dismissed L-1A Case: Software

U.S. Department of Homeland Security 
20 Massachusetts Ave., N.W., Rm. A3000 
Wash~ngton, DC 20529 
., 
U. S. citizenship 
and Immigration 
'defiifying &ta deleted (a 
prevent clearly unw-ted 
 - - 
invasion of personal privacy 
PUBLIC COPY 
FILE: SRC 04 247 50146 Office: TEXAS SERVICE CENTER Date: 0 5 2006 
I 
 PETITION: 
 Petition for a Nonimrnigrant Worker Pursuant to Section 101(a)(15)(L) of the Immigration and 
. Nationality Act, 8 U.S.C. fj 1101(a)(15)(L) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS : 
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to the office 
that originally decided your case. Any further inquiry must be made to that office. 
Ro iemann, Chief 
Administrative Appeals Office 
SRC 04 247 50146 , 
Page 2 
DISCUSSION: ~he,~irector, Texas Service Center, denied the petition for a nonimmigrant visa. The matter 
is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. 
The petitioner filed this nonimrnigrant petition seeking to extend the employment of its president and chief 
executive officer as an L-1A nonimmigrant intracompany transferee pursuant to section 101(a)(15)(L) of the 
Immigration and Nationality Act (the Act), 8 U.S.C. 5 1101(a)(15)(L). The petitioner, a Florida corporation, 
claims to be the subsidiary of 
 located in Surrey, United ~in~dom.' The 
petitioner identifies itself as a software house. The beneficiary was initially granted a one-year period of stay 
to open a new office in the United States, and the petitioner now seeks to extend the beneficiary's stay. 
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 filed an appeal in response to the denial. On appeal, counsel for the petitioner alleges that the 
director's decision was erroneous, and that the beneficiary in fact is a qualified manager because he supervises 
managerial andlor professional employees. In support of this contention, counsel submits a brief and 
additional evidence. 
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)(14)(ii) provides that a visa petition, which involved the opening of a 
new office, may be extended by filing a new Form 1-129, accompanied by the following: 
(a) 
 Evidence that the United States and foreign entities are still qualifying organizations 
as defined in paragraph (l)(l)(ii)(G) of this section; 
(b) 
 Evidence that the United States entity has been doing business as defined in 
paragraph (l)(l)(ii)(H) of this section for the previous year; 
(c) 
 A statement of the duties performed by the beneficiary for the previous year and the 
duties the beneficiary will perform under the extended petition; 
1 
1 
 It should be noted that, according to the Florida Department of State, Division of Corporations, the 
petitioner has been administratively dissolved due to its failure'to satisfy the state's annual report 
requirements. Therefore, regardless of whether the petitioner's annual report issues in Florida can be easily 
remedied or not, it raises the issue of the company's continued existence as a legal entity in the United States. 
SRC 04 247 50146 
Page 3 'l 
I 
(d) 
 A statement describing the staffing of the new operation, including the number of 
employees and types of positions held accompanied by evidence of wages paid to 
employees when the beneficiary, will be employed in a managerial or executive 
, 
capacity; and 
The issue in this matter is whether the beneficiary will be employed by the United States entity in a primarily 
' 
managerial or executive capacity. 
Section 101(a)(44)(A) of the Act, 8 U.S.C. 9 1101(a)(44)(A), defines the term "managerial capacity" as an 
assignment within an organization in which the employee primarily: 
(i) 
 manages the organization, or a department, subdivision, function, or compoient 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 as6 
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 thi employees supervised are professional. 
Section 101(a)(44)(~) of the Act, 8 U.S.C. 9 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 
, , 
SRC 04 247 50146 a 
Page 4 
(iv) 
 receives only general supervision or direction from higher level executives, the board 
of directors, or stockholders of the organization. 
In a letter dated septkmber 15, 2004, counsel for the petitioner stated that the beneficiary had been employed 
in the U.S. as the petitioner's president since September 2003 and oversaw three contractors. With regard to 
his duties, counsel stated: , 
[The beneficiary's] duties include, but are not limited to: 
*:* Business development duties: Including identifying strategic commercial partners in 
key areas of operations as well as establishing relationships with legislatlve and 
administrative bodies at both state and federal levels 
*:* Sales and marketing duties: Including defining a marketing strategy and plan for 
each of the key strategic markets as well as identifying and liaising with marketing 
and advertising organizationsj carrying out direct sales activities to the end user 
customers ,and establishing marketing and reseller agreements wlth suitable 
organizations 
Q Legal and financial duties: 
 Including identifying and securing investment and 
funding as necessary as well as being responsible for the day to day finances for the 
business enterprise 
Q Human resource dutles: Including the recruitment and training of employees hnd 
sub-contractors and termination of employees and subcontractors 
On April 30, 2004, the director requested additional evidence pertaining to the nature of the beneficiary's 
' 
position in the U.S. business. The request specifically asked the petitioner to submit an organizational chart, 
for the petitioner; a more detailed description of the beneficiary's duties, including the percentage of time 
devoted to each duty; a list of all subordinates of the beneficiary, with a description of each person's position 
title and their duties; and copies of its quarterly tax returns for the past year. 
I 
In response, counsel for the petitioner submitted an organizational chart, which demonstrated that the 
 , 
beneficiary oversaw three consultants: - sales consultan software developer; 
and -1 Business Development manager. The chart further indicated that ~r. - 
one additional consultant, who was identified as a financial consultant. Counsel further 
submitted copies of its quarterly tax returns for the quarters ending June 30, 2004 and September 30, 2004, 
which indicated that the beneficiary was the petitioner's sole employee at that time. With regard to the 
percentage of time the beneficiary devoted to his duties, the response provided the following statement: 
Business development duties: identifying strategic commercial partners in our key 
areas of operation as well as establishing relationships wlth legislatlve and 
administrative bodles at both state and federal level - approximately 15% 
Sales and marketing duties: defining a marketing strategy and plan for each of our 
key strategic markets as well as identifying and liaising with marketing and 
advertising organizations; carrying out direct sales activities to the end user 
SRC 04 247 50146 
Page 5 . 
customers and establishing marketing and reseller agreements with suitable 
'organizations - approximately 15% 
-Legal and financing duties: identifying and securing investment and funding as 
* 
necessary as well as being responsible for the day to day finances of [the petitioner] 
- approximately 10% 
Human Resources: responsible for the recruitment and training as well as 
termination of employees as required on a day-to-day basis - approximately 5% 
 . 
Management duties: management, supervision and direction of employees with the 
organization; including, but not limited to assignment of work, monitoring of' 
progress, mentoring and career development - approximately 55% 
The petitioner also provided a brief description of the position duties of the four contractors identified on the 
organizational chart. 
, , On January 13, 2005, the director denied the petition. The director found that the evidence in the record was 
insufficient to establish that the beneficiary would primarily be employed in a managerial or executive 
 . 
capacity.. The director concluded that the documentary evidence submitted did not establish that the 
beneficiary would function at a senior level within the organization or that the beneficiary had sufficient 
subordinate staff to relieve him from performing non-qualifying duties. 
 , I 
On appeal, counsel for the petitioner reasserts that the beneficiary, by virtue of his position as president, is by 
definition functioning in a managerial andlor executive capacity: Counsel further contends that the other staff 
positions are likewise professional, thereby concluding that the beneficiary is overseeing a staff of 
professional or managerial employees and has thus satisfied the regulatory requirements. 
 Additional 
documentation regarding the positions of the petitioner's five alleged staff members are submitted in support 
of this contention. The AAO, however, disagrees. 
When examining the executive or managerial capacity of the beheficiary, the AAO will look first to the 
petitioner's description of the job duties. See 8 C.F.R. 5 214.2(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 sudh duties are 
either in an executive or managerial capacity. Id. 
1 
0 
The initial description of d~ties~provided by the petitioner in these proceedings did little to describe the 
beneficiary's actual duties, nor did it describe the nature of the beneficiary's day-to-day tasks. Instead, it 
merely provided a vague overview of the nature of his duties; namely, that he would function as president and 
oversee virtually all aspects of the business, from the sales and marketing to human resources. Consequently, 
the director requested more specific information, including a more specific description of the beneficiary's 
duties. The petitioner responded to this request, yet did not expand on the beneficiary's day-to-day duties. 
Instead, the petitioner submitted virtually the identical descriptions as previously submitted with the petition 
and added a new category of managerial duties not previously identified. In addition to restating these duties, 
the petitioner provided a breakdown of the percentage of time the beneficiary devoted to each of the stated 
duties, with the newly-identified managerial duties encompassing 55% of the beneficiary's typ~cal workday. 
SRC 04 247 50146 
Page 6 
Based on the evidence of record, the AAO is not convinced that the duties and the percentage of time the 
beneficiary allegedly devotes to each is an accurate portrayal of a typical workday. In sum, the initial 
description appeared to have the beneficiary doing more of the actual work, while the second iteration of the 
job has the beneficiary managing more of the actual work done in the petitioner's operation. Specifically, 
managerial duties were not identified in the initial description of duties, yet in response to the request for 
evidence, the petitioner claims that the beneficiary devotes the majority of his time, namely 55% of his 
workday, to such duties. 
The purpose of the request for evidence is to elicit further information that clarifies whether eligibility for the 
benefit sought has been established. 8 C.F.R. 5 103.2(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. The petitioner 'must 
establish that the position offered to the beneficiary when the petition was filed merits classification as a 
managerial or executive position. Matter ofMichelin Tire Corp., 17 I&N Dec. 248,249 (Reg. Comm. 1978). If 
significant changes are made to the initial request for approval, the petitioner must file a new petition rather 
than seek approval of a petition that is not supported by the facts in the record. The infdrmation provided by 
the petitioner in its response to the director's request for hrther evidence did nbt clarify or provide more 
specificity to the original duties of the position, but rather added new generic duties to the job description. 
Therefore, the analysis of this criterion will be based on the job description submitted with the initial petition. 
Upon review, it appears that the beneficiary is directly responsible for obtaining clients, marketing the 
petitioner's products, and managing all financial and human resource transactions. A; stated above, the 
addition of the managerial duties in the response to the request for evidence ,will not be considered in this 
analysis. As a result, it appears that the four areas initially identified indicate that the majority of the 
beneficiary's time is devoted to performing the tasks necessary to generate the petitioner's products and 
services, and do not fall directly under traditional managerial or executive duties as defined in the statute. An 
employee who primarily perfoms the tasks necessary to produce a product or to provide services is not 
considered to be employed in a managerial or executive capacity. Matter of Church Scientology International, 
19 I&N Dec. 593,604 (Comrn. 1988). 
In addition, the beneficiary also claims that he manages a staff of four persons (although the initial statement 
with the petition claimed that number to be three). Altho,ugh the beneficiary is not required to supervise 
personnel, if it is claimed that his duties involve supervising employees, the petitioner must establish that the 
subordinate employees are supervisory, professional, or managerial. See 5 101(a)(44)(A)(ii) of the Act. 
At the time of filing, according to the most recent quarterly tax return filed on September 30, 2004, the 
petitioner employed only the petitioner. Although the petitioner submitted copies of its offers of employment 
to the identified consultants, dated June 2 1, 2004; August 2 1, 2004 and September 29, 2004, there' was no 
docuinentation that these four consultants were rendering services to the petitioner at the time of filing. Aside 
from one cancelled check showing a payment to Gregory Walker on September 16, 2004, there is no 
additional evidence that these other persons were compensated for services rendered to the petitioner. As a 
result, the AAO will consider only Mr. Walker to be retained by the petitioner for purposes of evaluating the 
beneficiary's supervisory duties. 
SRC 04 247 50 146 
Page 7 
The petitioner indicated that Mr. is a sales manager, and that he has been retained "to assist in 
business development and sales in the Mr. has achieved many . r 
successful years as a salesman for a variety or organizations in severa US markets." While it is claimed, 
based on the organizational chart, that the beneficiary oversees Mr. this description of his position 
and duties does little to establish that he occupies a position of a bachelor's degree or higher, such that he 
could be classified as a professional.2 Additionally, the petitioner has not shown that he supervises 
subordinate staff members or manages a clearly defined department or function of the petitioner, such that he 
could be classified as a manager or supervisor. Again, although there are three additional employees listed on 
the organizational chart, there is no documentary evidence to establish that these persons were actually on the 
petitioner's payroll at the time of the petition's filing. Going on record without supporting documentary 
evidence is not sufficient for purposes of meeting the burden of proof in these proceedings. Matter of Sofici, 
22 I&N ~ec. 158, 165 (Comm. 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. 
Comm. 1972)). Thus, the petitioner has not shown that the beneficiary's alleged subordinate employees are 
supervisory, professional, or managerial, as required by skction 101(a)(44)(A)(ii) of the Act. 
The AAO, upon review of the record of proceeding, concurs with the director's finding that the petitioner has 
not established that the beneficiary will be employed in either a primarily managerial or executive capacity. 
The petitioner appears to have only recently retained the services of one contractor to assist in sales services, 
in addition to,the beneficiary. No explanation has been provided with regard to who performs the clerical and 
administrative duties of the company, thus suggesting that the beneficiary is responsible for these and many 
other unqualified duties. Pursuant to section 10 1 (a)(44)(C) of the Act, 8 U.S.C. 5 1 10 1 (a)(4'4)(~), if staffing 
levels are used as a factor in determining whether an individual is acting in a managerial or executive 
capacity, Citizenship and Immigration Services (CIS) must take into account the reasonable needs of the 
organization, in light of the overall purpose and stage of development of the organization. In the present 
matter, however, the regulations provide strict evidentiary requirements for the extension of a "new office" 
petition and require CIS to examine the organizational structure and staffing levels of the petitioner. See 8 
C.F.R. 5 214.2(1)(14)(ii)(D). The regulation at 8 C.F.R. 5 214.2(1)(3)(v)(C) allows the "new office" operation 
one year within the date of approval of the petition to.support an executive or managerial position. There is 
no provision in CIS regulations that allows for an extension of this one-year period.- If the business does not 
have sufficient staffing after one year to relieve the beneficlary from primarily performing operational and 
administrative tasks, the petitioner is ineligible by regulation for an extension. In the instant matter, the 
petitioner has not reached the point that it can employ the beneficiary in a predominantly managerial or 
executive position. For this reason, the petition may not be approved. 
2 
 While the AAO notes that the petitioner submits additional descriptions of Mr. position on appeal, 
this evidence will not be considered, as the petitioner was put on notice of this required evidence and given a 
reasonable opportunity to provide it for the record before the visa petition was adjudicated. The petitioner 
failed to submit a detailed response regarding Mr. position in the response to the request for 
evidence and now submits it on appeal. However, the AAO will not consider this evidence for any purpose. 
See Matter of Soriano, 19 I&N Dec. 764 (BIA 1988); Matter of Obaigbena, 19 I&N Dec. 533 (BIA 1988). 
The'appeal will be adjudicated based on the record of proceeding before the director. 
SRC 04 247 50 146 
Page 8 
3 ' 
Beyond the decision of the director, the minimal documentat~on of the petitioner's ownership raises the issue 
of whether there is a qualifjring relationship between and U.S. entity and a foreign entity pursuant to 8 C.F.R. 
214.2(1)(l)(ii)(G). The regulation and case law confirm that ownership and control are the factors that must 
be examined in determining whether a qualifying relationship exists between united States and foreign 
entities for purposes of this visa classification. Matter of Church Scientology International, 19 I&N Dec. 
593; see also Matter of Siemens Medical Systems, Inc., 19 I&N Dec. 362 (BIA 1986); Matter of Hughes, 18 
I&N Dec. 289 (Comm. 1982). In the context of this visa petition, ownership refers to the direct or indirect 
legal right of possession of the assets of an entity with full power and authority to control; control means the 
direct or indirect legal right and authority to direct the establishment, management, and operations of an 
entity. Matter of Church Scientology International, 19 I&N Dec. at 595. 
' 
In this matter, the petitioner claims that it is the subsidiary of the foreign entity by way of that entity's 75% 
ownership of its outstanding stock, with the beneficiary owning the remaining 25%. Although the petitioner 
has submitted stock certificates, no additional information regarding the ownership claim has been submitted. 
As general evidence of a petitioner's claimed qualifying relationship, stock certificates alone are not sufficient 
evidence to determine whether a stockholder maintains ownership and control of a corporate entity. The 
corporate stock certificate ledger, stock certificate registry, corporate bylaws, and the minutes of relevant 
annual shareholder meetings must also be examined to determine the total number of shares issued, the exact 
number issued to the shareholder, and the subsequent percentage ownership and its effect on corporate 
control. Additionally, a petitioning company must disclose all agreements relating to the voting of shares, the 
distribution of profit, the management and direction of the subsidiary, and any other factor affecting actual 
control of the entity. See Matter of Siemens Medical Systems, Inc., 19 I&N Dec. 362 (BIA 1986). 
 Without 
full disclosure of all relevant documents, CIS is unable to determine the elements of ownership and control. 
For this additional reason, the petition may not be approved. 
Another issue in this proceeding, also not raised by the director, is whether the'employment offered to the 
beneficiary is temporary. Generally, the petitioner for an L-1 nonimmigrant classification need submit only a 
simple statement of facts and a listing of dates to demonstrate the intent to employ the beneficiary in the 
United States temporarily.   ow ever, where the beneficiary is claimed to be the owner or a major stockholder 
of the petitioning company, a greater degree of proof is required. Matter of Isovic, 18 I&N Dec. 361 (Cornrn. 
1982); see also 8 C.F.R. § 214.2(1)(3)(vii). The record indicates that the beneficiary owns 25% of the 
petitioner. In this matter, the petitioner has not furnished evidence that the beneficiary's services are for a 
temporary penod and that the beneficiary will be transferred abroad upon completion of the assignment. For 
this additional reason, the petition may not be approved. , 
An application or petition that fails to comply with the technical requirements of the law may be denied by 
the 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 Dor v. INS, 891 F.2d 997, 1002 n. 9 (2d Cir. 1989)(noting that the AAO reviews 
appeals on a de novo basis). 
SRC 04 247 50146 
Page 9 
In visa petition proceedings, the burden of proving eligibility for the benefit sought remains entirely with the 
petitioner. Section 291 of the Act, 8 U.S.C. 5 1361. Here, that burden has not been met. Accordingly, the 
director's decision will be affirmed and the petition will be denied. 
ORDER: 
 The appeal is dismissed.