner's other owner,, htred "some 10 hlgh level persons" the pet~t~oner's organlzat~onal 
chart ~dentlfies only two coaches - and In response to the second request for 
ev~dence, counsel md~cated that the beneficiary would superv~se the coach of the profess~onal team and four 
to five development team coaches. The petitloner has not subrn~tted ev~dence to establ~sh that ~t employed 
anyone other than the beneficlary and at the tlme the petitlon was filed. Going on record w~thout 
supporting documentary ev~dence 1s not sufficient for purposes of meetlng the burden of proof In these 
proceedings Matter of Sofficl, 22 I&N Dec. 158, 165 (Cornm. 1998) (citing Matter of Treasure Craff of 
California, 14 I&N Dec. 190 (Reg. Comm. 1972)). 
Further, the petitioner's supporting documents, including newspaper articles, brochures, and the franchise 
agreement for the petitioner's soccer team, indicate that the beneficiary,serves as an instructor for coaching 
clinics offered by the petitioner, as a coach for participants in the petitioner's youth soccer camps, and as head 
coach for the Nevada Wonders franchise professional soccer team. The Nevada Wonders 2003 brochure 
identifies the beneficiary as a "Defender/Coach whichsuggests that he actually plays soccer for the team as 
needed, in addition to serving as the coach. The petitioner has not substantiated its claim that the beneficiary 
performs a managerial or supervisory coaching role. 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 the beneficiary will be coaching 
soccer, the AAO again notes that an employee who primarily performs the tasks necessary to produce a 
product or to provide services is' not considered to be employed in a managerial or executive capacity. Matter 
of Church Scientology International, supra. 
On appeal, counsel attempts to establish that the beneficiary will be employed in a qualifying position by 
paraphrasing the statutory definition of "executive capacity." See section. IOl(a)(44)(B) of the Act, 8 U.S.C. 
§ i101(aj(44)(~j. Specifically, counsel states that the beneficiary will "manage the dircction of the 
company," "direct the management of the company," "establish goals," "make discretionary decisions" and 
"receive only minimal supervision." Conclusory assertions regarding the beneficiary's employment capacity 
are not sufficient. Merely repeating the language of the statute or regulations does not satisfy the petitioner's 
burden of .proof. -Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1 1'03, 1 108 (E.D.N.Y. 1989), ard, 905 5. 2d 4 1 
(2d. Cir. 1990); Avyr Associates. Inc. v. Meissner, 1997 WL 188942 at *S (S.D.N.Y.). The record'contains no 
additional independent evidence or explanation establishing that the beneficiary will work as an executive or 
manager in the United States, other than in position title. Merely claiming that the beneficiary is a manager or 
an executive is jnsufficient to establish eligibility. Counsel's statements on appeal are likewise unsupported 
by independent evidence, and are inconsistent with the evidence establishing that the beneficiary is primarily 
a recruiter and coach. Without documentary evidence to support the claim, the assertions of counsel will not 
satisfy the petitioner's burden of proof. The 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). 
WAC 04 140 53519 
Page 10 
On appeal, counsel asserts the director erroneously implied that the beneficiary does not manage an essential 
function. counsel suggests that the beneficiary manages a function because "he is directly responsible for the 
recruitment, training and development of the athletes," and "is directly responsible for the hiring and firing of 
Scouts, recruiters, trainers and coaches." 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)(~)(ii) of the Act, 8 U.S.C. 
(j 1101(a)(44)(A)(ii). The tek "essential function" is not defined by statute or regulation. If a petitioner 
claims that the beneficiary is managing an essential function, the petitioner must provide a detailed job 
description that identifies the fun'ction with specificity, articulates the.essentia1 nature of the function, and 
establishes the proportion of the beneficiary's daily duties attributed to' managing the essential function. 
8 C.F.R. .$ 214,2(1)(3)(ii). In addition, the petitioner's description of the beneficiary's daily duties must 
demonstrate .that the beneficiary manages the function rather than peflorms 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, L~~..v.'I.N.s., 67 F.3d 305 (Table), 
1995 WL 576839 (9th Cir, 1995)(citing Matter of Church Scientology Infernational, 19 I&N Dec. 593, 604 
(Comm. 1988)). In this matter, the petitioner has not provided evidence that the beneficiary manages an 
essential function. Whether the beneficiary is an "activity" or "function" manager turns in part on whether the 
petitioner has sustained its burden of establishing that his duties are "primarily" managerial. As discussed 
above, the petitioner has not met this burden. 
Finally, cbunsel contends an appeal that the beneficiary is not merely a first-line supervisor of non- 
professional employees as concluded by the director, but rather is and will be responsible for hiring and 
supervising professional coaches, scouts and recruiters. Upon review of the record, .the AAO cannot conclude 
that the beneficiary would supervise any employees at the time the petition was .filed. The petitioner claimed 
to employ three individuals as of April 2004 when the petition was filed. As discussed above, only four 
individuals were identified by name on the petitioner's organizational chart, including the beneficiary and'the 
petitioner's other ownet-, Although requested by the director, the petitioner did not provide 
evidence of any payments made to the other employees identified, nor did it provide iob descriptions for these . . 
individuals. The petitioner was put on notice of required evidence and given a reasonable opportunity to 
provide it: Failure to submit requested evidence that precludes a material line of inquiry shall be grounds for 
- ' denying the petition. 8 C.F.R. 5 103.2(b)(14). Based on the petitioner's and foreign entity's organizational 
charts, all other positions within the U.S. and foreie entities appeared to be vacant at the time of filing. 
Accordingly, the AAO will not consider whether the proposed subordinate staff would be employed in 
professional, supervisory or managerial positions. Although,the beneficiary may be responsible for hiring and 
supervising coaching and recruiting staff in the future, the petitioner must establish eligibility at the time of 
filing the nonimmigrant visa petition. A visa petition may not be approved at a ikture date after the petitioner 
or beneficiab becomes elig~ble under a new set of facts. Matter of Michelin Tire Corp., 17 I&N Ilec. 248 
(Reg. Comm. 1 978). 
In sum, the record indicates that the beneficiary would primarily serve as a coach, instructor, and recruiter, 
with any managerial duties being incidental to these non-qualifying duties. While the AAO does not doubt 
counsel's claim that the beneficiary's services are valuable to the organization, the petitioner still has the 
burden of establishing that the benefic~ary's duties will be primarily managerial or executive in nature. The 
petitioner has not met this burden. Accordingly, the appeal will be dismissed. 
Beyond the decision of the director, the petitioner has not established that it has a qualifying relationship with 
the beneficiary's, foreign employer as required by 8 C.F.R. 4 214.2(1)(l)(ii)(G), as the petitioner has failed to 
establish that the foreign entity is a qualifying organization engaged in the regular, systematic, and c,ontinuous 
provision of goods andlor services pursuant to 8 C.F.R. 4 214.2(1)(l)(ii)(H). The regulation at 8 C.F.R. 
5 214.2(l)(ii)(G)(2) reflects that, in order for an entity to be considered a qualifying organization, the 
petitioner must show that it: 
. Is or will be doing business (engaging in international trade is not required) as an employer in 
the United States and at least one other country directly or through a parent, branch, affiliate, 
or subsidiary for the duration of the alien's stay in the Un~ted States as an intracornpany 
transferee . . .. 
The regulation at 8 C.F.R. 5 214.2(I)(ii)(H) defines the term "doing business" as: 
[Tlhe regular, systematic, and continuous provision of goods and/or services by a qualifying 
organ'ization and does not include the mere presence of an agent or office of the qualifying 
organization in the United States and abroad. 
Thc petitioner submitted evidence to establish that the foreign entity was incorporated under the laks of 
England and Wales on July 3,2003. In order to establish that the foreign entity is doing business, the director 
tnstkcted the petitioner to-submit photographs of the foreign company, bank statements, a telephone directory 
listing, business licenses; tax documents, and payroll records. Counsel indicated that photographs were not 
available, but conceded that the company operates out of the beneficiary's home. Counsel indicated that the 
foreign entity does not require any business licenses, does not havc a bank account, does not have a telephone 
listing, and does not pay taxes, as it "does not acquire any income or expenses." Counsel explained that the 
foreign company was created in England "with expectations of doing business in Europe through the US 
Company. The US Company working in Europe employs the beneficiary." Counsel noted that the petitioner 
had sent several players "to ~urd~e" to advance their careers and had brought several European players to the 
United States for development. Finally, counsel noted that the.petitioner pays the beneficiary's salary and all 
obligat~ons of the forei y entity. 
Based on the petitioner's inability' to provide any of the requested evidence, the AAO cannot conclude that the 
foreign entity was engaged in "the regular, systematic, and continuous provision of goods and/or services" 
during,any time. since its establishment. The petitioner has failed .to show that it is doing business as an 
employer in the United States and at least one other country directly or through a parent, branch, aftiliate, or 
subsidiary. For this additional reason, the appeal will be dismissed. 
Another issue not raised by the director is whether the petitioner has established that the beneficiary was 
employed in a full-time capacity with a qualifying organization abroad for one continuous year during the 
three years preceding the filing of the instant petition as required by 8 C.F.R. $ 214.2(1)(3)(iii). Although 
counsel claims that'. the "idea" of the petitioning company was formed in 1998 or 1999, the petitioner was 
WAC 04 140 53510 
Page 12 
incorporated and became a "legal entity" for immigration purposes in December 2002, while the foreign 
entity was'incorporated in July 2003. See 8 C.F.R. Ej 214.2(l)(ii)(G) (defining "qualifying organization'' as a 
finn, corporation, or other legal entity). Any duties the beneficiary performed for the petitioning organization 
while it operated under an informal verbal agreement will not be considered "employment" for purposes of 
establishing eligibility for this visa classification. The petitioner states that the beneficiary has been spending 
40 to 60 percent of his time in the United States. The time the beneficiary spent in the United States as a 
visitor under the visa waiver program also will not be counted towards the fulfillment of his one year of 
continuous employment abroad. See 8 C.F.R. $ 214.2(l)(ii)(A). Thus, it is evident that the beneficiiuy has not 
been employed with a qualifying entity abroad for a continuous year in the three years preceding the filing of 
this petition. For this additional reason, the petition must be denied and the appeal dismissed. 
A third issue not raised by the director is whether the petitioner has established that the beneficiary was 
employed abroad in a primarily managerial or executive capacity as required by the regulation at 8 C.F.R. 6 
214.2(1)(3)(iv). As discussed above, the beneficiary's duties when he is outside the U.S. include traveling in 
Europe and Africa to obseive players, negotiate player contracts, and meet with league owners, coaches and 
players. Although the petitioner indicates that the beneficiary will eventually hire and supervise recruiters 
and lead recruiters responsible for identifying and recruiting players in these regions, the record indicates that 
at the time- of filing, the beneficiary had been and would continue to be solely responsible for all non- 
qualifying recruitment and agency activities claimed to be under the cork01 of the foreign entity. Again, an 
employee who primarily performs the tasks necessary to produce a product or provide services is not 
considered to be employed in a managerial or executive capacity. Matter of Church Scientology Inftv-national, 
19 I&N Dec. at 604. For this additional reason, the appeal will be dismissed. 
An application or petition that'fails to comply with the technical requirements'of the law may be denied by the 
AAO even if the Service Center does not identify all of the grounds for denial in the initial decision. See 
Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 2001), afd. 345 F.3d 683 
(9th Cir. 2003); see also ~br v. INS, 891 F.2d 997, 1002 n. 9 (2d Cir. 1989)(noting that the AAO reviews 
appeals on a de novo basis). 
The petltlon wtll be dented for the above stated reasons, with each cons~dered as an Independent and 
alternative bas~s for dental. In vlsa petltlon proceedings, the burden of proving ellg~b~hty for the benefit 
sought remalns entlrely w~th the petitloner. Sect~on 291 of the Act, 8 U.S.C. tj 1361. Here, that burden has 
not been met. 
ORDER: The appeal is dismissed.