dismissed L-1A Case: Software

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preventclearlyun~ted
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PUBUCCoP'l
U.S. Department of Homeland Security
20 Mass. Ave., N.W., Rrn. 3000
Washington, DC 20529
u.S. Citizenship
and Immigration
Services
FILE: LIN 02 151 53459 Office: NEBRASKA SERVICE CENTER Date: JUN 20 2007
INRE: Petitioner:
Beneficiary:
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(15)(L) of the Immigration
and Nationality Act, 8 U.S.C. § 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.
(/A;47/~
I Robert P. e,Chief
Administrative Appeals Office
www.uscis.gov
LIN 02 151 53459
Page 2
DISCUSSION: The Director, Nebraska 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 the instant petition to employ the beneficiary as an L-1A nonimmigrant intracompany
transferee pursuant to section 101(a)(l5)(L) of the Immigration and Nationality Act (the Act), 8 U.S.C.
§ 1101(a)(l5)(L). The petitioner is a corporation organized under the laws of the State of Delaware that is
engaged in the distribution of software developed by its purported Australian affiliate. The petitioner seeks to
employ the beneficiary as its business development manager} for a three-year term.
The director denied the petition concluding that the petitioner had not demonstrated that the beneficiary
would be employed by the United States entity in a primarily managerial or executive capacity.
On appeal, counsel for the petitioner contends that United States Citizenship and Immigration Services
(USCIS) erred in concluding that the beneficiary would not be employed by the petitioner in both a primarily
managerial and executive capacity. Counsel submits a brief in support of the appeal.
To establish L-1 eligibility, the petitioner must meet the criteria outlined in section 101(a)(l5)(L) of the
Immigration and Nationality Act (the Act), 8 U.S.C. § 1101(a)(l5)(L). Specifically, within three years
preceding the beneficiary's application for admission into the United States, 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. In addition, the beneficiary must seek to enter the United States
temporarily to continue rendering his or her services to the same employer or a subsidiary or affiliate thereof
in a managerial, executive, or specialized knowledge capacity.
The regulation at 8 C.F.R. § 214.2(1)(3) states that an individual petition filed on Form 1-129 shall be
accompanied by:
(i) Evidence that the petitioner and the organization which employed or will employ the
alien are qualifying organizations as defined in paragraph (1)(l)(ii)(G) of this section.
(ii) Evidence that the alien will be employed in an executive, managerial, or specialized
knowledge capacity, including a detailed description of the services to be performed.
(iii) Evidence that the alien has at least one continuous year of full time employment
abroad with a qualifying organization within the three years preceding the filing of
the petition.
(iv) Evidence that the alien's prior year of employment abroad was in a position that was
managerial, executive or involved specialized knowledge and that the alien's prior
education, training, and employment qualifies 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.
} In subsequent correspondence from the petitioner and counsel, the beneficiary's position is referred to as
"Vice President Business Development, North America Operations."
LIN 02 151 53459
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The issue in this proceeding is whether the beneficiary would 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. § 1101(a)(44)(A), provides:
The term "managerial capacity" means 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) Has the authority to hire and fire or recommend those as well as other personnel actions
(such as promotion and leave authorization) if another employee or other employees are directly
supervised; if no other employee is directly supervised, functions at a senior level within the
organizational hierarchy or with respect to the function managed; and
(iv) Exercises discretion over the day-to-day operations of the activity or function for which
the employee has authority. A first-line supervisor is not considered to be acting in a managerial
capacity merely by virtue of the supervisor's supervisory duties unless the employees supervised
are professional.
Section 101(a)(44)(B) of the Act, 8 U.S.C. § 1101(a)(44)(B), provides:
The term "executive capacity" means an assignment within an organization in which the employee
primarily-
(i) Directs the management of the organization or a major component or function of the
organization;
(ii) Establishes the goals and policies of the organization, component, or function;
(iii) Exercises wide latitude in discretionary decision-making; and
(iv) Receives only general supervision or direction from higher level executives, the board of
directors, or stockholders of the organization.
The petitioner filed the Form 1-129 on April 4, 2002. In an attached letter, dated March 22, 2002, the
petitioner provided the following description for the beneficiary's proposed employment in the United States:
As Vice President Business Development, North American Operations, [the beneficiary] will direct
all aspects of the essential, corporate functions associated with business development. The business
development function remains essential to the continued success of [the petitioning entity] because
LIN 02 151 53459
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its business model and marketing strategy in the United States is based on establishing partnerships
with companies that seek to distribute its products and services in their local regions or industries.
[The petitioner's] continued success in the North American market is directly related to the ability
of the Vice President Business Development, North American Operations to direct and coordinate
[the petitioner's} business development activities, including managing its existing corporate partner
relationships as well as overseeing the search for new opportunities to establish similar types of
corporate partner relationships.
Reporting directly to the Chief Executive Officer of [the foreign entity}, the duties of the Vice
President Business Development, North American Operations include the following:
• Determining, evaluating and directing the development of new distribution
channels (vertical markets) for [the petitioner's] existing and forthcoming software
products and services;
• Directing and coordinating [the petitioner's] search for new corporate partner
relationships to attend to lateral markets in related sectors, such as Discrete
Manufacturing, General Process Industry, Mining, Mineral Resources, Energy
Generation and Transmission, Gas, Water, Sewage, Telephone, Transportation,
Building, and Government and Roads;
• Exercising full authority and control over [the petitioner's} $400,000 operating
budget, without prior approval from [the foreign entity];
• Exercising wide latitude in discretionary decision-making in preparation of bids
and contracts, resolving disputes with customers or suppliers, and directing
company branding functions through memberships and contacts in industry
organizations and associations that further [the petitioner's] interests;
• Planning and directing [the petitioner's] corporate partner relationship policies and
strategies including negotiation, interpretation, and administration of contracts;
• Developing and directing annual sales revenue forecasts and updates for the North
American market;
• Reviewing accounting functions to ensure all allowable charges are processed in [a]
timely and accurate manner and consistent with [the petitioner's] policy;
• Managing liability mitigation function by identifying and quantifying potential
contract liabilities and formulating methods of mitigating exposure;
• Representing [the foreign entity] and [the petitioner] at international conferences
and coordinating marketing and development strategies in response to such
contacts;
• Establishing and developing relationships with United States-based entities
involved with products and services that complement [the petitioner's] products and
services;
• Coordinating implementation of local marketing support to [the petitioner's]
existing North American distributors;
• Providing development liaison between [the foreign entity] and [the petitioner];
• Providing direction and guidance to key managerial and executive level personnel
as well as providing indirect supervision of technical professionals working with
[the petitioner's] proprietary software within North American partner companies;
LIN 02 151 53459
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• Providing direction, coordination, and guidance to managerial level professionals at
[the foreign entity] regarding product development, business development, and
customer support in response to existing and new corporate partners' needs;
• Evaluating, negotiating, and approving corporate partner relationships within the
North American region;
• Directing management and evaluating effectiveness of corporate partner
relationships in North America;
• Directing and guiding executive/managerial level professionals at corporate partner
companies in end-user/client training and support;
• Reviewing, advising, and directing software development/customization activities
at corporate partners in North America in concert with Software Development
Manager and software development professionals in [the foreign entity];
• Directing, hiring, and firing managerial and professional staff upon expansion of
corporate partner relationships and determining staffing needs and possible transfer
of professional staff from [the foreign entity] for [the] U.S. office; and
• Providing guidance, coordination and direction enhancing product development,
research and development activities, and consultation/training services with
current and potential corporate partners in North America.
(Emphasis in original).
In addition to the beneficiary's proposed employment, the petitioner explained its purported use of corporate
partnerships with two United States companies, which the petitioner claimed would distribute its "products
and services within a particular region or industry," and "provide client end-users with service and support of
customized [ ] applications." In particular, the petitioner referenced the two United States companies, Brooks
Automation, Inc. and SMI International, as acting as United States distributors for the foreign entity's
programs, stating that the companies' staff "is responsible for implementation, customer service, and support
with assistance from technical staff in [the foreign entity], under the guidance of the Vice President Business
Development, North American Operations." The petitioner referenced two appended agreements as evidence
of its purported corporate partnership relationships with Brooks Automation, Inc. and SMI International. The
AAO notes, however, that the record does not contain the referenced agreements. Rather, the appended
exhibits are comprised of: (1) an incomplete March 15, 1997 Software Distribution Support Agreement
between the foreign entity and the United States company Midas Software Incorporated; (2) two separate
statements identifying Brooks Automation and SMI International as business partners of the petitioner; (3) an
undated Software Distribution Agreement, in which the petitioner was identified as the only party to the
agreement; and (4) an incomplete July 1, 2000 Software Distribution Agreement between the petitioner and
Space Mark, Inc., which was identified as the distributor.
The petitioner also provided an organizational chart of the United States company on which the beneficiary
was identified as overseeing three positions two customer support technicians and a
development/programmer - that were not yet occupied. The chart depicted the beneficiary as also overseeing
the company's "client/partner" and the clients' programmers.
The director issued a request for evidence on April 8, 2002, noting that at the time of the request the
petitioning entity had been operating for approximately four years, yet it did not appear to have "grown to a
point" to support the beneficiary in a primarily managerial or executive capacity. The director stated that it
LIN 02 151 53459
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appeared that the beneficiary would perform the sales and marketing functions of the United States
organization. The director outlined the statutory definitions of "managerial capacity" and "executive
capacity ," instructing the petitioner to submit a statement from an authorized official establishing that the
beneficiary's employment would satisfy each of the four requirements of either capacity. The director noted
that the statement should include the beneficiary's dates of employment , job title, specific job duties,
employees supervised, and, if applicable, the level of authority held by the beneficiary's supervisor. The
director further requested an organizational chart of the petitioning entity, and copies of the petitioner's 2001
federal quarterly tax returns, Internal Revenue Service (IRS) Forms W-2, and State Unemployment
Compensation Report Form .
Counsel for the petitioner responded in a letter dated June 28, 2002. In her letter, counsel stated that the
beneficiary would not "personally market the [petitioner's] product or carry out the duties which he manages,"
explaining that instead "the performance of those duties is executed by other individuals , managed by [the
beneficiary], and employed by entities with which [the petitioner] has entered into strategic partnerships."
Counsel stated that the beneficiary would direct two managers , who would in tum manage approximately 6
through 8 technical, professional, and sales employees. Counsel noted that the beneficiary also would
continue to direct three managers in the foreign entity , and would continue to manage "those that produce the
product in Australia, as well as assume the responsibility for managing the functions of its strategic partners
in the United States."
In an appended undated letter, the petitioner clarified that it does not currently employ any workers , "as there
is no one based in the U.S. to supervise such staff." The petitioner stressed its ability to support the
beneficiary in a primarily managerial or executive capacity, noting that its gross receipts in the year 2000
were over $400 ,000, and increased to $529,021 in 2001. The petitioner stated:
In the contemplated position , [the beneficiary] will direct [the petitioner's] efforts in the
United States, determining our response to customer demands, by working with our
strategic partners to direct our product development as well as directing managerial
professionals at [the foreign entity] in their responses to the North American market.
Further , [the foreign entity] will depend on [the beneficiary] to use his knowledge, expertise
and discretion to establish the goals and policies of the US entity. As noted in our
previous submission, [the beneficiary's] authority is second only to the CEO of[the foreign
entity); he has direct supervisory control over managerial-level directors in [the foreign
entity] , and once these professionals are in place , [the beneficiary] would have direct
control over managerial-level employees in the United States. As previously indicated , the
majority of those positions contemplated are professional, as our current arrangements with
our landlord and strategic partner, SMI International, provide clerical and administrative
support .
* * *
The contemplated position is not a direct sales and marketing function: in fact , as
previously indicated, [the beneficiary] will not be involved in direct sales or marketing of
[the petitioner's] product. Instead, sales and marketing of [the petitioner's] proprietary
software are conducted by our strategic partners. Nothing in the detailed description of
LIN 02 151 53459
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[the beneficiary's] contemplated duties can be construed as direct sales or day-to-day
marketing activities.
While part of [the beneficiary's] function is to direct, respond to and develop relationships
with strategic corporate partner/clients, this cannot be equated with direct sales and
marketing. As previously stated, [the beneficiary] will use his knowledge and expertise of
both the market and the product to:
1. Direct [the petitioner's] strategic expansion;
2. Direct [the petitioner's] response to strategic partners' needs;
3. Determine future development of the product to respond to unique market
forces in North America;
4. Direct the search for future partners in light of [the petitioner's] long-term goals
[sic] North America;
5. Hire, fire and establish the contemplated professional staff for the u.s. office.
(Emphasis in original).
The petitioner also submitted the same list of job duties as that provided with its initial filing. The petitioner
further provided a copy of a June 27, 2002 letter from the president and chief executive officer of SMI
International, attesting to its agreement to provide "workspace, clerical support and limited technical support
to [the petitioner] when its employees are present in the U.S."
Both counsel and the petitioner requested that in the event the beneficiary is not approved for the requested
classification, than, in the alternative, the director consider his eligibility as an L-IB specialized knowledge
worker. The AAO notes that when responding to a request for evidence, a petitioner cannot offer a new
position to the beneficiary, or materially change a position's title, its level of authority within the
organizational hierarchy, or its associated job responsibilities. The petitioner must establish that the position
offered to the beneficiary when the petition was filed merits classification as a managerial or executive
position. Matter of Michelin Tire Corp., 17 I&N Dec. 248, 249 (Reg. Comm. 1978). If significant changes
are made to the initial request for approval, the petitioner must file a new petition rather than seek approval of
a petition that is not supported by the facts in the record. The statutory definition of "specialized knowledge"
encompasses criteria considerably different from the statutory qualifications of a manager or executive, thus
resulting in a significant modification in the employment capacity originally proposed for the beneficiary.
Accordingly, the petitioner's request to classify the beneficiary as an L-IB specialized knowledge worker was
properly disregarded by the director, and will not be considered herein.
In a July 11, 2002 decision, the director concluded that the petitioner had not demonstrated that the
beneficiary would be employed by the United States entity in a primarily managerial or executive capacity.
The director outlined a portion of the beneficiary's job description, and noted that over its four years of
operation, the petitioner had only employed one individual, the company's chief executive officer, who will
return to Australia upon the approval of the beneficiary's L-l A nonimmigrant visa petition. The director
stated that the petitioner had not established that the beneficiary would supervise a subordinate professional,
managerial, or supervisory staff, and concluded that the beneficiary "will be performing the day to day duties
of the entity, rather than manage or direct the organization." The director further concluded that the petitioner
had not demonstrated that the beneficiary would be managing an essential function of the organization. The
LIN 02 151 53459
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director also observed that the petitioner had not demonstrated that it had secured premises to house its United
States office. Consequently, the director denied the petition.
Counsel for the petitioner filed an appeal August 9, 2002, stating that the director had erroneously concluded
that the beneficiary would not be employed in a primarily managerial or executive capacity. In an October
17, 2002 appellate brief, counsel emphasizes the petitioner's purported corporate partnerships with Brooks
Automation and SMI International, claiming that they would operate on behalf of the petitioner under the
guidance of the beneficiary. Counsel stresses the beneficiary's role in "direct[ing] all aspects of the essential,
corporate functions associated with [the petitioner's] business development," explaining that his
responsibilities would include "managing its existing corporate partner relationships as well as overseeing the
search for new opportunities to establish similar types of corporate partner relationships." Counsel states: "As
Vice President, Business Development, North American Operations, the Beneficiary serves as a critically
important executive and manager, overseeing all functional aspects of the organization's operations for the
North American market, where he exercises broad discretion over the day-to-day activities under his control
detailed above." Counsel again provides the above-outlined proposed job duties associated with the
beneficiary's position, claiming that the job description demonstrates that the beneficiary would: manage
professional-level subordinates employed by the petitioning entity, as well as by its corporate partners;
manage an essential function of the petitioning entity; possess the authority to make personnel decisions; and,
"exercise[] broad discretion over all aspects of the day-to-day operations under his contro1."
Counsel also claims that the beneficiary would be employed in a primarily executive capacity, stating that the
beneficiary's proposed "executive" job duties would include:
[S]ole responsibility for [the foreign entity's] expansion into the North American market;
primary control and discretion over relationships with strategic partners (including
direction, management and negotiation of those relationships); sole responsibility for
establishing priorities for the North American market; control of the entity's $400,000.00
budget; reporting and responsible only to the CEO of [the foreign entity], and with direct
control and influence over all other functions of [the foreign entity] in their relations to the
U.S. market.
Counsel contends that the director erred in concluding that the petitioner had not secured premises in the
United States from which to operate its business. Counsel calls attention to the petitioner's agreement with
SMI International for "[office] space and support staff," which she claims is sufficient for the petitioner to
conduct its business.
Counsel further claims that the director's finding that the petitioning entity had not grown to a point to support
the beneficiary in a primarily managerial or executive capacity "ignores the clear evidence that the Petitioner
had greatly increased its activities with its strategic partners, and that the Beneficiary could only effect the
day-to-day operations of the U.S entity through remote professionals and professionals within its strategic
partners' organizations."
Lastly, counsel notes that USCIS previously approved two L-1A nonimmigrant visa petitions filed by the
petitioner for the benefit of the beneficiary's predecessor in the United States office, who, counsel claims,
performed tasks "substantially similar" to those proposed for the beneficiary's position. Counsel contends
that, as a result, the present petition should be approved on the basis that the underlying facts have not
LIN 02 151 53459
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changed, and there was not shown to be gross error on the part of the director in the prior L-1 adjudications.
The AAO notes that USCIS has not previously approved an L-1A nonimmigrant petition filed by the
petitioner on behalf of the beneficiary. As a result, counsel's claim that the director "erred in failing to accord
the appropriate weight to the prior adjudication," in which the petitioner's present chief executive officer, and
not the beneficiary, was approved as a nonimmigrant intracompany transferee, is misplaced. Each
nonimmigrant petition is a separate record of proceeding with a separate burden of proof; each petition must
stand on its own individual merits. See 8 C.F.R. § 103.8(d); 8 C.F.R. § 103.2(b)(l6)(ii). It is unrealistic for
counsel to suggest that USCIS is bound to the approval of a separate petition approved on behalf of a different
beneficiary. The only prior petition filed by the petitioner on behalf of the instant beneficiary was denied.
(LIN 01 249 53903) Regardless, the AAO is not required to approve applications or petitions where
eligibility has not been demonstrated, merely because of prior approvals that may have been erroneous. See,
e.g. Matter ofChurch Scientology International, 19 I&N Dec. 593, 597 (Comm. 1988).
Upon review, the petitioner had not established that the beneficiary would be employed by the United States
entity in a primarily managerial or executive capacity.
When examining the executive or managerial capacity of the beneficiary, the AAO will look first to the
petitioner's description of the job duties. See 8 C.F.R. § 214.2(l)(3)(ii).
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).
With respect to the petitioner's claim of employing the beneficiary as a manager of its business development
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. § 1101(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 written job offer that clearly describes the duties to be
performed, i.e. identify the function with specificity, articulate the essential nature of the function, and
establish the proportion of the beneficiary's daily duties attributed to managing the essential function. 8
C.F.R. § 214.2(l)(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.
The AAO recognizes the lengthy list of job duties submitted for the beneficiary's employment as Vice
President Business Development, North American Operations. Counsel relies on this outline, as well as the
petitioner's purported relationship with corporate United States "partners," to demonstrate the beneficiary's
proposed employment as a manager of the petitioner's business development function. Several of the listed
job duties, however, suggest that the beneficiary would not be primarily managing an essential function of the
petitioning entity, but rather would be personally responsible for performing at least a portion of the non­
qualifying duties specifically related to the development of the petitioner's business in the United States. In
particular, the beneficiary's purported managerial authority over the company's business development
function is questionable considering his responsibilities of "search[ing] for new corporate partners,"
"resolving disputes with customers and suppliers," negotiating, interpreting, and administering contracts with
LIN 02 151 53459
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the petitioner's corporate partners, and "[c]oordinating [the] implementation of local marketing support" to
North American distributors. As the petitioner has not offered an allocation of the amount of time the
beneficiary would devote to the listed job duties, the AAO cannot determine the amount of time devoted to
the performance of these non-managerial and non-executive tasks by the beneficiary, or what proportion of
the beneficiary's duties would be managerial functions.
The AAO also points to the petitioner's March 22, 2002 letter, in which the petitioner emphasized its need to
develop partnerships with United States companies that would market and distribute its products regionally,
and stated that the beneficiary would direct and coordinate the petitioner's business development activities,
"including managing its existing corporate partner relationships as well as overseeing the search for new
opportunities to establish similar types of corporate partner relationships." As conceded by the petitioner, its
staff on the date of filing was comprised of the company's chief executive officer, who would be replaced by
the beneficiary upon approval of the present L-1A nonimmigrant visa. As a result, the beneficiary cannot be
deemed as "overseeing the search for new opportunities," as the petitioner does not employ any subordinate
workers who would be responsible for locating "new opportunities. " (emphasis added). If USCIS fails to
believe that a fact stated in the petition is true, USCIS may reject that fact. See e.g. Anetekhai v. I.N.S., 876
F.2d 1218, 1220 (5th Cir.1989); Lu-Ann Bakery Shop, Inc. v. Nelson, 705 F. Supp. 7, 10 (D.D.C.1988);
Systronics Corp. v. INS, 153 F. Supp. 2d 7, 15 (D.D.C. 2001). The AAO further notes that the beneficiary's
proposed subordinate staff is comprised of two customer support technicians and a development programmer,
none of which appear to occupy a position that would relieve the beneficiary from the responsibility of
locating new corporate partners, or, in other words, from personally developing the company's business in the
United States.
Also, as the petitioner has not presented signed agreements between the petitioner and Brooks Automation,
Inc. and SMI International, it is questionable whether these two companies can be considered corporate
partners managed by the beneficiary. While the record contains invoices for services rendered by SMI
International to the petitioner on April 2, 2002, and December 2001 through February 2002 invoices from
Brooks Automation, Inc. for royalties due from the petitioner, this limited evidence is not sufficient to
corroborate the petitioner's claim that the beneficiary would possess managerial authority over the companies'
employees. Even if the unsigned agreements, which, incidentally, do not identify either Brooks Automation,
Inc. or SMI International as a party to the agreement, were considered as evidence of an agreement between
the two companies and the petitioner, clause 16 states that the petitioner would provide only "general advice,
training, [and] guidance" with respect to its software to the distributor. Again, the language of the agreement
does not substantiate the petitioner's claim that the beneficiary would manage the employees of these
unrelated outside companies. Going on record without supporting documentary evidence is not sufficient for
purposes of meeting the burden of proof in these proceedings. Matter of Soffici, 22 I&N Dec. 158, 165
(Comm. 1998) (citing Matter ofTreasure Craft of California, 14 I&N Dec. 190 (Reg. Comm. 1972)).
Considering the inconsistencies with respect to the petitioner's staff and corporate partners, in conjunction
with the beneficiary's above-named non-qualifying tasks, it is questionable whether the beneficiary would be
managing the business development function, or rather, personally developing the petitioner's business in the
United States. 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 ofChurch Scientology Int '1., 19 I&N Dec. 593, 604 (Comm. 1988).
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The AAO notes that the unexplained inconsistencies discussed above also call into question the veracity of
the petitioner's claims with respect to the beneficiary's responsibilities of: directing "key managerial and
executive level personnel" and "technical professionals" at partner companies; "[r]eviewing, advising, and
directing software development/customization activities at corporate partners in North America"; and hiring a
managerial and professional staff, particularly when the petitioner has not accounted for any subordinate
managers on its proposed organizational chart. It is incumbent upon the petitioner to resolve any
inconsistencies in the record by independent objective evidence. Any attempt to explain or reconcile such
inconsistencies will not suffice unless the petitioner submits competent objective evidence pointing to where
the truth lies. Matter of Ho, 19 1&N Dec. 582, 591-92 (B1A 1988). Doubt cast on any aspect of the
petitioner's proof may undermine the reliability and sufficiency of the remaining evidence offered in support
of the visa petition. Id. at 591.
Taken as a whole, the record does not demonstrate that at the time of filing the beneficiary would be
employed by the United States entity in a primarily managerial or executive capacity. The AAO emphasizes
the petitioner's obligation to demonstrate the beneficiary's eligibility for the requested classification at the
time of filing the nonimmigrant visa petition. A visa petition may not be approved at a future date after the
petitioner or beneficiary becomes eligible under a new set of facts. Matter of Michelin Tire Corp., 17 1&N
Dec. at 249. The AAO notes that the petitioner is not barred from filing another nonimmigrant visa petition
requesting classification of the beneficiary as an L-IA nonimmigrant intracompany transferee.
Based on the foregoing discussion, the petitioner has not established the beneficiary's proposed employment
in a primarily managerial or executive capacity. Accordingly, the appeal will be dismissed.
Beyond the decision of the director, an additional issue is whether the petitioner demonstrated the existence of
a qualifying relationship between the foreign and United States entities.
The petitioner noted on the Form 1-129 and in its March 22, 2002 letter that the United States organization is
a wholly owned subsidiary of the foreign entity located in Australia. In an appended Certificate of Corporate
Relationship, the petitioner's chief executive officer attested to the claimed parent-subsidiary relationship.
Furthermore, the foreign entity's June 30, 2001 balance sheet identifies an existing interest in the petitioning
entity. The AAO notes, however, that the petitioner's years 1999 and 2000 federal income tax returns identify
Kevin Ramsey, the petitioner's chief executive officer, as owning 100 percent of the United States company's
stock. The petitioner did not submit evidence of the ownership of the foreign entity. Based on the present
record, it is not clear whether the petitioner is claiming to enjoy an affiliate relationship with the foreign
entity, or a parent-subsidiary relationship. Absent additional evidence resolving these inconsistencies, the
AAO cannot determine whether a qualifying relationship existed between the United States and foreign
entities on the filing date. It is incumbent upon the petitioner to resolve any inconsistencies in the record by
independent objective evidence. Any attempt to explain or reconcile such inconsistencies will not suffice
unless the petitioner submits competent objective evidence pointing to where the truth lies. Matter ofHo, 19
1&N Dec. at 591-92. For this additional reason, the petition will be denied.
An application or petition that fails to comply with the technical requirements of the law may be denied by
the AAO even if the Service Center does not identify all of the grounds for denial in the initial decision. See
Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 2001), affd. 345 F.3d 683
(9th Cir. 2003); see also Dor v. INS, 891 F.2d 997, 1002 n. 9 (2d Cir. 1989)(noting that the AAO reviews
appeals on a de novo basis).
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The petition will be denied for the above stated reasons , with each considered as an independent and
alternative basis for denial. In visa petition proceedings , the burden of proving eligibility for the benefit
sought remains entirely with the petitioner. Section 291 of the Act, 8 U.S.C. § 1361. Here , that burden has
not been met.
ORDER: The appeal is dismissed.