dismissed L-1A Case: Software And Electronics

U.S. Department of Homeland Security 
20 Massachusetts Ave., N.W ., Rm. A3042 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
Services 
FILE: LIN 04 046 52241 Office: NEBRASKA SERVICE CENTER Date: 
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(15)(L) of the Immigration 
and Nationality Act, 8 U.S.C. $ 1101(a)(15)(L) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS : 
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to 
the office that originally decided your case. Any further inquiry must be made to that office. 
dministrative Appeals Office 
LIN 04 046 52241 
Page 2 
DISCUSSION: The nonimrnigrant visa petition was denied by the Director, Nebraska Service Center. The 
matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. 
According to the documentary evidence contained in the record, the petitioner was established in 2001 and 
claims to be in the business of importing and exporting software and electronic goods. The petitioner claims 
to be a subsidiary of Softnet India P. Ltd, located in New Delhi, India. The petitioner seeks to Cxtend its 
authorization to employ the beneficiary temporarily in the United States as the chief executive officer of its 
Indiana office for three years, at an annual salary of $43,900.00. The director determined that the petitioner 
had failed to submit sufficient evidence to establish that the beneficiary would be employed by the U.S. entity 
in a primarily managerial or executive capacity. The beneficiary was initially granted a one-year period of its 
stay to open a new office in the United States and was subsequently granted a one-year extension of status and 
the petitioner now seeks to extend the beneficiary's stay for an additional three year period. 
On appeal, counsel disagrees with the director's decision and asserts that the evidence is sufficient to establish 
that the beneficiary will be employed in a primarily managerial or executive capacity. 
To establish L-1 eligibility under section 101(a)(15)(L) of the Immigration and Nationality Act (the Act), 
8 U.S.C. $ 1 10 1 (a)(15)(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. $ 214.2(1)(3) states that an individual petition filed on Form 1-129 shall be 
accompanied by: 
(i) Evidence that the petitioner and the organization which employed or will employ the 
alien are qualifying organizations as defined in paragraph (l)(l)(ii)(G) of this section. 
(ii) Evidence that the alien will be employed in an executive, managerial, or specialized 
knowledge capacity, including a detailed description of the services to be performed. 
(iii) Evidence that the alien has at least one continuous year of full-time employment 
abroad with a qualifying organization with the three years preceding the filing of the 
petition. 
(iv) Evidence that the alien's prior year of employment abroad was in a position that was 
managerial, executive or involved specialized knowledge and that the alien's prior 
education, training, and employment qualifies himher to perform the intended serves 
in the United States; however, the work in the United States need not be the same 
work which the alien performed abroad. 
The issue in this proceeding is whether the petitioner has submitted sufficient evidence to establish that the 
beneficiary will be employed by the U.S. entity in a primarily managerial or executive capacity. 
Section 101(a)(44)(A) of the Act, 8 U.S.C. $ 1101(a)(44)(A), provides: 
LIN 04 046 52241 
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The term "managerial capacity" means an assignment within an organization in which the 
employee primarily- 
(1) Manages the organization, or a department, subdivision, function, or 
component of the organization; 
(ii) Supervises and controls the work of other supervisory, professional, or 
managerial employees, or manages an essential function within the 
organization, or a department or subdivision of the organization; 
(iii) If another employee or other employees are directly supervised, has the 
authority to hire and fire or recommend those as well as other personnel 
actions (such as promotion and leave authorization), or if no other 
employee is directly supervised, functions at a senior level within the 
organizational hierarchy or with respect to the function managed; and 
(iv) Exercises discretion over the day-to-day operations of the activity or 
function for which the employee has authority. A first-line supervisor is 
not considered to be acting in a managerial capacity merely by virtue of 
the supervisor's supervisory duties unless the employees supervised are 
professional. 
Section 101(a)(44)(B) of the Act, 8 U.S.C. 5 1101(a)(44)(B), provides: 
The term "executive capacity" means an assignment within an organization in which the 
employee primarily- 
(1) Directs the management of the organization or a major component or 
function of the organization; 
(ii) Establishes the goals and policies of the organization, component, or 
function; 
(iii) Exercises wide latitude in discretionary decision-making; and 
(iv) Receives only general supervision or direction from higher level 
executives, the board of directors, or stockholders of the organization. 
In a November 25, 2003 letter submitted with the initial petition, the petitioner described the beneficiary's 
duties as: 
Serves as Chief Executive Officer. ...[ The beneficiary] continues to perform many of the 
duties he held during his service with the parent company in India. More specifically, in 
addition to overall direction of the company, he will be responsible for leading the provision 
of: 
LIN 04 046 52241 
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1. Marketing: Advertising in magazines, the Internet and at exhibitions; location of 
prospective customers; arrangement of demonstrations for customers; finalizing 
product specifications; submitting quotations to customers; negotiating prices with 
customers; pursuing customers until an order is placed; traclang the design'team for 
timely execution of the job as per specifications. 
2. Product Development and Engineering; Preparation of the system design chart at the 
subsystem level; deciding which Sub-modules are to be developed in India by 
Softnet, by the in-house team in the U.S. at [the petitioner], or by subcontractors; 
assigning each subsystem to a team with clear specifications and protocol for 
integration; preparation of PERT chart and monitoring of progress as per the time 
schedule; keeping the entire organization current with the latest in technologcal 
developments. 
3. Interaction with subcontractors: Minimize costs by selecting competitive and 
appropriate Sub-contractors; negotiation with Sub-contractors for the best prices; 
monitoring the progress for timely execution of projects. 
4. Finance Management: Preparation of the budget; negotiation with customers for 
advance payment or stage-wise payment; maintenance of sufficient reserves for 
smooth business operation; collection of payments fiom customers on completion of 
projects; monitoring of expenses; monitoring of the cash flow. 
5. Overall Management: Supervise the day-to-day activities of the company; arrange 
basic infrastructure and facilities for smooth operation of the company; recruit 
personnel as per requirements; supervise the management of the company; arrange 
the requisite insurance coverage to ensure there are no legal liabilities; ensure proper 
documentation as required by law; interact with appropriate government officials. 
6. Personnel Management: In addition to the Executive duties held by [the beneficiary], 
he is also expected to directly supervise the activities of Dr. Raj Gulati, who handles 
Pharmaceutical matters for [the petitioner]. This professional position is crucial to 
the organization, as a major client is a pharmaceutical developer and manufacturer, 
requiring computer validation of various pharmaceutical functions. Due to the nature 
of the types of business engaged in, [the beneficiary] also spends a great deal of time 
supervising and coordinating the activities of [the petitioner's] Sub-contractors. 
In a letter, dated April 1, 2003, the petitioner described Dr. Raj K. Gulati's job duties as: "Your primary 
responsibility will be to ascertain requirement of computer validation in Pharmaceutical industry and develop 
appropriate Implementation plans for customers. The main thrust is to be given on project management of 
pharmaceutical computer validation." 
The petitioner submitted as evidence a copy of the U.S. entity's Quarterly Wage and Withholding Report for 
the quarters ending December 3 1,2002, and March 3 1,2003. The petitioner also submitted copies of the U. S. 
entity's IRS Form 941, Employer's Quarterly Federal Tax Return for the quarter ending March 3 1, 2003, and 
pay stub detail evidencing the beneficiary's employment for the months of January, February, and March of 
2003. The petitioner submitted copies of a purchase order, dated July 9, 2003, for consultation services for a 
LIN 04 046 52241 
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two-year period in the amount of $200,000, and a purchase order, dated October 2, 2003, for the purchase of 
computer supplies in the amount of $1,772,800. The petitioner also submitted a copy of a degree certificate 
in engineering issued to the beneficiary, and company bank statements. 
The director stated in the request for evidence, dated December 11, 2003, that the documentation submitted 
by the petitioner was not sufficient to warrant a favorable consideration of the petition, and subsequently 
requested the petitioner submit evidence demonstrating the beneficiary's managerial or executive capacity as 
dictated by the regulations. The director further requested that the petitioner: 
Submit evidence to establish that the beneficiary qualifies under all four criteria stated above 
for either a Manager or Executive. Submit a statement signed by an authorized official of the 
prospective employer describing the alien's employment for one continuous year abroad 
within the three years immediately preceding the filing of this petition, or if the alien is 
already in the U.S., immediately preceding hisher entry as a nonimmigrant, describing 
the intended employment in the U.S. (Emphasis in original.) The statement should include 
information concerning the dates of employment, job titles, specific job duties, [and] types of 
employees supervised, if any, level of authority, and title and level of authority of the alien's 
immediate supervisor.. . . 
Also submit an organizational chart showing the alien's current and proposed positions in 
relation to others in the company. 
In response to the director's request for evidence on the subject, counsel for the petitioner stated that the 
beneficiary's position with the U.S. entity would be that of executive. Counsel also stated that the beneficiary 
met all requirements as an executive in that he directs the overall operation of the company and has final say 
over matters including the "provision of computer validation of various pharmaceutical functions for a major 
international pharmaceutical company," and "the importation of parts plastic, sheet metal and casting to the 
USA and Canada." Counsel asserted that the subordinate, Dr. Raj Gulati, conducts and directs the functions 
of the organization and reports directly to the beneficiary. Counsel also asserted that the beneficiary was 
responsible for negotiating agreements for company services and provides overall guidance to Dr. Raj Gulati 
in carrying them out. Counsel noted that the U.S. entity received three major consulting contracts for which 
the beneficiary possesses the authority to negotiate, secure, and monitor the progress of. Counsel stated, "[the 
beneficiary] has responsibility for negotiation with.. .subcontractors, cost minimization in agreements and 
production, and responsibility for timely execution of projects and deliveries." Counsel noted that as the 
majority of the petitioner's business consists of the importation of subcontract parts and materials and the 
provision of verification and information solutions, it has no need for large production facilities or a large 
staff. 
Counsel asserted that the beneficiary established the goals and policies of the U.S. entity in that he has 
authority over contract negotiations and major business decisions of the company. Counsel also asserted that 
the beneficiary exercises wide latitude in discretionary decision-malung regarding the negotiation and 
execution of contracts, production choices, use of subcontractors, assignment or use of personnel, and 
business service choices. Counsel further asserted that the beneficiary receives only general supervision or 
direction fiom the president of the U.S. entity and holds direct responsibility for directing interactions with 
customers and suppliers, including negotiations and leading the provision of services. 
LIN 04 046 52241 
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The petitioner submitted as evidence a copy of the U.S. entity organizational chart, which depicted Jawahar 
Gidvani as president, the beneficiary as CEO, and Dr. Raj K. Gulati as Pharmacologist. It was demonstrated 
in the chart that the beneficiary was responsible for the "identification of new customers, preparation of 
project reports, negotiation with customers, supervision of installation of software, interaction with 
IndianIChinese customers, management of finances, and all administrative responsibilities." The petitioner 
also submitted a copy of an invoice, dated December 1, 2003, for the development of custom software in the 
amount of $50,000; a copy of the U.S. entity's IRS Form 1120-A, U.S. Corporation Short-Form Income Tax 
Return for 2002; and bank statements from the National City Bank of Indiana. 
The director subsequently denied the petition. The director determined that the evidence submitted was not 
sufficient to establish that the beneficiary would be employed in a managerial or executive capacity. The 
director stated that the petitioner had failed to demonstrate that the beneficiary would be primarily supervising 
a subordinate staff of professional, managerial, or supervisory personnel who would relieve him from 
performing non-qualifying duties. The director further stated that the petitioner indicated the beneficiary 
would supervise the only other employee of the company, Dr. Raj Gulati, and that his duties would consist of 
the provision of computer validation of various pharmaceutical functions for a major international 
pharmaceutical company. The director also stated that there had been no evidence submitted to establish that 
Dr. Raj Gulati was a professional or that he was currently employed by the U.S. entity. The director noted 
that the record did not establish that the majority of the beneficiary's duties would be directing the 
management of the organization. The director also noted that the record indicated that a preponderance of the 
beneficiary's duties would be directly performing the operations of the organization. Finally, the director 
stated that the petitioner's claim to utilize contracted support services did not demonstrate managerial 
capacity. 
On appeal, counsel disagrees with the director's decision and asserts that the decision was incorrectly based 
on the petitioner's failure to submit requested evidence when no such evidence was requested concerning Dr. 
Raj Gulati's position, professional status, payroll records, or educational certification. The petitioner submits 
as evidence on appeal, copies of Dr. Raj Gulati's resume, University of Delhi Doctor of Philosophy degree, 
University of Delhi Master of Pharmacy degree, University of Delhi Bachelor of Pharmacy degree, University 
of Delhi statement of marks, and University of Delhi College of Pharmacy Certificate of Merit. The 
petitioner also submitted copies of U.S. entity-payroll detail indicating that Dr. Raj Gulati was employed by 
the entity in November and December of 2003, and in January of 2004. 
Counsel contends that the beneficiary will be managing the direction of the pharmaceutical services 
component or function of the organization and in so doing will be responsible for supervising Dr. Raj Gulati, 
who is characterized as a professional employee. Counsel further contends the beneficiary also directs other 
components of the business namely the importation of plastic parts, sheet metal, and casting. Counsel 
argues that due to the nature of the U.S. business there is no need for large production facilities or a large 
staff. Counsel further argues that the beneficiary negotiates sales contracts and "leads provision 
of.. .marketing, product development and engneering, finance management, personnel management and 
overall management." Counsel contends the beneficiary has authority over interactions with subcontractors. 
Counsel further contends the beneficiary negotiates with and maintains relations with customers and suppliers 
at the executive level. Counsel surmises that the evidence submitted also demonstrates that the beneficiary 
functions at a senior level within the organizational hierarchy and with respect to the function managed, 
exercises discretion over the day-to-day operations, and supervises a professional employee. 
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Counsel argues that the beneficiary receives only general supervision or direction from higher level 
executives or the board of directors. Counsel further argues that the beneficiary directs the management of 
the organization, establishes the goals of the organization, component or function, and exercises wide latitude 
in discretionary decision-malung. Counsel contends that the day-to-day duties the beneficiary is performing 
include: 
Preparation of the budget, supervising Dr. Gulati, maintenance of sufficient reserves, 
negotiation, supervision, and coordination of subcontractors, keeping the entire organization 
current in the latest technological developments, arrange basic inffastructwe and facilities for 
smooth operation of the company, recruit personnel as per requirements, supervise the 
management of the company, negotiating prices with customers, interact with appropriate 
government officials, and others. 
Counsel claims the duties described are clearly executive, or in the alternative, managerial in nature. Counsel 
quotes the Occupation Outlook Handbook's description of "top executive7' and claims the definition is similar 
to the beneficiary's duties as described. Counsel reiterates the beneficiary's duty descriptions given by the 
petitioner in response to the director's request for evidence, which will be made a part of this record. Counsel 
notes that the beneficiary has been granted L-IA status by CIS twice previously. 
Counsel's assertions are not persuasive. Upon review of the petition and the evidence, the petitioner has not 
established that the beneficiary has been or will be employed in a managerial or executive capacity. When 
examining the executive or managerial capacity of the beneficiary, the AAO will look first to the petitioner's 
description of the job duties. See 8 C.F.R. 214.2(1)(3)(ii). The petitioner's description of the job duties must 
clearly describe the duties to be performed by the beneficiary and indicate whether such duties are either in an 
executive or managerial capacity. Id. On appeal, counsel for the petitioner contends that the beneficiary's 
duties are executive, or in the alternative, managerial in nature. The petitioner must specifically state whether 
the beneficiary is primarily employed in a managerial or executive capacity. A petitioner must establish that a 
beneficiary meets each of the four criteria set forth in the statutory definition for executive and the statutory 
definition for manager if it is representing that the beneficiary is both an executive and a manager. In the 
instant matter, the petitioner claims that the beneficiary will perform both managerial and executive duties but 
fails to provide a break down of each. 
The definitions of executive and managerial capacity have two parts. First, the petitioner must show that the 
beneficiary performs the high level responsibilities that are specified in the definitions. Second, the petitioner 
must prove that the beneficiary primarily performs these specified responsibilities and does not spend a 
majority of his or her time on day-to-day functions. Champion World, Inc. v. INS, 940 F.2d 1533 (Table), 
1991 WL 144470 (9" Cir. July 30, 1991). In the instant matter, counsel stated that the beneficiary would be 
responsible for managing staff, negotiating contracts, client relations, and establishing goals. However, there 
has been insufficient evidence submitted and/or explanation given to establish that the beneficiary has and 
will primarily perfom high-level responsibilities characteristic of a managerial or executive position. In 
revlew of the record it appears that the beneficiary has been and will be primarily performing the day-to-day 
services of the business. 
Further, rather than providing a specific description of the beneficiary's duties, the petitioner generally 
paraphrased the statutory definition of executive capacity. See section 101(a)(44)(A) of the Act, 
8 U.S.C. 5 1101(a)(44)(A). For instance, the petitioner depicted the beneficiary as directing the entire 
operation of the organization, establishing goals and policies of the organization, and exercising sole 
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discretionary decision-making authority. However, conclusory assertions regarding the beneficiary's 
employment capacity are not sufficient to meet the petitioner's burden of proof. Merely repeating the 
language of the statute or regulations does not satisfy the petitioner's burden of proof. Fedin Bros. Co., Ltd. 
v. Suva, 724 F. Supp. 1 103, 1 108 (E.D.N.Y. 1989), aff'd, 905 F. 2d 41 (2d. Cir. 1990); Avyr Associates Inc. v. 
Meissner, 1997 WL 188942 at *5 (S.D.N.Y.). 
In addition, the petitioner describes the beneficiary as developing the petitioner's product, marketing the 
petitioner's product, and negotiating contracts with potential customers. Since the beneficiary actually 
performs those tasks, he is performing tasks necessary to provide a service or product and this duty will not be 
considered managerial or executive in nature. An employee who primarily performs the tasks necessary to 
produce a product or to provide services is not considered to be empioyed in a managerial or executive 
capacity. Matter of Church Scientology International, 19 I&N Dec. 593,604 (Cornrn. 1988). 
The petitioner fails to document what proportion of the beneficiary's duties would be managerial functions 
and what proportion would be non-managerial. The petitioner lists the beneficiary's duties as managerial, but 
it fails to quantify the time the beneficiary spends on them. This failure of documentation is important 
because several of the beneficiary's daily tasks, such as developing the product, marketing the product, and 
negotiating the contracts do not fall directly under traditional managerial duties as defined in the statute. For 
this reason, the AAO cannot determine whether the beneficiary is primarily performing the duties of a 
function manager. See IKEA US, Inc. v. U.S. Dept. ofJustice, 48 F. Supp. 2d 22,24 (D.D.C. 1999). 
Although the beneficiary is not required to supervise personnel, if it is claimed that his duties involve 
supervising employees, the petitioner must establish that the subordinate employees are supervisory, 
professional or managerial. See fj 101(a)(44)(A)(ii) of the Act. The petitioner has established that the 
beneficiary's sole subordinate, Dr. Raj Gulati, is a professional. However, the petitioner has failed to establish 
that supervising his one professional subordinate is the beneficiary's primary responsibility. Dr. Gulati's role 
is limited to providing technology-consulting services within the scope of the petitioner's pharmaceutical 
sector. However, the beneficiary is also charged with "leading" the petitioner's marketing, product 
development and engineering, and finance functions. As the petitioner does not employ any staff to relieve 
the beneficiary from performing the day-to-day operations duties, it is assumed, and has not been proven 
otherwise, the preponderance of the beneficiary's time is allocated to non-qualifjmg duties, rather than to 
supervision of his one subordinate. The fact that the beneficiary devotes some portion of his time to 
supervising one professional employee is insufficient to overcome the director's finding that the beneficiary is 
primarily engaged in duties that cannot be considered managerial or executive in nature. 
The petitioner has failed to overcome the objections of the director. Even though the petitioner claims that the 
beneficiary directs and manages the petitioner's importation of plastic parts, sheet metal, and casting 
activities, it does not claim to have anyone on its staff to actually perform the importation function. In this 
matter, counsel claims that due to the nature of the U.S. entity's business there is no need for large production 
facilities or a large staff. However, 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. 
Mutter of Obaigbena, 19 I&N Dec. 533, 534 (BIA 1988); Matter of laureano, 19 I&N Dec. 1 (BIA 1983); 
Mutter of Ramirez-Sanchez, 17 I&N Dec. 503, 506 (BIA 1980). Further, there has been no evidence 
submitted to demonstrate the activities of the subcontractors or that they have entered into an employment 
agreement with the U.S. entity. Thus, either the beneficiary himself is performing the importation function or 
he does not actually manage the importation function as claimed by the petitioner. In either case, the AAO is 
left to question the validity of the petitioner's claim and the remainder of the beneficiary's claimed duties. 
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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 is performing the importation function, the AAO 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 of Scientology International, 19 I&N Dec. 
593,604 (Comm. 1988). 
b 
Furthermore, the petitioner's evidence is not sufficient to substantiate its claim that the beneficiary will be 
directing the management of the organization or a major component or function of the organization, 
establishing the goals and policies of the organization, exercising wide latitude in discretionary decision- 
making, and receiving only general supervision or direction from higher level executives. Rather, it appears 
from the evidence that the beneficiary has been and will continue to primarily perform the day-to-day duties 
of the organization and limited managerial or executive duties. There has been no evidence presented to 
demonstrate that the beneficiary will be functioning at a senior level within an organizational hierarchy other 
than in position title. Accordingly, the appeal will be dismissed. 
Counsel noted on appeal that CIS approved two other petitions that had been previously filed on behalf of the 
beneficiary. The director's decision does not indicate whether he reviewed the prior approvals of the other 
nonimrnigrant petitions. If the previous nonirnrnigrant petitions were approved based on the same 
unsupported and contradictory assertions that are contained in the current record, the approval would 
constitute material and gross error on the part of the director. The AAO is not required to approve 
applications or petitions where eligibility has not been demonstrated, merely because of prior approvals that 
may have been erroneous. See, e.g. Matter of Church Scientology International, 19 I&N Dec. 593, 597 
(Comm. 1988). It would be absurd to suggest that CIS or any agency must treat acknowledged errors as 
binding precedent. Sussex Engg. Ltd. v. Montgomey, 825 F.2d 1084, 1090 (6th Cir. 1987), cert. denied, 
485 U.S. 1008 (1988). 
Furthermore, the AAO's authority over the service centers is comparable to the relationship between a court 
of appeals and a district court. Even if a service center director had approved the nonimmigrant petitions on 
behalf of the beneficiary, the AAO would not be bound to follow the contradictory decision of a service 
center. Louisiana Philharmonic Orchestra v. INS, 2000 WL 282785 (E.D. La.), afyd, 248 F.3d 1139 (5th Cir. 
20011, cert. denied, 122 S.Ct. 51 (2001). 
The prior approvals do not preclude CIS from denying an extension of the original visa based on reassessment 
of petitioner's qualifications. Texas AM Univ. v. Upchurch, 99 Fed. Appx. 556, 2004 WL 1240482 (5th Cir. 
2004). Accordingly, the appeal will be dismissed. 
In visa petition proceedings, the burden of proving eligbility for the benefit sought remains entirely with the 
petitioner. Section 291 of the Act, 8 U.S.C. tj 1361. The petitioner has not sustained that burden. 
ORDER: The appeal is dismissed.