dismissed L-1A Case: Software Distribution

iden- data dele6ed to 
prevent clearly unwarranted 
invasion of personal privacy 
U.S. Department of Homeland Security 
20 Massachusetts Ave., N.W ., Rm. A3042 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
Services 
FILE: LIN 03 027 5 1 189 Office: NEBRASKA SERVICE CENTER Date: a~ 1 2m5 
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(15)(L) of the Immigration 
and Nationality Act, 8 U.S.C. 3 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. 
5)-+j 1 Robert P. Wiemann, Dir tor 
b 
Administrative Appeals Office 
LIN 03 027 51189 
Page 2 
DISCUSSION: The nonirnmigrant 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 on October 18, 
2001, and claims to be a software distribution comDanv. The petitioner claims to maintain a parent-subsidiary 
relationship with . The U.S. entity seeks to employ the beneficiary 
temporarily in the United States as its president. 
The director determined that the evidence was insufficient to establish that: (1) the petitioner was doing 
business in that it was engaged in the regular, systematic, and continuous provision of goods andlor services; 
(2) the petitioner had secured sufficient physical premises to house its new office; (3) the beneficiary will be 
employed primarily in a managerial or executive capacity; (4) there is sufficient funding or capitalization by 
the foreign entity to support doing business in the United States; and (5) the U.S. entity is operating as a 
business concern rather than as an agent or representative office of the overseas company. 
On appeal, counsel disagrees with the director's decision and asserts that the evidence submitted is sufficient 
to establish that the petitioner has secured sufficient physical premises to house the office; that the foreign 
entity has and will continue to provide the financial support needed to operate the business in the United 
States; that the beneficiary is and will be employed primarily in a managerial or executive capacity; and that 
the U.S. entity is functioning as a business rather than as an agent or representative office of the company 
abroad. Counsel also asserts that the petitioner, as a new start-up business, should not have to demonstrate 
that it has been doing business on a regular, systematic, and continuous basis. 
To establish L-1 eligibility under section 10l(a)(l5)(L) of the Immigration and Nationality Act (the Act), 
8 U.S.C. g 1101(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)(l)(ii) states, in part: 
Intracompany transferee means an alien who, within three years preceding the time of his or her 
application for admission into the United States, has been employed abroad continuously for one 
year by a fm or corporation or other legal entity or parent, branch, affiliate, or subsidiary 
thereof, and who seeks to enter the United States temporarily in order to render his or her 
services to a branch of the same employer or a parent, affiliate, or subsidiary thereof in a capacity 
that is managerial, executive, or involves specialized knowledge. 
The regulation at 8 C.F.R. 9 214.2(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. 
LIN 03 027 51189 
Page 3 
(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 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 this proceeding is whether the U.S. entity is a new office. 
The regulation at 8 C.F.R. 5 214.2(1)(l)(ii)(F) defines a "new office" as: 
(F) New office means an organization which has been doing business in the United States 
through a parent, branch, affiliate, or subsidiary for less than one year. 
The evidence of record demonstrates that the petitioning company's Articles of Incorporation were filed 
October 19, 2001, its By-Laws were filed October 18, 2001, and a lease agreement was entered into on 
November 9, 2001. The petitioner submitted an unaudited profit and loss statement for the U.S. entity which 
showed that the entity conducted business totaling $46,465.00 and suffered a net loss of $67,701.00 in 2002. 
Furthermore, the evidence shows that the petitioner entered into a Master Distributor Agreement with 
. effective November 9. 2001, entered into a RES PowerFuse REALseller- 
Program Agreement with Engineering Computer Consultants on August 2, 2002, and submitted three 
trademark applications to the United States Patent and Trademark Office on June 14, 2002. In the instant 
matter, although the record demonstrates that the U.S. entity has engaged in some business activity, there is 
nothing to show that it had been doing business, as defined by the regulations, for more than one year at the 
time the petition was filed. The petitioner does not qualify as a "new office" pursuant to 
8 C.F.R. 5 214.2(1)(l)(ii)(F). 
The second issue in this proceeding is whether the evidence demonstrates that the U.S. entity is doing business. 
The regulations at 8 C.F.R. 5 214.2(1)(l)(ii)(G) state: 
Qualifiing organization means a United States or foreign firm, corporation, or other legal 
entity which: 
(1) 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 
LIN 03 027 51 189 
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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 lOl(a)(lS)(L) of the 
Act. 
The regulations at 8 C.F.R. 5 214.2(1)(l)(ii)(H) state: 
Doing business means the regular, systematic, and continuous provision of goods andor 
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. 
The director determined that the evidence demonstrated that the U.S. entity was not doing business, but was 
functioning as an agent or representative office for the foreign entity, which he noted was evidenced by the 
petitioner's "low income, the submission of distributor agreements, and the filing of various patent 
applications for its software products." 
On appeal, counsel disagrees with the director's determination. Counsel asserts that the evidence 
demonstrates that the petitioner is a separately incorporated entity, and has a distinct legal existence fiom its 
overseas parent, and therefore, is not an agent or a representative office of the foreign entity. Counsel also 
contends that the existence of distributor agreements and the filing of patent applications demonstrate that the 
petitioner is not acting in a purely "passive" capacity, but rather is actively involved in business in the United 
States. 
Based upon a review of the evidence, the petitioner has demonstrated that the U.S. entity has a distinct legal 
existence, being separately incorporated to do business in the United States. Contrary to the director's 
decision, the evidence of record demonstrates that the U.S. entity has entered into a number of independent 
legally binding contractual agreements that do not entail an agency relationship with the foreign entity. For 
example, the petitioner submitted copies of by the U.S. entity 
including a Master Distributor Agreement with ffective November 9, 
200 1, a RES PowerFuse REALseller-Program A on August 
2,2002, and three trademark applications to the United States Patent and Trademark Office on June 14, 2602. 
The record also shows that the U.S. entity conducted some business on its own behalf totaling $46,465.00 in 
2002. The record demonstrates that the U.S. entity is operating as a separate entity rather than as an agent or 
representative office of the foreign entity. Therefore, the director's decision with respect to this issue will be 
withdrawn. 
The third issue to be addressed in this proceeding is whether the petitioner has secured sufficient physical 
premises to house its new office. 
which the petitioner stated in part: 
LIN 03 027 51189 
Page 5 
The lease agreement previously provided expired at the end of October 2002. It was decided 
services but at the time not a physical office space on 
the use this office received (as a result of extensive 
did not justify the amount paid to lease these physical 
premises. [The petitioner] has maintained an office service agreement (providing for 
telephone and mail service) with. . . . As the company expands, suitable 
and larger business  remises will of course be secured. At the moment, the office activities 0 
of [the petitioner] are housed in the home offices of [the beneficiary) and at 
and in Denver, Colorado. 
As evidence of the mail and   hone service agreement, the petitioner submitted a Corporate Identity - 
dated October 26, 2002, for the premises 
The director determined that the use of a residential apartment does not met statutory or regulatory requirements. 
The director noted that the apartment lease indicated that the apartment was reserved strictly for residential use. 
On appeal, counsel contends that there is nothing in the statutes or regulations that prohibits the temporary use of 
an apartment to run a business. Counsel further contends that prior decisions have been made in favor of 
operating a business from a home office, and cites to an unpublished decision in support of his contentions. On 
appeal, the petitioner submits as evidence, a copy of an Office Service Agreement entered into by the petitioner 
and dated April 16,2003. 
In review of the evidence, it cannot be concluded that the petitioner has secured sufficient physical premises to 
house the new ofice. The petitioner submitted on appeal, a copy of a lease agreement dated April 16, 2003, 
which was entered into by the petitioner and The petition in the instant case was filed 
November 13, 2002. 8 C.F.R. Q 103.2(b)(12) states, in pertinent part: "An application or petition shall be 
denied where evidence submitted in response to a request for initial evidence does not establish filing 
eligibility at the time the application or petition was filed." The petitioner must establish eligibility at the 
time of filing the nonirnrnigrant 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 ofMichelin Tire Corp., 17 I&N 
Dec. 248 (Reg. Comm. 1978). Citizenship and Immigration Services (CIS) cannot consider facts that come 
into being only subsequent to the filing of a petition. See Matter of Bardouille, 18 I&N Dec. 114 (BIA 1981). 
Furthermore, a petitioner may not make material changes to a petition that has already been filed in an effort 
to make an apparently deficient petition conform to CIS requirements. See Matter oflzummi, 22 I&N Dec. 
169, 175 (Comrn. 1998). The record shows that the lease agreement submitted on appeal was entered into 
subsequent to the director's request for evidence and his denial of the instant petition. Therefore, the 
petitioner's new evidence does not demonstrate eligibility at the time the petition was filed. 
The petitioner admits to the U.S. entity being housed in the beneficiary's apartment at the time the petition was 
filed. Counsel suggests that the use restrictions contained in the apartment lease have nothing to do with 
Citizenship and Immigration Services (CIS) statutory and regulatory requirements, and, therefore, should not 
be taken into consideration in determining the petitioner's eligibility in that respect. Contrary to counsel's 
claim, AAO cannot ignore state law or real estate code provisions in an effort to accommodate an otherwise 
ineligible application for L-IA classification. Furthermore, there is no evidence in the record that 
demonstrates that the petitioner has leased sufficient office or warehouse facilities to accommodate the 
anticipated employees or equipment needed to adequately function as a business. The petitioner submitted a 
LIP4 03 027 51189 
Page 6 
photograph of the apartment's interior. The photograph demonstrated a single desk space area within an 
apartment with a temporary business sign hanging in the nearby window. Based upon the apartment lease 
agreement, the beneficiary was in violation of the apartment use restrictions. 
The petitioner submitted a copy of an organizational chart depicting the U.S. entity's proposed hierarchical 
structure. The chart demonstrates that the entity proposed to employ five managerial or executive employees in 
2003. A single desk space would not have been sufficient to accommodate the U.S. entity's five proposed 
employees. It is also noted that the petitioner has demonstrated its multiple short-term lease arrangements entered 
into to house its business over the course of a year, and its attempt to establish yet another lease arrangement 
subsequent to the director's decision to deny the petition in the instant matter. The evidence of record is 
insufficient to establish that the petitioner had secured sufficient physical premises to house the new office at the 
time of filing of the petition. For this reason, this petition may not be approved. 
The fourth issue in this proceeding is whether the petitioner has submitted sufficient evidence to establish that 
there is sufficient funding or capitalization to support the operation of the U. S. entity. 
The director determined that it was not possible to determine whether the foreign entity had sufficient financial 
resources to fully support the U.S. entity and that this was evidenced from the beneficiary's place of residence 
being used to house the U.S. entity's business. The director also determined that although the petitioner 
submitted financial statements as evidence of the fm's financial posture, the currency amounts had not been 
converted to US dollar amounts, thus making it impossible to determine the fm's actual value. 
On appeal, counseI contends that the foreign entity realized net revenues in the amount of approximately 
$2,299,387US in 2002. Counsel refers to the foreign entity's 2002 financial statements submitted as evidence, 
and the Xe.com Universal Currency Converter Results, equating the Euro to the United States dollar that was 
submitted on appeal. 
The evidence of record demonstrates that although the foreign entity may have realized net revenues in excess 
of two million United States dollars ($2,000,000.00) in 2002, its profit after taxes was only $32,626.00US. 
Further, there is nothing in the record to demonstrate that the foreign entity has financially contributed to the 
establishment of the U.S. entity or that the entity is in a financial position to do so in the near future. For 
example, although the record demonstrates that the U.S. entity operated at a net loss of $67,701.00 in 2002, 
there is no evidence to show that the foreign entity has or will be able to absorb such a loss. A review of the 
financial history of the U.S. and foreign entities demonstrates that the U.S. entity is an undercapitalized 
company, and that the foreign entity has not demonstrated its ability or willingness to fund or capitalize the 
U.S. enterprise. For this additional reason, this petition may not be approved. 
The final issue to be addressed 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. 5 1 101(a)(44)(A), provides: 
The term "managerial capacity" means an assignment within an organization in which the 
employee prirnarily- 
(i) Manages the organization, or a department, subdivision, function, or 
component of the organization; 
LIN 03 027 5 1 189 
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(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-today 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), provides: 
The term "executive capacity" means an assignment within an organization in which the 
employee primarily- 
(0 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 support of the petition, the petitioner stated that the beneficiary's responsibilities would include: 
- Build the reseller channel and generate end-user business 
- Support the reseller channel in all means 
- Organize and attend trade shows 
- Present RES PowerFuse on reseller and distributor events 
- Hire employees for sales, back office and marketing in the USA 
- Explore the Canadian and Caribbean market and set up reseller channels where possible 
In response to the director's request for additional evidence, the petitioner describes the beneficiary's duties in the 
United States in part as: 
LIN 03 027 5 1 189 
Page 8 
[The beneficiary] will be employed as [the U.S. entity's] president. As such, he will be the 
highest level executive employed by this company, and will continue to hold the highest level 
executive position as the company expands over the next few years. 
. . . [the beneficiary will devise strategies and formulate policies to ensure that the company's 
corporate and business objectives m met, and will meet and confer with subordinate executives 
and managerial personnel to ensure that [the U.S. entity's] operations are implemented in 
accordance with its corporate policies. He will retain overall accountability for the running of 
the company, but will delegate a number of his responsibilities to lower-level executives and 
managers. . . .[The beneficiary] will utilize his executive authority to establish and maintain a 
relationship with the company's distributor . . . , to spearhead the establishment of sales channels 
through the reseller market in the United States, and to oversee and direct the building and 
expansion of sales of the company's product through these channels. [The beneficiary] will 
confer with the company's board members, organization officials, and staff members to establish 
policies and formulate plans. He will have ultimate executive authority for analyzing the 
company's overall operations to evaluate the performance of the company and its staff and to 
determine mas of cost reduction and program improvement. 
The petitioner also indicated that the beneficiary will be responsible for directing and controlling the management 
of the company's day-today financial activities, and that he will ultimately direct and supervise two subordinate 
managers. The petitioner submitted an organizational chart depicting the U.S. entity's current hierarchy with the 
beneficiary as president and a marketing manager under his direction. The chart also forecasted the positions of 
sales manager, sales support manager, and channel support manager. 
The director determined that the evidence failed to establish that the beneficiary was acting solely as an executive 
or manager. The director noted that in the absence of annual wage statements, it could not be determined whether 
the two employees had received wages during 2002. The director stated that since both positions were designated 
as managerial, it could be concluded that the beneficiary is and will be performing the day-today functions of the 
operation. 
On appeal, counsel disagrees with the director's determination, and asserts, "[tlhe fact that the beneficiary has 
additional duties to his executive duties does not warrant a finding that he is not an executive employee." 
Counsel further asserts that there is no statutory or regulatory requirement that the beneficiary as an intracompany 
transferee solely perform executive duties. Counsel argues that the regulatory and statutory requirements for a 
new office petition indicate that the petitioner demonstrate that the beneficiary is primarily performing managerial 
or executive duties. Counsel also asserts that a director's decision should not be based solely on company size. 
In evaluating whether the beneficiary is employed in a primarily managerial or executive capacity, the AAO 
will look first to the petitioner's description of the beneficiary's job duties. See 8 C.F.R. 8 214.2(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. Further, 
the petitioner must show that the beneficiary will perform the high level responsibilities that are specified in 
the definitions, and that the beneficiary will primarily perform these specified responsibilities and will not 
spend a majority of his or her time on day-today functions. Champion World, Inc. v. INS, 940 F.2d 1533 
(Table), 1991 WL 144470 (9th Cir. July 30, 1991). Further, although the regulations do not require proof 
that the duties performed by the beneficiary in the first year will be entirely managerial or executive, there 
must be some evidence of managerial or executive activity to substantiate the hierarchical position. In this 
LIN 03 027 51189 
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matter, the record shows that the beneficiary will be primarily performing the production, marketing, 
distribution, and sales functions of the business rather than performing managerial or executive duties. 
Consequently, there is insufficient evidence to show that the beneficiary will perform the high level 
responsibilities as defined, or that he will primarily perform those duties rather than spending the majority of 
his time performing day -to-day functions of the organization. 
On review, the petitioner has provided a vague and nonspecific description of the beneficiary's duties that 
fails to demonstrate what the beneficiary does on a day-today basis. For example, the petitioner states that 
the beneficiary's duties will include devising strategies and formulating policies, establishing and maintaining 
relationships with company distributors, spearheading and overseeing the sales department. The petitioner 
did not, however, define the petitioner's strategies and policies, nor clarify the company's sales and 
communication processes. 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 (E.D.N.Y. 1989), afd, 
905 F.2d 41 (2d. Cir. 1990). 
Further, rather than providing a specific description of the beneficiary's duties, the petitioner generally 
paraphrased the statutory definition of executive capacity. See section lOl(a)(44)(A) and (B) of the Act, 
8 U.S.C. 1101(a)(#)(A) and (B). For instance, the petitioner depicted the beneficiary as directing the 
management of the organization, establishing the company's plans and policies, and exercising 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. Sava, supra.; Avyr 
Associates Inc. v. Meissner, 1997 WL 188942 at "5 (S.D.N.Y.). 
Counsel correctly observes that 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 to a multinational manager or executive. 
See section 101(a)(44)(C), 8 U.S.C. 5 1 101(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 Gorp. v. INS, 153 F. Supp. 2d 7, 15 (D.D.C. 2001). The size of a company may be especially 
relevant when CIS notes discrepancies in the record and fails to believe that the facts asserted are true. Id. 
Although the director based his decision partially on the size of the enterprise and the number of staff, the 
director did not take into consideration the reasonable needs of the enterprise. As required by section 
lOl(a)(44)(C) of the Act, if staffing levels are used as a factor in determining whether an 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. 
At the time of filing, the U.S. entity employed the beneficiary as president, plus a marketing manager. The 
AAO notes that all of the employees have managerial or executive titles. The petitioner did not submit 
evidence that it employed any subordinate staff. Based on the petitioner's representations, it does not appear 
that the reasonable needs of the petitioning company might plausibly be met by the services of the beneficiary 
as president. Regardless, the reasonable needs of the petitioner serve only as a factor in evaluating the lack of 
staff in the context of reviewing the claimed managerial or executive duties. The petitioner must still 
establish that the beneficiary is to be employed in the United States in a primarily managerial or executive 
LIN 03 027 51189 
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capacity, pursuant to sections 101(a)(44)(A) and (B) or the Act. As discussed above, the petitioner has not 
established this essential element of eligibility. Therefore, the petition may not be approved. 
Although not directly addressed by the director, another issue in this proceeding is whether the petitioner has 
submitted sufficient evidence to show that the U.S. entity will be able to support a managerial or executive 
position within one year of operation in compliance with the regulatory requirements for a "new office." See 
8 C.F.R. 5 214.2(1)(3)(v)(C). The petitioner claims that the U.S. entity is a computer software distribution 
company. 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 responsibility cannot be performed. In order to qualify for L-1 nonirnmigrant 
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 or managerial 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. 
Further, the record does not demonstrate that the U.S. entity will contain the organizational complexity to support 
the proposed managerial or executive staff position. In the instant matter, although the petitioner anticipates 
hiring additional employees in the future, this anticipated activity has not been substantiated by independent 
documentary evidence. In addition, the petitioner failed to submit a realistic business plan that shows, in detail, 
how the new business will be fully operational within one year, with employees in place and doing business by 
providing a product or service. In the instant matter, the record demonstrates that the U.S. entity operated at a 
loss for the year 2002. Although the evidence demonstrates that the petitioner intends to hire new employees it 
has not provided detaiied position descriptions to show that they will be employed in other than non-professional 
positions. There has been no evidence presented that details the time frame in which new employees will be 
hired, what the their duties will consist of, or how the beneficiary's duties will interrelate with that of the new 
hires. There is no evidence to show that the beneficiary will be supervising a subordinate staff of professional, 
managerial, or supervisory personnel who will relieve the beneficiary from performing nonqualifying duties. 
Furthermore, the petitioner's evidence is not sufficient in establishing 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 than the beneficiary functioning at a senior level within the organizational hierarchy within one year of 
operation in the United States, it appears from the record that he will continue to perform the day-today 
services of the business. Without documentary evidence to support the claim, the assertions of counsel will 
not satisfy the petitioner's burden of proof. Matter of Obaigbena, 19 I&N Dec. 533, 534 (BIA 1988); Matter 
of Ramirez-Sanchez, 17 I&N Dec. 503, 506 (BIA 1980). For this additional reason, the petition may not be 
approved. 
Beyond the decision of the director, another issue in this proceeding is whether the petitioner has submitted 
sufficient evidence to establish that the beneficiary has been employed by the foreign entity in a primarily 
managerial or executive capacity. In response to the director's request for evidence, the petitioner stated that the 
beneficiary had been employed by the foreign entity between 1999 and January of 2002. The petitioner also 
stated that the beneficiary served as chief executive officer and managing director during that period and was 
LIN03027 51189 
Page 11 
responsible for directing and overseeing the day-today operations of the foreign entity, spearheading the 
establishment of the company's sales within the European market. The petitioner further stated that the 
beneficiary was charged with discretionary decision-making responsibilities, reported only to the company's 
Board of Directors, created strategies and formulated policies, and oversaw subordinate executives and 
managerial personnel. 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. 8 1101(a)(44)(A). 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, supra.; Avyr Associates Inc. v. 
Meissner, supra. Although the petitioner submitted a copy of the foreign entity's organizational chart, such 
evidence fails to detail how the subordinate positions interrelate with that of the beneficiary's. For these 
additional reasons, the petition may not be approved. 
An application or petition that fails to comply with the technical requirements of the law may be denied by the 
AAO even if the Service Center does not identify all of the grounds for denial in the initial decision. See 
Spencer Entelprises, Inc. v. United States, 229 F.SU~~.~* 1025, 1043 (E.D. Cal. 2001), affd. 345 F.3d 683 
(9'" 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). 
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. The petitioner has not sustained that burden. 
ORDER: The appeal is dismissed.