dismissed L-1A Case: Software Services

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U.S. Department of Homeland Security 
20 Massachusetts Ave., N.W., Rrn. 3000 
Wash~ngton, DC 20529 
U. S. Citizenship 
and Immigration 
Services 
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File: SRC 05 014 51665 Office: TEXAS SERVICE CENTER Date: ax 2 0 2006 
Petition: 
 Petition for a Nonimmigrant Worker Pursuant to Section 10 1 (a)(15)(L) of the Immigration 
and Nationality Act, 8 U.S.C. 5 1 101(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. 
P. Wiernann, dief 
inistrative Appeals Office 
SRC 05 014 51665 
Page 2 
DISCUSSION: The Director, Texas Service Center, denied the petition for a nonimmigrant 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 employ the beneficiary 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. 8 1101(a)(15)(L). The petitioner is Texas a corporation engaged in software sales, support and 
consulting services. The petitioner is a subsidiary of Enhanced Trading Consultants cc, located in 
Johannesburg, South Africa. The petitioner seeks to employ the beneficiary as its vice president, customer 
support for a three-year period. 
The director denied the petition concluding that the petitioner did not establish that the beneficiary would be 
employed in the United States in a primarily managerial or executive capacity. 
The petitioner subsequently filed an appeal. The director declin'ed 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 director 
"erroneously concluded that employees [or] staff are a requirement for L-1A eligibility. . . . contrary to its 
own regulations." Counsel further contends that the director ignored evidence submitted to establish that the 
U.S. business can support the need for an L-1A executive manager for three years. Counsel submits a 
statement from the petitioner and additional evidence in support of the appeal. 
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. ~~ecificall~, 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 ~nto 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. fj 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 (I)(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 
SRC 05 014 51665 
Page 3 
education, training, and employment qualifies hirnlher 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. 
At issue in the present matter is whether the petitioner established that the beneficiary will be employed by 
the United States entity in a primarily managerial or executive capacity. 
Section 101(a)(44)(A) of the Act, 8 U.S.C. tj 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 10 1 (a)(44)(B) of the Act, 8 U.S.C. tj 1 10 1 (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. 
SRC 05 014 51665 
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The nonirnrnigrant petition was filed on October 20, 2004. The petitioner stated on Form 1-129 that the 
company has one employee and seeks to employ the beneficiary as its vice president customer support for a 
three-year period. In an appended declaration, dated October 19, 2004, the petitioner provided the following 
description of the beneficiary's proposed duties: 
The Beneficiary will manage the essential function for [the petitioner] of customer support. 
He will demonstrate the product to customers, research each customer's business process and 
document flow, and devise a project plan for each customer. He will utilize his technical 
expertise with software product SysPro to see how it best fits in with the specific 
requirements of the customer. The Beneficiary will further apply his business acumen and 
technical know-how to build strong trusting relationships with customers. 
Initially, [tlhe Beneficiary will manage this support function directly. He will further bear 
responsibility to oversee projects and the team of support staff. The Beneficiary has the 
authority to hire and fire personnel to come on board shortly and will function at the most 
senior level with respect to the support function, while exercising discretion over the day to 
day operations of the support function. As the Company grows, he will train and manage new 
staff to assist in implementations and providing support to customers. Once support staff 
comes on board, the Beneficiary will direct management of the support function for [the 
petitioner]. He will establish goals and policies for the support function and exercise wide 
latitude in discretionary decision making as to customer support. He will then receive general 
supervision from the President regarding support to the Company's customers. 
The petitioner indicated that the U.S. company "must shortly fill a need to add other employees who will be 
additional technical support personnel." The petitioner noted that the beneficiary would first supervise the 
customer support function "and then the actual employees, after training them." The petitioner indicated that 
its president has been responsible for both acquiring new business and addressing "other customer issues" 
which have undermined his business development efforts. The petitioner stated that the beneficiary is needed 
to "take over the technical role and work the customer support function." 
The petitioner submitted a copy of its July 2004 business plan, which further outlines the beneficiary's 
proposed role, at page 13: 
Once [the petitioner's president] has generated the new customers, [the beneficiary] will step 
in and begin the technical process of demonstrating the product to the customer and 
researching the customers [sic] business process and document flow. A very crucial aspect of 
support is understanding the client's business, and once this has been analysed [sic], a project 
plan can be implemented . . . . In the early stages of the business [the beneficiary] canwill 
[sic] do thebe [sic] responsible for customer support while at the same time mentoring and 
training new staff to help with implementations and technical support. This will enable [the 
beneficiary] to oversee projects and the team of support staff. 
SRC 05 014 5 1665 
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The petitioner submitted an organizational chart for the U.S. entity which indicates that the beneficiary and 
the president jointly supervise three sub-contractors, CSI Technology, Inc. (CSI), Catalyst Evaluation Gro,up, 
LLC, and Computer Consulting Group, Inc., as well as an administrative position. The chart indicates that the 
company is currently interviewing for a network consultant position. The petitioner also submitted an 
"independent subcontractor agreement" which indicates that the U.S. company actually serves as a 
subcontractor to CSI and provides "software application consulting services" to CSI's customers. 
The director issued a request for evidence on November 2, 2004, instructing the petitioner to submit the 
following: (1) evidence of the staffing level in the United States, to include copies of state quarterly income 
tax returns for the past year; and (2) position titles, qualifications and duties of all employees of the U.S. 
company. 
In a response dated January 20, 2005, the petitioner's president reiterated much of the information provided 
previously regarding the beneficiary's proposed role and indicated that "only now are we able to project 
employing additional workers at [the petitioner's] operations based on the volume of contracts which we have 
secured." The petitioner indicated that the proffered position "is a functional manager regarding the support 
function reporting directly to . . . the President." The petitioner further stated that the petitioner would 
ultimately hire degreed professionals who would report to the beneficiary. 
The petitioner submitted a letter, dated December 9, 2004, from its tax consultant, who confirmed that the 
petitioner did not have any employees on its payroll during the first nine months of 2004, and indicated that 
the petitioner's president was "the only individual involved in the day to day operations of the corporation." 
The tax consultant further confirmed that no state or federal quarterly reports had been filed by the U.S. 
company in 2004. 
The director denied the petition on February 8,2005, concluding that the petitioner had failed to establish that 
the beneficiary will be employed by the United States entity in a primarily managerial or executive capacity. 
The director referenced the petitioner's response to the request for evidence, and noted "it appears that there 
are no employees on staff for the beneficiary to manage or supervise as required." The director further stated 
that "the proposed plan for this business as described would probably be acceptable if the petitioner were 
applying for a 'new office."' However, the director noted that as an established business already in operation 
for over one year, the petitioner had failed to show that the business "can support the need for an L-1A 
executivelmanager for a period of 3 years." 
The petitioner filed the instant appeal on March 11, 2005. In a declaration submitted in support of the appeal, 
the petitioner emphasizes the U.S. company's need for the beneficiary to manage the customer support 
function as part of the company's long-term growth strategy. The petitioner states that it has hired an 
additional degreed employee to provide technical support services, who is to be trained and managed by the 
beneficiary. The petitioner submits a copy of an employment contract for the employee, dated January 1, 
2005, and a copy of his resume. 
The petitioner further asserts that the director erroneously concluded that the beneficiary is required to 
supervise employees in order to qualify for L-IA classification in a managerial or executive capacity. The 
SRC 05 014 51665 
Page 6 
petitioner reiterates that the beneficiary will initially manage the customer support function for the U.S. 
company and is therefore not required to supervise employees. The petitioner emphases that the definition of 
managerial capacity includes managers who manage an essential function rather than supervising employees. 
The petitioner also cites an unpublished decision in which the sole employee of a company was found to 
qualify as a "functional manager." 
The petitioner further notes that the U.S. company "employs CSI to provide it certain services," and again 
emphasizes that the company now has a direct employee who serves in a professional position and will work 
under the beneficiary's supervision. 
Finally, the petitioner asserts that the director ignored "the substantial number of contracts, invoices . . . and 
projected growth" which establish that the business can support the need for an L-1A executive/manager for a 
three-year period. 
Upon reviewing the petition and the evidence, the petitioner has not established that the beneficiary will be 
employed by the petitioner in a primarily managerial or executive capacity. As a preliminary matter, the 
AAO acknowledges that the director appears to have denied the petition solely on the basis that the 
beneficiary would not be supervising a subordinate staff, without considering the petitioner's assertion that 
the beneficiary would manage an essential function of the organization. As the AAO's review is conducted on 
a de novo basis, the AAO will herein address the petitioner's evidence and the beneficiary's eligibility as both 
a "personnel manager" and a "function manager." See Dor v. INS, 891 F.2d 997, 1002 n. 9 (2d Cir. 
1989)(noting that the AAO reviews appeals on a de novo basis). 
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. 9 214.2(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. Here, the petitioner has consistently claimed that the 
beneficiary will serve in a managerial capacity, specifically as a "function manager" responsible for the 
customer support function. 
The term "function manager" applies generally when a beneficiary does not supervise or control the work of a 
subordinate staff but instead is primarily responsible for managing an "essential function" within the 
organization. See section 101(a)(44)(A)(ii) of the Act, 8 U.S.C. 3 1 101(a)(44)(A)(ii). The term "essential 
function" is not defined by statute or regulation. If a petitioner claims that the beneficiary is managing an 
essential function, the petitioner must furnish a detailed job description describing the duties to be performed 
in managing the essential function, i.e. identify the function with specificity, articulate the essential nature of 
the function, and establish the proportion of the beneficiary's daily duties attnbuted to managing the essential 
function. See 8 C.F.R. 9 214.2(1)(3)(ii). In addition, the petitioner's description of the beneficiary's daily 
duties must demonstrate that the beneficiary manages the function rather than performs the duties related to 
the function. 
In the instant matter, based on a review of the petitioner's description of the beneficiary's duties and a review 
of the totality of the record, it is evident that the beneficiary would be required to personally provide customer 
SRC 05 014 51665 
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support services to the petitioner's clients, and would also be required to work as a subcontracted technical 
consultant to other companies' customers pursuant to the petitioner's independent subcontractor agreements. 
In other words, the beneficiary would be primarily performing the duties related to the customer support 
function, rather than managing the function. 
For example, the petitioner states that the beneficiary will demonstrate products to customers, research 
customers' business processes and document flow, and devise project plans utilizing his technical expertise 
with the software products sold and supported by the company. The petitioner repeatedly emphasized that the 
beneficiary will initially perform this support function directly. In addition, the petitioner has provided 
evidence that the company currently earns a substantial portion of its revenue by providing sales and 
implementation services to at least two other companies, serving as subcontracted independent technical 
consultants on those companies' projects. As the petitioner has also emphasized its desire to have its president 
and sole employee devote more of his time to sales and marketing activities rather than technical work, it is 
reasonable to assume that the beneficiary would also provide consulting services pursuant to the terms of the 
submitted subcontractor agreements. The petitioner has not explained how any of these duties could be 
considered managerial in nature, pursuant to the statutory definition at section 10 1 (a)(44)(A) of the Act. 
Based on the petitioner's job description for the beneficiary, he will be primarily providing the services of the 
organization, rather than managing a function of the organization. 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 
Intn 'I., 19 I&N Dec. 593, 604 (Comm. 1988). 
The definitions of executive and managerial capacity have two parts. First, the petitioner must show that the 
beneficiary performs the high-level responsibilities that are specified in the definitions. Second, the petitioner 
must prove that the beneficiary primarily performs these specified responsibilities and does not spend a 
majority of his or her time on day-to-day functions. Champion World, Inc. v. INS, 940 F.2d 1533 (Table), 
1991 WL 144470 (9th Cir. July 30, 1991). 
While performing non-qualifying tasks necessary to produce a product or service will not automatically 
disqualify the beneficiary as long as those tasks are not the majority of the beneficiary's duties, the petitioner 
still has the burden of establishing that the beneficiary is "primarily" performing managerial or executive 
duties. Section 101(a)(44) of the Act. Whether the beneficiary is an "activity" or "function" manager turns in 
part on whether the petitioner has sustained its burden of proving that his duties are "primarily" managerial. 
As discussed above, the record does not demonstrate that the beneficiary would initially perform any 
managerial duties, much less be engaged in primarily managerial duties. Rather, the beneficiary and the 
president will be the only employees providing the day-to-day services of the petitioner's service-oriented 
business. The fact that the beneficiary would personally undertake most or all of the petitioner's considerable 
customer support activities does not elevate his position to that of a function manager. 
The AAO acknowledges the petitioner's assertions that the beneficiary will "bear responsibility to oversee 
projects and the team of support staff'; have authority to hire and fire personnel "to come on board shortly"; 
will "function at the senior most level with respect to the support function, while exercising discretion over 
SRC 05 014 51665 
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the day to day operation of the support function"; "will train and manage new staff'; and "will establish goals 
and policies for the support function and exercise wide latitude in discretionary decision making as to 
customer support." However, the majority of these duties relate to the training and management of staff who 
have not yet been hired. The petitioner must establish eligibility at the time of filing the nonimmigrant visa 
petition. 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 Matter of Michelin Tire Corp., 17 I&N Dec. 248 
(Reg. Comm. 1978); Matter of Katigbak, 14 I&N Dec. 45,49 (Comm. 1971). 
Therefore, while the record indicates that the beneficiary will exercise the appropriate level of managerial 
authority over customer support matters for the U.S. company, this fact alone is insufficient to overcome the 
fact that his actual duties for the foreseeable future would be directly providing consulting services to other 
companies and performing customer implementation and support services of the petitioning organization. 
The 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), affd, 905 F.2d 41 (2d. Cir. 1990). Even though the enterprise is in a 
preliminary stage of organizational development, the petitioner is not relieved from meeting the statutory 
requirement that the beneficiary perform primarily managerial duties as of the date the petition is approved. 
In the case of a function manager, the AAO recognizes that other employees cany out the functions of the 
organization, even though those employees may not be directly under the function manager's supervision. It 
is the petitioner's obligation to establish that the day-to-day non-managerial tasks of the function managed are 
performed by someone other than the beneficiary. The addition of the concept of a "function manager" by 
the Immigration Act of 1990 eliminated the requirement that a beneficiary must directly supervise subordinate 
employees to establish managerial capacity. Despite the changes made by the Immigration Act of 1990, the 
statute continues to require that an individual "primarily" perform managerial or executive duties in order to 
qualify as a managerial or executive employee under the Act. The word "primarily" is defined as "at first," 
"principally," or "chiefly." Webster's II New College Dictionary 877 (2001). 
 Where an individual is 
"principally" or "chiefly" performing the tasks necessary to produce a product or to provide a service or other 
non-managerial, non-executive duties, that individual cannot also "principally" or "chiefly" perform 
managerial or executive duties. 
Moreover, federal courts continue to give deference to CIS'S interpretation of the Immigration Act of 1990 
and the concept of "function manager," especially when considering individuals who primarily conduct the 
business of an organization or when the petitioner fails to establish what proportion of an employee's duties 
might be managerial as opposed to operational. See Boyang Ltd. v. INS, 67 F.3d 305(Table), 1995 WL 
576839 at *5 (9th Cir. 1995 (unpublished)(citing to Matter of Church Scientology Int'l and finding an 
employee who primarily performs operational tasks is not a managerial or executive employee); see also, 
IKEA US, Inc. v. U.S. Dept. of Justice, 48 F. Supp. 2d 22, 24 (D.D.C. 1999); Republic of Transkei v. INS, 923 
F.2d 175, 177 (D.C.Cir. 1991). For the reasons discussed above, the beneficiary does not qualify as a 
"function manager," as contemplated by section 101 (a)(44)(A) of the Act. 
SRC 05 014 51665 
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On appeal, the petitioner submits evidence that the U.S. company has hired one employee on a contract basis 
as of January 2005. The petitioner indicates that this employee will provide technical support services and 
would be trained and managed by the beneficiary. The petitioner further states that the petitioner "employs 
CSI to provide it certain services in addition to [its] direct employee." The petitioner suggests that the 
beneficiary would accordingly "fill a direct personnel management function." The petitioner's assertions are 
not persuasive. With respect to the petitioner's new employee, the AAO notes that he was hired subsequent 
to the filing of the petition. Again, 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 ofMichelin Tire Corp., supra. Further, a review 
of the employment contract and the new employee's resume suggest that he would be engaged in sales, rather 
than customer or technical support functions. The AAO notes that the employee's sole source of 
remuneration would be a percentage of gross profit generated through sales and sales leads. Further, the 
employee's resume indicates that he is a specialist in the business development field with no technical 
background in software support services. For these reasons, the AAO will not consider this new employee, 
whose actual duties have not been defined, a subordinate of the beneficiary for the purposes of determining 
whether the beneficiary would serve in a managerial capacity. 
In addition, the petitioner's assertion that CSI provides services to the U.S. company, and suggestion that such 
services would be overseen by the beneficiary, is not supported by evidence in the record. To the contrary, the 
evidence submitted shows that the petitioner serves as a sub-contractor to CSI and provides technical 
consulting services to CSI customers. The petitioner has not submitted evidence that it currently utilizes the 
services of independent contractors or direct employees to perform the day-to-day duties of its customer 
support function. Going on record without supporting documentary evidence is not sufficient for purposes of 
meeting the burden of proof in these proceedings. Matter of SofJici, 22 I&N Dec. 158, 165 (Comm. 1998) 
(citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm. 1972)). Rather, the petitioner 
indicates that these duties are currently performed by its president, and that they would be directly performed 
by the beneficiary upon approval of the petition. 
Counsel further refers to an unpublished decision in which the AAO determined that the beneficiary met the 
requirements of serving in a managerial and executive capacity for L-1 classification even though he was the 
sole employee. Counsel has furnished no evidence to establish that the facts of the instant petition are 
analogous to those in the unpublished decision. While 8 C.F.R. 3 103.3(c) provides that AAO precedent 
decisions are binding on all CIS employees in the administration of the Act, unpublished decisions are not 
similarly binding. 
In sum, the record does not establish that a majority of the beneficiary's duties will be primarily managing an 
essential function of the petitioning organization. The record indicates that a preponderance of the beneficiary's 
duties will, at least initially, be operational duties necessary to provide support to the petitioner's customers and to 
fulfill its obligations to provide consulting services under the terms of its subcontractor agreements with other 
companies. Although the petitioner claims that the beneficiary's department will be staffed in the future, the 
petitioner must establish eligibility at the time of filing the nonimmigrant visa petition. 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 Matter of Michelin Tire Corp., 17 I&N Dec. 248 (Reg. Comm. 1978); 
SRC 05 014 5 1665 
Page 10 
Matter of Katigbak, 14 I&N Dec. 45, 49 (Comm. 1971). Based on the evidence furnished, it cannot be found 
that the beneficiary will be employed primarily in a qualifying managerial or executive capacity. For ths reason, 
the appeal will be dismissed. 
In visa petition proceedings, the burden of proving eligbility for the benefit sought remains entirely with the 
petitioner. Section 291 of the Act, 8 U.S.C. 4 1361. Here, the petitioner has not sustained that burden. 
ORDER: The appeal is dismissed.