dismissed L-1A Case: Software Development

Non-Precedent Decision of the 
Administrative Appeals Office 
MATTER OF GTII-, INC. pATE: NOV. 22,2016 
APPEAL OF CALIFORNIA SERVICE CENTER DECISION 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a software developer with two employees, seeks to continue its temporary employment 
of the Beneficiary as its chief executive officer under the L-1 A nonimmigrant classification for 
intracompany transferees. See Immigration and Nationality Act (the Act)§ 101(a)(15)(L), 8 U.S.C. 
§ 110l(a)(l5)(L). The L-lA classification allows a corporation or other legal entity (including its 
affiliate or subsidiary) to transfer a qualifying foreign employee to the United States to work 
temporarily in an executive or managerial capacity. 
/. The Director, California Service Center, denied the petition concluding that the Petitioner did not 
establish that it would employ the Beneficiary in a managerial or executive capacity. 
The maher is now before us on appeal. In support of its appeal, the Petitioner disputes the Director's 
decision, asserting that the Beneficiary would be employed in an executive capacity. The Petitioner 
contends that the Beneficiary "continues" to be employed in an executive capacity in light of the 
prior approval of its new office petition. 
Upon de novo review, we will dismiss the appeal. 
I. LEGAL FRA,MEWORK 
To establish eligibility for the L-1 nonimmigrant visa classification, a qualifying organization must 
have employed the Beneficiary in a 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. Section 10l(a)(l5)(L) of the Act. 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. !d. 
The regulation at 8 C.F.R. § 214.2(1)(3) states that an individual petition filed on Form I-129, 
Petition for a Nonimmigrant Worker, shall be accompanied by: 
Matter of GT/1-. Inc. 
(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) ofthis 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 qualities him/her 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 regulation at 8 C.F.R. § 214.2(1)(14)(ii) also provides that a visa petition, which involved the 
opening of a new office, may be extended by filing a new Form 1-129, accompanied by the 
following: 
(A) Evidence that the United States and foreign entities are still qualifying 
organizations as defined in paragraph (l)(l)(ii)(G) of this section; 
(B) Evidence that the United States entity has been-doing business as defined in 
paragraph (l)( 1 )(ii)(H) of this section for the previous year; 
(C) A statement of the duties performed by the beneficiary for the previous year 
and the duties the beneficiary will perform under the extended petition; 
(D) A statement describing the staffing of the new operation, including the 
number of employees and types of positions held accompanied by evidence of 
wages paid to employees when the beneficiary will be employed in a 
management or executive capacity; and 
(E) Evidence of the financial status of the United States operation. 
II. U.S. EMPLOYMENT IN A MANAGERIAL OR EXECUTIVE CAPACITY 
As indicated above, the primary issue to be addressed in this decision is whether the Petitioner 
provided sufficient evidence to establish that the Beneficiary would be employed in the United 
States in an executive capacity. The Petitioner does not claim that the Beneficiary will be employed 
2 
Matter ofGTII-, Inc. 
in a managerial capacity. Therefore, we restrict our analysis to whether the Beneficiary will be 
employed in an executive capacity. 
Section 10l(a)(44)(B) of the Act, 8 U.S.C. § ll01(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 orgimization. 
In the present matter, the Petitioner filed the instant Form 1-129 on April 28, 2016, claiming two 
employees and a net annual income of $100,000 after its initial year of operation. In a supporting 
statement that accompanied the petition, the Petitioner claimed that the Beneficiary would be 
employed in an executive capacity. The Petitioner stated that the Beneficiary has and will continue 
to secure "numerous contracts with many U.S. clients" and points out that it was able to meet its 
financial goals in its first year of operation. The Petitioner further stated that the Beneficiary has and 
will continue to negotiate contracts in an effort to expand the business and obtain additional clients. 
The Petitioner did not explain how obtaining clients and negotiating contracts to expand its business 
qualifies as time spent in an executive capacity, nor did it establish that it would have the ability to 
relieve the Beneficiary from primarily performing non-qualifying operational tasks within the scope 
of a two-person operation where one of the employees is the Beneficiary himself. 
Other supporting evidence in the record includes the Petitioner's quarterly tax return and quarterly 
wage report for the 2016 first quarter, both of which indicate that the Petitioner did not have any 
employees in March 2016. The quarterly wage report shows that the Beneficiary was the sole 
employee in January and February 2016. The Petitioner also provided various business contracts in 
which the Beneficiary assumed varying roles as a software developer, reseller of licensed software, 
was party to a "Teaming Agreement" in which the Petitioner agreed to collaborate with another 
company to solicit business, and was party to a business contract to sell and implement the software 
of another company. The Petitioner did it specify who would perform the software development and 
sales services in several of the, submitted service agreements. 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 10l(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'r 1988). Although 
the Petitioner also provided several nondisclosure agreements in which it was identified as one of the 
parties, it did not explain the relevance of such agreements within the scheme of its business. 
3 
Matter ofGTII-, Inc. 
After reviewing the Petitioner's submissions, the Director determined that additional evidence was 
necessary to establish that the Beneficiary would be employed in the United States in an executive 
capacity. Accordingly, the Director issued a request for evidence (RFE) instructing the Petitioner to 
list the Beneficiary's typical executive job duties with the percentage oftime to be spent on each job 
duty, the Petitioner's organizational chart depicting its staffing structure accompanied by employee 
job descriptions and educational levels, copies of the Petitioner's state quarterly wage reports with 
employee names and salaries, and payroll evidence, including the Petitioner's payroll summary and 
IRS Forms W-2, W-3, and 1099-MISC. 
The Petitioner responded with a statement claiming that the Beneficiary directs the management of 
two major components, which it identified as hiring and assigning roles to new employees and 
negotiating contracts. With regard to the human resources component, the Petitioner stated that the 
Beneficiary hired an account manager on August 4, 2015 and a support manager on May 1, 20~6. 
The Petitioner stated that the account manager has over 15 years of IT experience as well as 
experience in client deliveries and "BilOW tools" and listed his job duties as follows: (1) resolving 
technical and quality issues concerning the products and services provided to the client; (2) ensuring 
that clients receive timely delivery of products and services; (3) working with the Petitioner's 
development and support team and engaging in development and delivery; (4) developing a 
"workflow/algorithm" for the Petitioner's "Business Intelligence/Dataware [sic] (BIIDW)" housing 
tool used for the Petitioner's client; and (5) provide the client and internal team's feedback. 
Although the Petitioner also provided a job description for the support manager, we need not 
consider this information at the present time, given that this position was filled after the petition was 
filed and therefore cannot be used to determine whether the Petitioner was able to support the 
Beneficiary in an executive capacity at the time of filing. A visa petition may not be approved based 
on speculation of future eligibility or after the Petitioner or Beneficiary becomes eligible under a 
new set of facts. See, e.g., Matter of }.t/ichelin Tire Corp., 17 I&N Dec. 248 (Reg'l Comm'r 1978); 
Matter of Katigbak, 14 I&N Dec. 45, 49 (Comm'r 1971). 
With regard to the second component - directing contract negotiation - the Petitioner reiterated the 
Beneficiary's success in securing nine contracts, stating that his efforts are helping the Petitioner to 
meet its primary objective of expanding the U.S. organization. The Petitioner stated that the 
Beneficiary is "primarily responsible for signing the new contracts and ensuring the delivery of 
software and services" to the company clients as well as providing leadership for critical projects, 
managing personnel, hiring and firing staff, overseeing budget and finances, and directing 
operations. Despite the RFE instructions, the Petitioner did not provide a percentage breakdown 
describing how the Beneficiary's time would be allocated among these duties and responsibilities. 
Failure to submit requested evidence that precludes a material line of inquiry shall be grounds for 
denying the petition. 8 C.F.R. § 103.2(b)(l4). The Petitioner pointed to the Beneficiary's authority 
in determining the method for approaching clients and explaining about the Petitioner's products and 
services in a way that "would convince them to sign contracts" to bring in new business. In other 
words, the Petitioner indicated that the Beneficiary assumes a key role in the sales process wherein 
he represents the U.S. entity in soliciting potential clients, arranging to present the products and 
4 
Matter ofGTII-, Inc. 
services that the Petitioner offers, and ultimately negotiating the terms of each client contract. The 
Petitioner did not explain how these sales-based job duties exemplify and fit within the definition of 
executive capacity. As stated above, 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. at 604. 
The Petitioner also provided a copy of its organizational chart, which depicts the Beneficiary at the 
top of a three-person organization where he oversees an account manager and a support manager. 
As previously indicated, since the support manager was not hired until after the petition was filed, 
eligibility in this matter will be determined based on the Petitioner as a two-person operation, which 
included the Beneficiary and the account manager. See Matter of Michelin Tire Corp., 17 I&N Dec. 
248. In reviewing the role of the account manager within the Petitioner's organization, we note that 
while the account manager's job description makes a brief reference to a "development and support 
team," the Petitioner did not provide any information clarifying who is part of this team, what 
specific tasks they perform, or why the people who comprise this unknown team were not included 
in the Petitioner's organizational hierarchy. The record also lacks evidence showing that the 
Petitioner pays wages or a salary to anyone other than the Beneficiary and the account manager at 
the time the petition was filed. Going on record without supporting documentary evidence is not 
sufficient for purposes of meeting the burden of proof in these proceedings. Matter of So.ffici, 22 
I&N Dec. 158, 165 (Comm'r 1998) (quoting Matter ofTreasure Craft ofCalijornia, 14 I&N Dec. 
190 (Reg'l Comm'r 1972)). 
The Director reviewed the RFE response and concluded that the Petitioner did not establish that the 
Beneficiary would be employed in a managerial or executive capacity. In denying the petition, the 
Director found that the Petitioner provided a deficient position description that did not specify the 
Beneficiary's day-to-day job duties and further determined that the Petitioner did not establish that 
the Beneficiary's subordinates occupy professional positions, regardles~ of the educational 
credentials they may actually possess. 
We find that the Director's focus on the Beneficiary's subordinates was misplaced, given that 
personnel management and the professional nature of a beneficiary's subordinates are factors that 
are critical to an analysis of a beneficiary's managerial capacity; here the Petitioner expressly 
claimed that the Beneficiary would be employed in an executive capacity, where the focus is less on 
personnel management and more on whether the Petitioner provided sufficient evidence to establish 
that it has the organizational hierarchy to elevate the Beneficiary to an executive level. 
The statutory definition of the term "executive capacity" focuses on a person's elevated position 
within a complex organizational hierarchy, including major components or functions of the 
organization, and that person's authority to direct the organization and its components and functions. 
Section 101(a)(44)(B) of the Act, 8 U.S.C. § 1101(a)(44)(B). Under the statute, a beneficiary must 
have the ability to "direct the management" and "establish the goals and policies" of that 
organization. Inherent to the definition, the organization must have a subordinate level of 
5 
Matter ojGTII-, Inc. 
managerial employees for a beneficiary to direct and a beneficiary must primarily focus on the broad 
goals and policies of the organization rather than the day-to-day operations of the enterprise. An 
individual will not be deemed an executive under the statute simply because they have an executive 
title or because they "direct" the enterprise as the owner or sole managerial employee. A beneficiary 
must also exercise "wide latitude in discretionary decision making" and receive only "general 
supervision or direction from higher level executives, the board of directors, or stockholders of the 
organization." Id. 
In the instant matter, the Petitioner's organizational chart, information provided in the petition, and 
the Petitioner's own claims regarding the hiring dates of its account manager and support manager 
indicate that the Petitioner's entire organization was comprised of two people- the Beneficiary and 
the account manager. Given that the support manager was only hired after the filing of the petition, 
this individual cannot be deemed as having been part of the Petitioner's organizational hierarchy at 
the time of filing. The Petitioner's organizational chart does not show any additional levels of 
personnel beyond the account manager, thereby indicating that the account manager, despite his 
position title, was not elevated to a management level position, as he had no one to manage. This 
lack of organizational complexity similarly indicates that the Beneficiary could not have been 
elevated to an executive level. 
Furthermore, the Beneficiary's job description and his role within the U.S. entity also indicate that 
the Petitioner has not progressed to a phase of operation where it can support the Beneficiary in an 
executive capacity. In general, when examining the executive capacity of the Beneficiary, we 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 in a managerial or executive capacity. ld. 
The definitions of managerial and executive capacity each have two parts. First, the Petitioner must 
show that the Beneficiary will perform certain high-level responsibilities. Champion World, Inc. v. 
INS, 940 F.2d 1533 (Table), 1991 WL 144470 (9th Cir. July 30, 1991). Second, the Petitioner must 
prove that the Beneficiary will be primarily engaged in managerial or executive duties, as opposed to 
ordinary operational activities alongside the Petitioner's other employees. See Family Inc. v. USCIS, 
469 F.3d 1313, 1316 (9th Cir. 2006); Champion World, Inc. v. INS, 940 F.2d 1533. 
Further, if staffing levels are used as a factor in determining whether an individual is acting in a 
managerial or executive capacity, U.S. Citizenship and Immigration Services (USCIS) must take 
into account the reasonable needs of the organization, in light of the overall purpose and stage of 
development ofthe organization. See section 101(a)(44)(C) ofthe Act. 
In this matter, the Petitioner did not provide a detailed description of the Beneficiary's daily job 
duties. Specifics are clearly an important indication of whether a beneficiary's duties are primarily 
executive or managerial in nature, otherwise meeting the definitions would simply be a matter of 
reiterating the regulations. Fedin Bros. Co., Ltd v. Sava, 724 F. Supp. 1103, 1108 (E.D.N:Y. 1989), 
aff'd, 905 F .2d 41 (2d. Cir. 1990). Instead, the Petitioner focused on the Beneficiary's critical role in 
6 
Matter ofGT/1-, Inc. 
hiring new staff and attaining new contracts to expand the company; the Petitioner generally stated 
that the Beneficiary's job duties include "providing leadership and direction for critical company 
projects, securing new contracts and contracts with U.S. clients, managing personnel, hiring and 
firing staff, overseeing the financials and budget for the new office, and generally directing the 
overall operations ofthe business." However, this broad list of responsibilities does not establish the 
nature of the tasks the Beneficiary would primarily perform under an approved petition. We note 
that the actual duties themselves reveal the true nature of the employment. Fe din Bros. Co .. Ltd. v. 
Sava, 724 F. Supp. 1108. 
Moreover, the evidence of record indicates that rather than directing the management of key 
components of the organization, the Beneficiary directly performs the underlying job duties of those 
key components by marketing and selling the Petitioner's products and services to existing and 
potential clients and by carrying out various human resources functions, such as seeking out and 
hiring employees to carry out the operational and administrative tasks of its understaffed 
organization. As indicated above, the Petitioner has not provided a job description that specifies 
what job duties, other than hiring and firing staff and getting new clients for the company, the 
Beneficiary would perform; nor did the Petitioner provided a percentage breakdown specifying how 
much time the Beneficiary plans to allocate to these nonexecutive job duties. 
As indicated above, the record does not demonstrate that the Petitioner had the staff to relieve the 
Beneficiary from having to allocate his time primarily to these and other nonexecutive tasks. A 
petitioner's unsupported statements are of very limited weight and normally will be insufficient to 
carry its burden of proof, particularly when supporting documentary evidence would reasonably be 
available. See Matter of Soffici, 22 I&N Dec. 158, 165 (Comm'r 1998) (citing Matter o.f Treasure 
Craft of Cal., 14 I&N Dec. 190 (Reg'l Comm'r 1972)); see also Matter o.fChawathe, 25 I&N Dec. 
369, 376 (AAO 2010). The Petitioner must support its assertions with relevant, probative, and 
credible evidence. See Matter of Chawathe, 25 I&N Dec. at 376. While the Petitioner provided 
evidence to show that the Beneficiary hired one subordinate to assist with the operational tasks prior 
to the filing of the petition, it has not established that a single 'employee was sufficient to relieve the 
Beneficiary from having to devote his time primarily to tasks that are outside the realm of executive 
capacity. Given that the second employee, whom the Petitioner hired to provide customer service, 
was not part of the petitioning organization at the time of filing, we are left to question who, if not 
the Beneficiary was carrying out the customer service role at the time of filing. While a company's 
size alone, without taking into account the reasonable needs of the organization, may not be the 
determining factor in denying a visa petition for classification as a multinational manager or 
executive, the Petitioner's reasonable needs, which may be driven by its lack of sufficient support 
personnel, cannot and will not supersede its burden to demonstrate that it has the ability to employ 
the Beneficiary in an executive capacity. See section 101(a)(44)(C) of the Act, 8 U.S.C. 
§ 1101(a)(44)(C). It is appropriate for USCIS to consider the size of the petitioning company in 
conjunction with other relevant factors, such as 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. Family Inc. v. USCIS, 469 F.3d 1313 
(9th Cir. 2006); Systronics Corp. v. INS, 153 F. Supp. 2d 7, 15 (D.D.C. 2001). 
Matter ofGTII-, Inc. 
In sum, the Petitioner has not provided sufficient evidence to establish that it has the infrastructure to 
support the Beneficiary in an executive capacity. The Petitioner's prior reference to a development 
and support team is not corroborated by the evidence of record, which contains no further 
explanation or documentation establishing the existence of a development and support team, the 
Petitioner's compensation of employees or contractors who comprise the alleged team, or 
information clarifying how the claimed team functions within the scope of the U.S. entity to relieve 
the Beneficiary from having to perform nonexecutive functions. Again, going on record without 
supporting documentary evidence is not sufficient for purposes of meeting the burden of proof in 
these proceedings. Matter ofSojjici, 22 I&N Dec. at 165. 
On appeal, the Petitioner contends that the Director used the terms managerial and executive 
capacity interchangeably, despite the claim that the Beneficiary would be employed in an executive 
capacity. While we previously acknowledged the f1aw in the Director's analysis, we nevertheless 
find that due to the various deficiencies in the Beneficiary's job description and the lack of an 
organizational complexity capable of relieving the Beneficiary from having to allocate his time 
primarily to performing the Petitioner's operational and administrative tasks, the Petitioner has not 
established that the Beneficiary would be employed in an executive capacity. As such, even if the 
Director had conducted a proper analysis, the end result would be the same in light of the 
deficiencies described above. 
Lastly, while the Petitioner makes a brief reference to a previously filed L-1 petition, the record 
indicates that the prior petition was filed pursuant to the "new office" regulations. See 8 C.F.R. 
§ 214.2(1)( 1 )(ii)(F). When a new business is established and commences operations, the regulations 
recognize that a designated manager or executive responsible for setting up operations will be 
engaged in a variety of activities not normally performed by employees at the executive or 
managerial level and that often the full range of managerial or executive responsibility cannot be 
performed. In order to qualify for L-1 nonimmigrant classification during the first year of 
operations, the regulations require the petitioner to disclose the business plans and the size of the 
United States investment, and thereby establish that the proposed enterprise will support an 
executive position within one year of the approval of the petition. See 8 C.F.R. § 214.2(1)(3)(v)(C). 
This evidence should demonstrate a realistic expectation that the enterprise will succeed and rapidly 
expand as it moves away from the developmental stage to full operations, where there would be an 
actual need for a manager or executive who will primarily perform qualifying duties. The evidence 
of record must be reviewed to determine whether, after its first year of operation, the Petitioner was 
able to progress beyond the initial stage of development and reached the next phase during which it 
has the need and ability to employ the Beneficiary in a managerial and/or executive capacity. We 
note that the regulation at 8 C.F.R. § 214.2(1)(3)(v)(C) only allows the "new office" operation one 
year within the date of approval of the petition to support an executive or managerial position. There 
is no provision in USCIS regulations that allows for an extension of this one-year period. If the 
business does not have the necessary staffing after one year to sufficiently relieve the Beneficiary 
from performing operational and administrative tasks, the Petitioner is ineligible by regulation for an 
extension. 
8 
Matter ofGT/1-, Inc. 
In the matter at hand, the Petitioner, at the time of filing, had not reached a stage of development 
where it could adequately support the Beneficiary in an executive positon such that the primary 
portion of the Beneficiary's time is allocated to executive tasks. Here, the evidence of record does 
not support the contention that the Petitioner's two-person organization, which at the time of filing 
consisted of the Beneficiary and one other employee, was sufficient to support the Beneficiary in an 
executive capacity. Therefore, the instant petition cannot be approved. 
III. CONCLUSION 
The petition will be denied and the appeal dismissed for the above stated reason. 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; Matter of Otiende, 26 I&N 127, 128 (BIA 
20 13). Here, that burden has not been met. 
ORDER: The appeal is dismissed. 
Cite as Matter o.fGTII-, Inc., ID# 63635 (AAO Nov. 22, 2016) 
9