dismissed L-1A Case: Software Consulting

U.S. Department of Homeland Security 
20 Massachusetts Ave., N.W., Rm. A3042 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
File: WAC-04-004-5067 1 CALIFORNIA SERVICE CENTER Date: FEB 18 
Petition: Petition for a Nonirnmigrant Worker Pursuant to Section 101(a)(15)(L) of the Immigration 
and Nationality Act, 8 U.S.C. 5 1101(a)(15)(L) 
IN BEHALF OF PETITIONER: 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to 
the office that originally decided your case. Any further inquiry must be made to that office. 
5- 
, Robert P. Wiemann, Director 
Administrative Appeals Office 
WAC-04-004-5067 1 
Page 2 
DISCUSSION: The Director, California Service Center, denied the petition for a nonimrnigrant 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 extend the employment of its President 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 is a limited liability company organized in the State 
oftware and internet consulting services. The petitioner claims that it is the 
cated in France. The beneficiary was initially granted a three-year period in L- 
1A status and the petitionernow seeks to extend the beneficiary's stay. 
The director denied the petition concluding that the petitioner did not establish that: (1) the petitioner has a 
qualifying relationship with the beneficiary's foreign employer; and (2) 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 AAO for review. On appeal, counsel for the petitioner asserts that the petitioner 
and the foreign entity are affiliates due to common ownership and control. Counsel furthers asserts that the 
beneficiary will be employed in a primarily managerial and executive capacity, due to the fact that he will 
manage professionals and his duties meet the statutory definitions for managerial and executive capacity. In 
support of these assertions, counsel submits a brief and copies of the decisions in three cited United States 
district court cases. 
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. $ 214.2(1)(3) states that an individual petition filed on Form 1-129 shall be 
accompanied by: 
(i) Evidence that the petitioner and the organization which employed or will employ the 
alien are qualifying organizations as defined in paragraph (l)(l)(ii)(G) of this section. 
(ii) Evidence that the alien will be employed in an executive, managerial, or specialized 
knowledge capacity, including a detailed description of the services to be performed. 
(iii) Evidence that the alien has at least one continuous year of full time employment 
abroad with a qualifying organization within the three years preceding the filing of 
the petition. 
WAC-04-004-5067 1 
Page 3 
(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 himlher to perform the intended 
services in the United States; however, the work in the United States need not be the 
same work which the alien performed abroad. 
The first issue in the present matter is whether the petitioner and the beneficiary's foreign employer possess a 
qualifying relationship. 
The regulation at 8 C.F.R. 3 214.2(1)(l)(ii) provides the following: 
(G) Qualifying organization means a United States or foreign firm, corporation, or other 
legal entity which: 
(I) Meets exactly one of the qualifying relationships specified in the definitions of a 
parent, branch, affiliate or subsidiary specified in paragraph (l)(l)(ii) of this 
section; 
(2) Is or will be doing business (engaging in international trade is not required) as 
an employer in the United States and in at least one other country directly or 
through a parent, branch, affiliate, or subsidiary for the duration of the alien's 
stay in the United States as an intracompany transferee; and 
(3) Otherwise meets the requirements of section 101(a)(15)(L) of the Act. 
(H) Doing business means the regular, systematic, and continuous provision of goods andfor 
services by a qualifying organization and does not include the mere presence of an agent 
or office of the qualifying organization in the United States and abroad. 
(I) Parent means a firm, corporation, or other legal entity which has subsidiaries. 
(J) Branch means an operating division or ofice of the same organization housed in a 
different location. 
(K) Subsidialy means a firm, corporation, or other legal entity of which a parent owns, 
directly or indirectly, more than half of the entity and controls the entity; or owns, 
directly or indirectly, half of the entity and controls the entity; or owns, directly cx 
indirectly, 50 percent of a 50-50 joint venture and has equal control and veto power over 
the entity; or owns, directly or indirectly, less than half of the entity, but in fact controls 
the entity. 
(L) Aflliate means 
WAC-04-004-5067 I 
Page 4 
(1) One of two subsidiaries both of which are owned and controlled by the same 
parent or individual, or 
(2) One of two legal entities owned and controlled by the same group of 
individuals, each individual owning and controlling approximately the same 
share or proportion of each entity, or 
(3) In the case of a partnership that is organized in the United States to provide 
accounting services along with managerial and/or consulting services and that 
markets its accounting services under an internationally recognized name under 
an agreement with a worldwide coordinating organization that is owned and 
controlled by the member accounting fm, a partnership (or similar 
organization) that is organized outside the United States to provide accounting 
services shall be considered to be an affiliate of the United States partnership if 
it markets its accounting services under the same internationally recognized 
name under the agreement with the worldwide coordinating organization of 
which the United States partnership is also a member. 
In the initial petition filed on October 2, 2003, on Form 1-129 the petitioner stated that it is an affiliate of the 
beneficiary's foreign employer. The petitioner indicated that the foreign entity owns 51 percent of the 
petitioner's membership units, and the beneficiary owns the remaining 49 percent. As evidence, the petitioner 
submitted: (1) an internal document titled "Capital Contribution of Members and Addresses of Mernbers and 
Manager as of October 17, 2001," that indicates the members' percentage of ownership of the petitioner as of 
that date; (2) an operating agreement for the petitioner; (3) a document titled "Minutes of Regular Meeting 
and Stock Ownership of Members of [the petitioner]," dated October 17, 2001 and reflecting that the foreign 
entity acquired a 51 percent interest and the beneficiary acquired a 49 percent interest in the company as of 
that date; (4) a document titled "Notice of Transaction Pursuant to Corporations Code Section 25102(f)," 
dated July 21, 2003, reflecting that the beneficiary acquired an interest in the petitioner valued at $490; (5) a 
document titled "Action by Unanimous Written Consent of the Members of [the petitioner]," dated October 
17, 2001, reflecting that the beneficiary was authorized to issue a certificate to himself for 490 Membership 
Interests in the petitioner; (6) a document titled "Membership Interest Assignment Separate from Certificate," 
dated October 17, 2001, reflecting that the beneficiary acquired 490 Membership Interest Un~ts of the 
petitioner on that date; (7) a certificate, dated October 17, 2001, reflecting that the beneficiary acquired 490 
Membership Interest Units of the petitioner on that date; (8) articles of incorporation for the foreign entity 
reflecting that the beneficiary owned 400 of the 500 issued shares of the organization as of April 20, 1999; (9) 
copies of the petitioner's IRS Forms 1065, U.S. Return of Partnership Income, for 2001 and 2002: and (10) 
copies of the petitioner's California State Forms 568, Limited Liability Company Return of Income, for 2000, 
2001 and 2002. 
On October 15, 2003, the director denied the petition. In part, the director found that the petitioner did not 
establish that it has a qualifying relationship with the beneficiary's foreign employer. The director found that 
the record does not support that the petitioner and the foreign entity are affiliates as claimed. The director 
considered whether the petitioner and foreign entity have a parent-subsidiary relationship, and noted that the 
WAC-04-004-5067 1 
Page 5 
record indicates that the foreign entity owns 5 1 percent of the shares of the petitioner. However, the director 
then examined the petitioner's Operating Agreement and ultimately found that, while the foreign entity owns a 
majority interest in the petitioner, it does not in fact control the petitioner. The director determined that the 
company's manager has exclusive control over the petitioner, and that the owners, including the foreign entity, 
have no managerial authority. The director indicated that, as the foreign entity does not own and control the 
petitioner, the two entities do not possess a qualifying relationship. 
On appeal, counsel asserts that the petitioner and the foreign entity are affiliates due to common ownership 
and control. Counsel refers to the organizational charts submitted for the petitioner and the foreign entity, and 
claims that the charts indicate that the two entities are controlled by the same two individuals. Counsel 
references the foreign entity's articles of incorporation as evidence of the ownership of the company. Counsel 
references the internal document titled "Capital Contribution of Members and Addresses of Members and 
Manager as of October 17, 2001" as evidence of the ownership of the petitioner. Counsel states that "[tlhe 
foreign entity is owned by nd [the beneficiary], and the [petitioner] is owned 51% by the 
foreign entity, (consisting o individuals) and 49% by the [beneficiary]. Therefore, each 
entity is jointly owned and controlled by both the foreign [entity] and [the petitioner]." Counsel cites the 
decision of the United States District Court for the Northern District of California in Sun Moon Star Advanced 
Power, Inc. v. Chappell, 773 F.Supp. 1373 (N.D. Cal. 1990), to stand for the proposition that identical 
ownership is not required in order for two entities to be deemed affiliates through common ownership and 
control. Counsel further asserts that the director's decision "erroneously emphasizes that the members have 
no voting rights." Counsel provides that: 
Section 4.7.3 of the Petitioner's Operating Agreement specifically outlines the voting rights of 
the members on all matters pertaining to all manner of the management of the company 
including the following: 
- Amendment of the Articles of Agreement, 
Capital Contributions, admission of new Members, 
- Election and Removal of a Manager, 
Change in the purpose of the Company; reorganization of the Company, 
- Limitation on the Manager's authority, 
Management Fees payable to Manager, 
Dissolving the company. 
Upon review, counsel's assertions are persuasive and the director's decision will be withdrawn on this issue. 
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 (BIA 1988); see also 
Matter of Siemens Medical Systems, Znc., 19 I&N Dec. 362 (BIA 1986); Matter of Hughes, 18 I&N Dec. 289 
(Cornm. 1982). In 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. 
WAC-04-004-5067 1 
Page 6 
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 sbares, 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., supra. Without full disclosure of all 
relevant documents, CIS is unable to determine the elements of ownership and control. 
In the instant matter, the petitioner's Operating Agreement serves as evidence to establish who has authority 
to control the enterprise. As stated above, the director found that the agreement indicates that the manager, 
not the owners, has ultimate control over the petitioner. The agreement clearly gives broad discretion to the 
manager regarding the operation and daily affairs of the petitioner. However, as counsel correctly highlights, 
the agreement defines numerous matters over which the owners (titled "members") have voting rights. These 
matters, addressed in section 4.7 - Voting Rights, include the "election and removal of a Manager," 
"limitations on the Manager's authority," "transactions with the Manager and Affiliates of the Manager," 
"Management Fees payable to [the] Manager," and "dissolving the Company." Regarding a matter on which 
owners have voting rights, "a vote, consent or approval of Members holding a Majority Interest . . . shall be 
sufficient to authorize or approve such act." Thus, an owner with a 51 percent interest in the petitioner would 
have ultimate authority over a manager, including the unqualified power to remove the manager or dissolve 
the company. 
Based on the above, the director's finding that the Operating Agreement gives control of the petitioner to its 
manager rather than a majority owner will be withdrawn. 
The petitioner has established that the beneficiary owns a 49 percent interest in the company. Further, the 
petitioner has submitted sufficient documentation to show that the foreign entity owns the remaining 51 
percent. Thus, the foreign entity has ownership and control of the petitioner, creating a parent-subsidiary 
relationship.' 
Accordingly, the petitioner has established that it has a qualifying relationship with the foreign entity as 
required by 8 C.F.R. 3 214.2(1)(3)(i). The director's decision on this issue will be withdrawn. 
I It is noted that the petitioner's California Forms 568, Limited Liability Company Return of Income, for 
2000, 2001, and 2002, at Item P, indicate that the petitioner does not have any foreign nonresident members, 
in contradiction to the assertion that the foreign entity owns a majority interest in the petitioner. However, 
each form is accompanied by Schedule K-1, Member's Share of Income, Deductions, Credits, etc., that 
reflects that the foreign entity owns a 51 percent interest. The AAO finds that, in aggregate, the petitioner's 
documentation is sufficient to show that the foreign entity has a majority interest. 
WAC-04-004-5067 I 
Page 7 
The second 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 lOl(a)(44)(A) of the Act, 8 U.S.C. '5 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 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), defines the term "executive capacity" as an 
assignment within an organization in which the employee primarily: 
(i) directs the management of the organization or a major component or function of the 
organization; 
(ii) establishes the goals and policies of the organization, component, or function; 
(iii) exercises wide latitude in discretionary decision making; and 
(iv) receives only general supervision or direction from higher level executives, the board 
of directors, or stockholders of the organization. 
In the initial petition, on Form 1-129 the petitioner stated that the beneficiary will "[olversee daily business 
operations, plan and direct business strategy, hire and fire contractors, negotiate contracts with internet 
providers, obtain new clients, and oversee budgetary issues. [The beneficiary will] [dlirect sales and 
marketing [and] [olversee customer service and satisfaction." In an attached letter, the petitioner provided 
that "[the beneficiary] will retain executive responsibilities, and direct the administration and management of 
this fully functional United States affiliate." The petitioner further provided the following: 
WAC-04-004-5067 1 
Page 8 
The Beneficiary named above manages two full time employees and one sales consultant . . . 
in the US operation . . . and will hire and manage any other employees for the duration. [The 
beneficiary] makes and will continue to make all decisions regarding -the policies of the 
business in every area, and continue to oversee daily operation -of the business, including 
technical, administrative, sales, and marketing. 
He will specifically perform the following duties: 
Hire and terminate employees as necessary; 
Plan and direct business strategy; 
- Negotiate contracts with internet providers 
Oversee budgetary issues; 
Plan and execute an advertising program; 
Assign duties and review work for accuracy and conformance to Petitioner's policies 
and procedures; 
Maintain current information on clientele assuring customer satisfaction with 
products and services. 
In denying the petition, in part the director determined that the petitioner did not establish that the beneficiary 
will be employed in the United States in a primarily managerial or executive capacity. Specifically, the 
director noted that the petitioner's organizational chart reflects that "the beneficiary supervises one sales 
marketing, one sales person, and one office manager." The director found that the office manager's duties 
must include secretarial tasks, warehouse functions, and shipping clerk responsibilities, thus the director 
implied that the office manager is not truly a managerial employee. The director stated that "the beneficiary 
is at best, a first-line supervisor, performing the day-to-day duties necessary to maintain the petitioning 
entity." The director commented that "[tlhe petitioner provides no evidence . . . to indicate that additional 
staff would be hired for the petitioner andlor the beneficiary to delegate the day-to-day duties necessary to 
maintain the business." 
On appeal, counsel for the petitioner asserts that the beneficiary will be employed in both a primarily 
managerial and executive capacity, due to the fact that he will manage professionals and his duties meet the 
statutory definitions for managerial and executive capacity. In the brief, counsel states that the beneficiary "is 
the manager of the petitioning entity." Counsel asserts that "[tlhe employees that the beneficiary manages are 
professionals as required by law; the managed employees consist of professionals managing the sales and 
marketing functions, a sales consultant, and the office manager." Counsel cites several matters to stand for 
the proposition that a petitioner's small staff size does not render it ineligible to sponsor an L-1 intracompany 
5 
transferee, including National Hand Tool Corp. v. Pasquarell, 889 F.2d 1472, n.5 (5' Cir. 1989), Mars 
Jewelers, Inc. v. INS, 702 F.Supp. 1570, 1573 (N.D. Ga. 1988), IKEA US, Inc. v. U.S. DOJ, INS, 48 F.Supp. 
2d 22 (D.D.C. 1999), and an unpublished AAO decision involving an employee of the Irish Dairy Board. 
Counsel asserts that, "even if the [petitioner] employed the beneficiary as a sole employee who relied on 
contractors, he would still qualify for the L1 visa as he is responsible for the direct management of the 
[petitioner]." Counsel states that "if there was an inquiry as to what specific duties each staff-member was to 
WAC-04-004-5067 1 
Page 9 
perform, above and beyond what was included in the petition, we would have been happy to accommodate a 
request for evidence . . . ." The petitioner provided copies of the decisions in three cited United States district 
court cases, yet no new evidence to support the above assertions. 
Upon review, counsel's assertions are not persuasive. 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. 
2142()(3)(ii). The petitioner's description of the job duties must clearly describe the duties to be 
performed by the beneficiary and indicate whether such duties are either in an executive or managerial 
capacity. Id. The petitioner must specifically state whether the beneficiary is primarily employed in a 
managerial or executive capacity. A petitioner cannot claim that some of the duties of the position entail 
executive responsibilities, while other duties are managerial. A beneficiary may not claim to be employed as 
a hybrid "executive/manager" and rely on partial sections of the two statutory definitions. 
In the instant case, the petitioner asserts that the beneficiary ,is primarily engaged in both managerial duties 
and executive duties. Therefore, the petitioner must establish that the beneficiary meets each of' the four 
criteria set forth in the statutory definition for executive duties under section 101(a)(44)(B) of the Act, and the 
statutory definition for managerial duties under section 101(a)(44)(A) of the Act. 
The petitioner provided a description of the beneficiary's duties, including an indication that the beneficiary 
supervises "two full time employees and one sales consultant." The petitioner's organizational chart reflects 
that the beneficiary's subordinates include an Office Manager, an employee titled "Sales," and an employee 
titled "Sales Marketing." The petitioner does not specify which sales employee is utilized on a contract basis, 
and which is a full-time employee. 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 5 101(a)(44)(A)(ii) of the Act. 
In evaluating whether the beneficiary manages professional employees, the AAO must evaluate whether the 
subordinate positions require a baccalaureate degree as a minimum for entry into the field of endeavor. 
Section lOl(a)(32) of the Act, 8 U.S.C. 3 1101(a)(32), states that "[tlhe term profession shall include but not 
be limited to architects, engineers, lawyers, physicians, surgeons, and teachers in elementary or secondary 
schools, colleges, academies, or seminaries." The term "profession" contemplates knowledge or learning, not 
merely skill, of an advanced type in a given field gained by a prolonged course of specialized instruction and 
study of at least baccalaureate level, which is a realistic prerequisite to entry into the particular field of 
endeavor. Matter of Sea, 19 I&N Dec. 817 (Cornm. 1988); Matter of Ling, 13 I&N Dec. 35 (R.C. 1968); 
Matter of Shin, 11 I&N Dec. 686 (D.D. 1966). 
Therefore, the AAO must focus on the level of education required by the position, rather than the degree held 
by a subordinate employee. The possession of a bachelor's degree by a subordinate employee does not 
automatically lead to the conclusion that an employee is employed in a professional capacity as that term is 
defined above. In the instant case, the petitioner has not established that a bachelor's degree i:; actually 
necessary to perform the duties of the beneficiary's subordinates. Nor has the petitioner indicated that any of 
the beneficiary's subordinates actually hold advanced degrees. Thus, contrary to counsel's assertions, the 
WAC-04-004-5067 1 
Page 10 
petitioner has not established that the beneficiary's subordinates are professionals as contemplated by section 
lOl(a)(44)(A)(ii) of the Act. 
The petitioner's organizational chart shows that the beneficiary's subordinates do not supervise other staff 
members, such that they could be deemed supervisory personnel. The petitioner has not established that the 
two subordinates working in sales are managerial employees with authority over a clearly defined department 
or function of the petitioner. As the beneficiary's duties include "[planning] and direct[ing] business strategy" 
and "[planning] and execut[ing] an advertising program," it appears that the beneficiary is actually in charge 
of the sales function of the petitioner. The petitioner has not provided a job description for its Office 
Manager, yet the record clearly shows that she has no assistants or subordinates of her own. Without further 
explanation, it is assumed that the Office Manager performs primarily clerical duties such as tracking payroll, 
managing a checkbook and paying bills, answering the telephone, and filing documents. Thus, though the 
Office Manager has a managerial title, the petitioner has not established that she is in fact a managerial 
employee as contemplated by section IOl(a)(44)(A)(ii) of the Act. 
Accordingly, the petitioner has not shown that the beaeficiary's subordinate employees are supervisory, 
professional, or managerial, as required by section 101(a)(44)(A)(ii) of the Act. 
A managerial or executive employee must have authority over day-to-day operations beyond the level 
normally vested in a first-line supervisor, unless the supervised employees are supervisory, professional, or 
managerial. See Matter of Church Scientology International, 19 I&N Dec. 593, 604 (Comm. 1988). As 
presently constituted, the evidence of record reflects that the beneficiary acts as a first-line supervisor. 
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 153.3 (Table), 
1991 WL 144470 (9th Cir. July 30, 1991). In addition to supervising three subordinates, the petitioner lists 
other duties that the beneficiary will perform, such as "[planning] and direct[ing] business strategy" and 
"[planning] and execut[ing] an advertising program." Yet, the petitioner does not indicate the percentage of 
time the beneficiary devotes to each of his tasks. Thus, based on the current record, the AAO is unable to 
determine whether the claimed managerial duties will occupy the majority of the beneficiary's time, or 
whether the beneficiary will primarily perform non-managerial administrative or operational duties, such as 
acting as a first-line supervisor. 
Counsel correctly observes that a company's size alone may not be the determining factor in denying a visa to 
a multinational manager or executive. See section lOl(a)(44)(C), 8 U.S.C. 5 1101(a)(44)(C). However, it is 
appropriate for CIS to consider the size of the petitioning company in conjunction with other relevant factors, 
such as a company's small personnel size, the absence of employees who would perform the non-managerial 
or non-executive operations of the company, or a "shell company" that does not conduct business in a regular 
and continuous manner. See, e.g. Systronics Corp. v. INS, 153 F. Supp. 2d 7, 15 (D.D.C. 2001). As required 
by section 101(a)(44)(C) of the Act, if staffing levels are used as a factor in determining whether an 
WAC-04-004-5067 1 
Page 11 
individual is acting in a managerial or executive capacity, CIS must take into account the reasonable needs of 
the organization, in light of the overall purpose and stage of development of the organization. 
The petitioner operates as provider of software and internet consulting services. Based on the petitioner's 
business plan, it is evident that the reasonable needs of the petitioner require its employees to perform 
numerous non-managerial and non-executive tasks such as providing extensive technical advice to customers, 
researching hardware and software solutions, "developing . . . proprietary products," and developing and 
maintaining the petitioner's website. The petitioner has not indicated who will perform these tasks. Without 
explanation, it is assumed that the petitioner's Office Manager and sales employees will not engage in these 
activities.' Thus, as the beneficiary is the only remaining employee, the record suggests that he will perform 
all of the above-named non-qualifying tasks. These tasks are the core of the petitioner's business operation, 
and are directly necessary to provide the petitioner's services. Thus, the reasonable needs of the petitioner 
suggest that the beneficiary must spend a significant amount of time performing tasks necessary to provide 
the petitioner's services. 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, 19 I&N Dec. 593, 604 (Comm. 1988). The petitioner has failed to establish that 
these non-managerial and non-executive tasks do not constitute the majority of the beneficiary's time. See 8 
C.F.R. 5 214.2(1)(3)(ii). 
As noted above, counsel cites National Hand Tool COT. v. Pasquarell, 889 F.2d 1472, n.2 (5" C'ir. 1989), 
Mars Jewelers, Inc. v. INS, 702 F.Supp. 1570, 1573 (N.D. Ga. 1988), IKEA US, Inc. v. U.S. Dept. of Justice, 
48 F. Supp. 2d 22, 24 (D.D.C. 1999), and an unpublished AAO decision involving an employee of the Irish 
Dairy Board to stand for the proposition that the small size of a petitioner will not, by itself, undermine a 
finding that a beneficiary will act in a primarily managerial or executive capacity. Counsel has furnished no 
evidence to establish that the facts of the instant petition are analogous to those in the cited matters. Going on 
record without supporting documentary evidence is not sufficient for purposes of meeting the burden of proof 
in these proceedings. See Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm. 1972). 
Additionally, in contrast to the broad precedential authority of the case law of a United States circuit court, 
the AAO is not bound to follow the published decision of a United States district court in matters arising 
within the same district. See Matter of K-S-, 20 I&N Dec. 715 (BIA 1993). Although the reasoning 
underlying a district judge's decision will be given due consideration when it is properly before the AAO, the 
analysis does not have to be followed as a matter of law. Id. at 719. Furthermore, regarding the unpublished 
AAO decision involving an employee of the Irish Dairy Board, while 8 C.F.R. 5 103.3(c) provides that AAO 
precedent decisions are binding on all CIS employees in the administration of the Act, unpublished decisions 
are not similarly binding. As counsel has not discussed the facts of any of the cited matters, they will not be 
considered in this proceeding. 
2 In the appellate brief, counsel states that "if there was an inquiry as to what specific duties each staff- 
member was to perform, above and beyond what was included in the petition, we would have been happy to 
accommodate a request for evidence . . . ." The AAO notes that the director's denial clearly raised the issue of 
the duties of the beneficiary's subordinates. Yet, on appeal, the petitioner has provided no new explanation or 
evidence to indicate their tasks. Thus, the petitioner has had the opportunity to provide such evidence for the 
record, and has declined to do so. 
WAC-04-004-5067 1 
Page 12 
Counsel asserts that, "even if the [petitioner] employed the beneficiary as a sole employee who relied on 
contractors, he would still qualify for the L1 visa as he is responsible for the direct management of the 
[petitioner]." The fact that the beneficiary is responsible for the management of the petitioner's operation 
does not, by itself, serve as prima facie evidence that he is employed in a primarily managerial and executive 
capacity. The beneficiary's actual duties themselves reveal the true nature of the employment. Fedin Bros. 
Co., Ltd. v. Sava, 724 F. Supp. 1103, 1108 (E.D.N.Y. 1989), afd, 905 F.2d 41 (2d. Cir. 1990). As discussed 
above, the reasonable needs of the petitioner require its employees to perform numerous non-qualifying tasks. 
The record suggests that such tasks constitute a majority of the beneficiary's time, and the petitioner has failed 
to show otherwise. The petitioner has provided no evidence to show that it employs individuals on a contract 
basis that relieve the beneficiary from performing non-qualifying tasks. Going on record without supporting 
documentary evidence is not sufficient for purposes of meeting the burden of proof in these proceedings. 
Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Cornm. 1972). 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 (BLA 1988); 
Matter Of Laureano, 19 I&N Dec. 1 (BIA 1983); Matter of Ramirez-Sanchez, 17 I&N Dec. 503, 506 (BIA 
1980). 
It is noted that, in the denial, the director stated that "[tlhe petitioner provides no evidence . . . to indicate that 
additional staff would be hired." As stated above, the petitioner must establish eligibility at the time of filing 
the nonimmigrant visa petition. A visa petition may not be approved at a future date after the petitioner or 
beneficiary becomes eligible under a new set of facts. Matter of Michelin Tire Corp., 17 I&N Dec. 248 (Reg. 
Cornm. 1978). Whether the petitioner intends to hire additional employees in the future is not probative of its 
eligibility as of the date of filing the petition. Thus, the fact that the petitioner did not include evidence of 
efforts or intentions to hire additional staff has no material bearing on this visa petition. The director's 
comment on this issue will be withdrawn. 
Based on the foregoing, the petitioner has not established that the beneficiary will be employed in a primarily 
managerial or executive capacity, as required by 8 C.F.R. 5 214.2(1)(3). For this reason, the appeal will be 
dismissed. 
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. 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.