dismissed L-1A Case: Software Consulting

identifying data deleted to 
prevent clew1y unwmted 
invasian ef MV~Y 
PUBLIC COPY 
U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. 3000 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
Services 
9,- 
File: WAC 08 055 50035 Office: CALIFORNIA SERVICE CENTER 
Petition: 
 Petition for a Nonimmigrant Worker Pursuant to Section 101 (a)(15)(L) of the Immigration 
and Nationality Act, 8 U.S.C. tj 1 101 (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. 
Robert P. Wiemann, Chief 
Administrative Appeals Office 
WAC 08 055 50035 
Page 2 
DISCUSSION: The Director, California Service Center, denied the petition for a nonirnmigrant visa. The 
matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. 
The petitioner filed this nonimmigrant petition seeking to employ the beneficiary as its marketing manager as 
an L- 1 A nonimmigrant intracompany transferee pursuant to section 10 1 (a)( 15)(L) of the Immigration and 
Nationality Act (the Act), 8 U.S.C. tj 1101(a)(15)(L). The petitioner is a corporation organized in the State of 
California and is engaged in software consulting. The petitioner seeks to employ the beneficiary from 
January 1,2008 until December 3 1,20 1 1. 
The director denied the petition on the basis that the petitioner failed to establish that the beneficiary would be 
employed in the United States in a qualifying capacity. 
On appeal, counsel disputes the director's findings, asserting that Citizenship and Immigration Services (CIS) 
provided a deficient request for additional evidence (RFE). 
To establish eligibility for the L-1 nonimmigrant visa classification, the petitioner must meet the criteria 
outlined in section 10 1 (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. tj 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. 
(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 hider 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. 
Section 101(a)(44)(A) of the Act, 8 U.S.C. $ 1101(a)(44)(A), defines the term "managerial capacity" as an 
WAC 08 055 50035 
Page 3 
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 1 101(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. 
The primary issue in this proceeding is whether the beneficiary would be employed by the United States 
entity in a primarily managerial or executive capacity. 
In support of the Form 1-129, the petitioner provided a letter dated December 3, 2007, which contained the 
beneficiary's proposed position as director of project management and business development. The petitioner 
stated that the beneficiary would oversee managerial personnel, including product development and project 
, 
 management leaders, who would be in charge of complex projects within the petitioner's clients' respective 
companies. The petitioner also indicated that the beneficiary would recruit qualified consultants; participate 
in making decisions that directly effect how the petitioner conducts business and generates income; and 
WAC 08 055 50035 
Page 4 
establish business connections with venture capitalists and potential clientele by attending various functions 
where he would introduce the services offered by the petitioner.' 
The record also contains the petitioner's organizational chart, which depicts the petitioner as an entity with 
three managerial levels supported by a consulting staff that is comprised of senior and lower level consultants. 
The beneficiary is identified as the petitioner's third tier manager whose position is shown as being senior to 
the organization's consultants. It is noted that the financial documents presented by the petitioner in support 
of its Form I- 129, i.e., its federal tax returns from 2004-2006 do not establish that the petitioner has employed 
the consultants enumerated in the organizational chart. That being said, the petitioner provided numerous 
internally generated billing invoices issued to various client companies that were the recipients of consulting 
services provided by individuals whom the petitioner purportedly hired either directly or indirectly, i.e., on a 
contractual basis. It is further noted that six out of eight of the individuals who were named as consultants in 
the petitioner's organizational chart were also named in the petitioner's billing invoices, which identified the 
individuals who provided the consulting services for which the petitioner billed its various client companies. 
However, only one of the consultants, i.e.,as issued a Form 1099 by the petitioner. The 
petitioner did not provide any documentation establishing that it paid the remaining service providers who 
were named in the billing invoices. Lastly, the AAO observes that the petitioner billed its clients for 
consulting services that were provided by - who was identified in the petitioner's 
organizational chart as the chief financial officer (CFO) and managing director, a position that was second 
from the top within the petitioner's hierarchy. 
Subsequent to CIS'S initial review of the petitioner's supporting documents, an WE was issued on December 
28, 2007 instructing the petitioner to provide several of its quarterly wage reports as well as the job titles and 
job descriptions for the employees listed in the relevant wage reports. 
In response, the petitioner complied with the WE, providing its wage reports for the first three quarters of 
2007. The wage reports named a total of two employees, only one of whom was named in the organizational 
chart that was initially provided in support of the Form 1-129. Specifically, the wage reports indicated that 
earned $3,000 per quarter, while , whom the petitioner identified as a part- 
time marketing and administrative employee, earned $1,500 per quarter. The petitioner also provided its own 
internally generated "1099 Detail," which included the names of individuals and companies to whom the 
petitioner issued Forms 1099 for miscellaneous income paid in 2007. It is noted that only one individual to 
whom a Form 1099 was issued also appears in the petitioner's organizational chart. Despite the fact that the 
petitioner named a total of eight consultants in its organizational chart, six of whom were named in the 
invoices previouslv provided in support of the petition. there is no evidence that the petitioner actuallv  aid 
- A .' 1 
wages toA anyone other than ! for consulting services. Going on record 
without supporting documentary evidence is not sufficient for purposes of meeting the burden of proof in 
these proceedings. Matter of Soffici, 22 I&N Dec. 158, 165 (Comm. 1998) (citing Matter of Treasure Craff of 
California, 14 I&N Dec. 1 90 (Reg. Comm. 1972)). 
The director reiterated the entire position description as provided by the petitioner on the first two pages of its support 
letter dated December 3, 2007. As such, the AAO need not repeat this information verbatim in the matter at hand. 
WAC 08 055 50035 
Page 5 
On January 25, 2008, the director issued a decision denying the petitioner's Form 1-129. The director 
observed that the petitioner did not document its employment of the consultants who were named in its 
organizational chart. The director further noted that the beneficiary's subordinates would not be professional 
employees. Lastly, the director found that the preponderance of the beneficiary's duties would be directly 
providing the services of the petitioner. The director's findings resulted in her ultimate conclusion that the 
beneficiary would not be employed in a primarily managerial or executive capacity. 
While the AAO concurs with the director's conclusion, it is noted that the director's underlying observations 
are not reflected by the documentation on record. Namely, at the time of the denial the record did not contain 
conclusive information regarding the educational requirements of the consultants whom the beneficiary would 
supervise. As such, no conclusion could have been reached as to whether the beneficiary's subordinates 
would be professional employees. Similarly, the director's observation as to the nature of the duties the 
beneficiary would primarily perform inherently suggests that the petitioner provided a detailed description of 
such duties to form the basis for the director's observation. The AAO does not, however, find that the 
information provided thus far allows for a determination as to what specific duties the beneficiary would 
perform on a daily basis. Thus, while the AAO also concludes that a denial of the petitioner's Form 1-129 was 
warranted, this determination is primarily based on the lack of sufficient evidence and information rather than 
on a determination that the evidence of record affirmatively indicates that the petitioner is ineligible for the 
immigration benefit sought. 
To further explain, 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 AAO will then 
consider this information in light of the petitioner's organizational hierarchy, the beneficiary's position therein, 
and the petitioner's overall ability to relieve the beneficiary fiom having to primarily perform the daily 
operational tasks. In the present matter, the record lacks a comprehensive description of the beneficiary's day- 
to-day tasks and does not adequately establish the availability of support personnel who would perform the 
petitioner's daily operational tasks such that the beneficiary would be able to primarily focus on the 
performance of managerial or executive duties. Specifically, the petitioner previously stated that the 
beneficiary would oversee management personnel. The inherent implication of this statement is that the 
petitioner would employ the personnel that the beneficiary would oversee. However, as previously noted by 
the AAO, the petitioner has not provided sufficient documentation to establish its employment of a support 
staff for the beneficiary to manage. The petitioner also claimed that the beneficiary would be "responsible for 
ensuring well planned out introductions of new technologies, business functionality, and changed processes." 
However, the petitioner did not define "business functionality" or "changed processes" such as to convey a 
meaningful understanding of what these terms mean in the context of the petitioner's consulting business; nor 
did the petitioner specify which tasks the beneficiary would perform in order to ensure that he meets these 
business objectives. Reciting the beneficiary's vague job responsibilities or broadly-cast business objectives 
is not sufficient, as it is the actual duties themselves that reveal the true nature of the employment. Fedin 
Bros. Co., Ltd. v. Sava, 724 F. Supp. 1 103, 1 108 (E.D.N.Y. 1989), afyd, 905 F.2d 41 (2d. Cir. 1990). 
The petitioner also indicated that the beneficiary would review reports fiom management. However, the 
petitioner's organizational chart does not indicate that the beneficiary would oversee any managerial 
employees. The only other possibility is that the petitioner's CFOImanaging director, whose position is 
WAC 08 055 50035 
Page 6 
directly above that of the beneficiary, would produce the reports for the beneficiary to review. This remote 
possibility only casts further doubt on the petitioner's overall ability to employ the beneficiary in a primarily 
managerial or executive capacity. 
The remainder of the petitioner's description of the beneficiary's proposed employment gives the AAO further 
cause to question the nature of the beneficiary's proposed daily tasks, as this information is not readily 
conveyed in the petitioner's vague statements. Namely, the petitioner indicated that the beneficiary would 
work with the company's executive team in making business decisions regarding costs, pricing, and 
personnel. However, the record does not establish that the petitioner currently employs an "executive team;" 
nor is there any indication as to which specific tasks the beneficiary would perform on a daily basis in order to 
make the designated business decisions, which the petitioner also failed to define with any specificity. 
Lastly, while the petitioner definitively stated that the beneficiary would be charged with the task of recruiting 
consultants and introducing the petitioner's services through a variety of business venues, the petitioner has 
not provided sufficient information to establish that these tasks can be deemed managerial or executive. That 
being said, the fact that the petitioner's billing invoices show that its clients were billed for - 
consulting services indicates that the petitioner's upper level management has been directly involved in 
providing the petitioner's services, which thereby leads the AAO to question whether the beneficiary would be 
similarly engaged in the provision of such services given his proposed placement below within 
the petitioner's hierarchy. An employee who "primarily" performs the tasks necessary to produce a product or 
to provide services is not considered to be "primarily" employed in a managerial or executive capacity. See 
sections 101(a)(44)(A) and (B) of the Act (requiring that one "primarily" perform the enumerated managerial 
or executive duties); see also Matter of Church Scientology International, 19 I&N Dec. 593, 604 (Comm. 
1988). In the present matter, neither the beneficiary's vague job description nor the petitioner's stage of 
development are indicative of an entity in which the beneficiary would be employed in a qualifying 
managerial or executive capacity. 
On appeal, counsel asserts that the beneficiary manages professional employees as well as two essential 
functions within the petitioning entity. However, without documentary evidence to support the claim, the 
assertions of counsel will not satisfy the petitioner's burden of proof. The unsupported assertions of counsel 
do not constitute evidence. Matter of Obaigbena, 19 I&N Dec. 533, 534 (BIA 1988); Matter of Laureano, 19 
I&N Dec. 1 (BIA 1983); Matter of Ramirez-Sanchez, 17 I&N Dec. 503, 506 (BIA 1980). In the present 
matter, while the petitioner provided evidence establishing that the educational levels of two of the employees 
listed as the beneficiary's subordinates fit the definition of professional, the record does not contain sufficient 
evidence documenting that these individuals are, in fact, employed by the petitioner.2 Furthermore, even if 
the educational levels of the purported employees were sufficient, this documentation was not provided for 
Section 101 (a)(32) of the Act, 8 U.S.C. $ 1 101(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." Additionally, as provided in 8 C.F.R. 5 204.5(k)(2), the term 
"profession" includes not only the occupations listed in section 101(a)(32) of the Act but also any occupation 
for which a United States baccalaureate degree or its foreign equivalent is the minimum requirement for entry 
into the occupation. 
WAC 08 055 50035 
Page 7 
the remainder of the individuals whom the petitioner's organizational chart named as the beneficiary's 
subordinates. 
Counsel also asserts that CIS failed to provide an adequate WE specifying all of the deficiencies that were 
subsequently noted in the director's denial. However, even if the director had committed a procedural error 
by failing to issue a comprehensive WE, it is not clear what remedy would be appropriate beyond the appeal 
process itself. The petitioner was informed of the record's various deficiencies via the director's decision. As 
such, the petitioner has been offered the opportunity to supplement the record on appeal. It would serve no 
useful purpose to remand the case simply to afford the petitioner yet another opportunity to supplement the 
record with new evidence. Further, with regard to counsel's reference to an interoffice service memorandum 
dated February 16, 2005, CIS memoranda merely articulate internal guidelines for service personnel; they do 
not establish judicially enforceable rights. An agency's internal personnel guidelines "neither confer upon 
[plaintiffs] substantive rights nor provide procedures upon which [they] may rely." Lou-Herrera v. Trominski, 
231 F.3d 984, 989 (5th Cir. 2000)(quoting Fano v. O'Neill, 806 F.2d 1262, 1264 (5th Cir.1987)). 
Furthermore, the record does not support a finding of eligibility based on at least one additional ground that 
was not previously addressed in the director's decision. Namely, 8 C.F.R. 5 214.2(1)(3)(i) states that an 
individual petition filed on Form 1-129 shall be accompanied by 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. 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, 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 the present 
matter, the petitioner has submitted documents that are fraught with significant deficiencies. 
First, Article IV of the petitioner's Articles of Incorporation indicates that the petitioner is authorized to issue 
20,000 shares of stock. However the record contains two separate stock certificates each issuing 15,000 
shares of the petitioner's stock to and to - respectively. The 
combined total of stock issued in these two certificates is 30,000 shares, a total that exceeds the authorized 
amount by 10,000 shares. Second, even if the AAO were to disregard this anomaly, the fact that both stock 
certificates, which were each signed and dated July 1, 2004, were issued via stock certificate No. 21 gives 
further rise to the question of the validity of each document, not to mention the lack of an explanation as to 
what happened to stock certificate Nos. 1-20. Third, the AAO notes that according to the stock certificates, 
the value of the petitioner's stock is $30 per each share issued. In the present matter, it appears that the 
petitioner attempted to issue 30,000 shares of its stock, which should net the petitioner $450,000 in exchange 
for such issue. However, Schedule L, item 22(b) of the petitioner's 2006 federal tax return shows that the 
petitioner currently holds only $19,982 in exchange for stock previously issued. Even if the AAO were to 
assume that only one of the stock certificates (discussed above) were valid, the petitioner should still have 
received $225,000 in exchange therefore since, as previously noted, the stock certificates clearly indicate that 
WAC 08 055 50035 
Page 8 
each share is worth $30. It is incumbent upon the petitioner to resolve any inconsistencies in the record by 
independent objective evidence. Any attempt to explain or reconcile such inconsistencies will not suffice 
unless the petitioner submits competent objective evidence pointing to where the truth lies. Matter of Ho, 19 
I&N Dec. 582, 591-92 (BIA 1988). The considerable inconsistencies discussed herein with regard to the 
issuance of the petitioner's stock have not been resolved or addressed in any way. As such, the issue of the 
petitioner's legal ownership remains in question, causing the AAO to conclude that the petitioner has not 
established the existence of a qualifying relationship between the beneficiary's foreign and proposed U.S. 
employers. 
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), affd, 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). Accordingly, the additional ground for ineligibility discussed above will also 
serve as yet another basis for the AAO's adverse decision. 
The petition will be denied for the above stated reasons, with each considered as an independent and 
alternative basis for denial. When the AAO denies a petition on multiple alternative grounds, a plaintiff can 
succeed on a challenge only if it is shown that the AAO abused its discretion with respect to all of the AAO's 
enumerated grounds. See Spencer Enterprises, Inc., 229 F. Supp. 2d at 1043. 
In visa petition proceedings, the burden of proving eligibility for the benefit sought remains entirely with the 
petitioner. 8 U.S.C. § 1361. Here, that burden has not been met. Accordingly, the appeal will be dismissed. 
ORDER: The appeal is dismissed.