dismissed L-1A Case: Tattooing Products

U.S. Department of Homeland Security 
20 Massachusetts Ave., N.W., Rm. A3042 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
Services 
FILE: SRC 03 141 533 13 Office: TEXAS SERVICE CENTER Date: JU)( 9 9 2005 
PETFION: Petition for a Nonirnrnigrant Worker Pursuant to Section 101(a)(15)(L) of the Immigration 
and Nationality Act, 8 U.S.C. 5 1 101(a)(15)(L) 
ON BEHALF OF PETITIONER: 
SELF-REPRESENTED 
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. 
[ w Robert P. Wiernann. ]rector 
b 
Administrative Appeals Office 
SRC 03 141 53313 
Page 2 
DISCUSSION: The nonimrnigrant visa petition was denied by the Director, Texas Service Center. The 
matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. 
According to the evidence contained in the record, the petitioner was established November 12, 1997, and - 
claims to be enga~ed in the sales and marketing of tattooing products. The petitioner claims to be a - - - 
subsidiary of, located in France. The petitioner's new office petition was initially approved 
allowing the beneficiary to enter the United States in an L-1A classification on March 18, 1998. The - 
petitioner subsequently received two extensions allowing the beneficiary to remain in the United States in L- 
1A status. The petitioner now seeks another extension of its authority to employ the beneficiary temporarily 
in the United States as its president for two years, at an annual salary of $46,500.00. The director determined 
that the petitioner had failed to submit sufficient evidence to demonstrate that the beneficiary had been or 
would be employed by the U.S. entity in a primarily managerial or executive capacity. 
On appeal, the petitioner disagrees with the director's determination and asserts that the beneficiary's duties 
have been and will continue to be managerial or executive in nature. 
To establish L-1 eligibility under section lOl(a)(15)(L) of the Immigration and Nationality Act (the Act), 
8 U.S.C. 8 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. § 214.2(1)(3) states that an individual petition filed on Form 1-129 shall be 
accompanied by: 
(i) Evidence that the petitioner and the organization which employed or will employ the 
alien are qualifying organizations as defined in paragraph (l)(l)(ii)(G) of this section. 
(ii) Evidence that the alien will be employed in an executive, managerial, or specialized 
knowledge capacity, including a detailed description of the services to be performed. 
(iii) Evidence that the alien has at least one continuous year of full-time employment 
abroad with a qualifying organization with the three years preceding the filing of the 
petition. 
SRC 03 141 53313 
Page 3 
(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 serves 
in the United States; however, the work in the United States need not be the same 
work which the alien performed abroad. 
The issue in this proceeding is whether the petitioner has submitted sufficient evidence to establish that the 
beneficiary has been and will be employed by the U.S. entity in a primarily managerial or executive capacity. 
Section lOl(a)(44)(A) of the Act, 8 U.S.C. 5 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) 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- 
(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 
SRC 03 141 53313 
Page 4 
(iv> Receives only general supervision or direction from higher level 
executives, the board of directors, or stockholders of the organization. 
In a letter of support, dated March 17,2003, the petitioner described the beneficiary's duties as: 
As President, [the beneficiary's] duties and responsibilities includes [sic] the overall direction 
and management of the American Subsidiary. More specifically, [the beneficiary's] 
executive and managerial duties includes [sic] planning, developing and establishing the 
policies and objectives of [the U.S. entity.] She reviews activity reports and financial 
statements to determine progress and status. She is in charge of the budget. Furthermore, she 
performs cost analysis and establishes pricing policies. She is in charge of the budget. 
Moreover, [the beneficiary] supervises the development of new products and technics [sic]. 
The petitioner submitted a copy of the U.S. entity's organizational chart that depicted the beneficiary as 
president and one other employee as vice-president. The chart also listed a number of vacant positions. The 
petitioner sub of IRS Form W-2, which demonstrated that the U.S. entity employed the 
beneficiary an 2002. The petitioner submitted a copy of the U.S. company's Articles of 
the entity was incorporated on November 12, 1997. 
The director determined that the instant petition was submitted without sufficient documentation and 
requested that the petitioner submit the following evidence: 
Please submit evidence of a lawful entry. Please submit a copy of the 1-94 issued to you 
when you entered the U.S.. . . 
Establish the beneficiary is acting primarily in an executive/managerial capacity. ... list the 
names and titles of those performing the routine tasks of the business, and submit supporting 
documentation. 
Please submit copies of Form 941 for the four quarters of 2002 and the first quarter of 2003. 
Please include the attachments, names of employees, social security numbers and wages 
earned, and evidence of payment. 
Please submit a copy of the corporate federal tax return for 2002. 
In response to the director's request for evidence, the petitioner stated that the U.S. entity employed a vice- 
president who "takes care of the production of the parts." The petitioner also listed the names of six machine 
companies and stated that they were representative of sub-contractors who performed the entity's production 
of machine parts. The petitioner listed a sales representative and accountant as employees of the U.S. entity. 
The petitioner submitted copies of the U.S. entity's IRS Form 941, Employer's Quarterly Federal Tax Returns 
for the quarters as requested by the director, but without attachments. 
The director subsequently denied the petition. The director noted that the petitioner had failed to comply with 
the request for evidence in that it had failed to submit attachments to the entity's Form 941, quarterly reports. 
The director also noted that assertions, in the absence of supporting evidence, were insufficient to demonstrate 
that an employee is performing in a primarily managerial or executive capacity. The director concluded that 
it appeared from the record that the beneficiary had been and would be performing the daily activities 
SRC 03 141 53313 
Page 5 
associated with operating a business rather than primarily performing duties that were managerial or 
executive in nature. 
On appeal, the petitioner disagrees with the director's decision and asserts that the former vice-president no 
longer works for the U.S. entity, and that the petitioner had hired a new full-time employee. The petitioner 
also asserts that the beneficiary is the only remaining manager or executive in the United States to supervise 
the organization's operations. The petitioner contends: 
[The beneficiary] possesses overall administrative and executive authority and 
responsibilities of the business. She exercises all latitude in discretionary decision-making 
and ensure that the goals and policies are followed. She possesses the authority to hire and 
fire the employees. She reviews activity reports and financial statements to determine 
progress and status. [The beneficiary] is in charge of the administration, the development of 
new markets, the budget, and pricing polices. 
The petitioner further contends that the U.S. entity distributes permanent cosmetic supplies and can operate 
with a very limited number of employees. The petitioner also contends that subcontractors do all the 
company's manufacturing. The petitioner claims that the U.S. entity now employs a full-time worker who is 
primarily involved in the sale and production of its product in that she contracts with subcontractors for the 
production and repair of the company's equipment. 
On reviewing the petition and the evidence, the petitioner has not established that the beneficiary has been or 
will be employed in a primarily managerial or executive capacity. The evidence shows that the petitioner had 
been doing business in the United States for more than one year prior to the filing of the instant petition. 
Therefore, it will not be considered a new office pursuant to 8 C.F.R. 5 214.2(10(10(ii)(F) for purposes of 
evaluating the beneficiary's position in the U.S. entity. Throughout the petition the petitioner indicates that it 
plans to hire additional employees in the future. However, the petitioner must establish eligibility at the time 
of filing the nonimrnigrant 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 I&N 
Dec. 248 (Reg. Comm. 1978). Furthermore, 8 C.F.R. 5 214.2(1)(3)(v)(C) allows the intended United States 
operation one year within the date of approval of the petition to support an executive or managerial position. 
There is no provision in CIS regulations that allows for an extension of this one-year period. If the business 
is not sufficiently operational after one year, the petitioner is ineligible by regulation for an extension. In the 
instant matter, the evidence demonstrates that the petitioner has not reached the point that it can employ the 
beneficiary in a predominantly managerial or executive position. 
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. 5 214.2(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. The petitioner must specifically state whether the 
beneficiary is primarily employed in a managerial or executive capacity. A beneficiary may not claim to be 
employed as a hybrid "executive/manager" and rely on partial sections of the two statutory definitions. It is 
not clear from the evidence which of the beneficiary's duties are considered managerial and which are 
considered executive. Nor has the petitioner submitted sufficient evidence to demonstrate that the 
beneficiary's position has and will involve significant authority over generalized policy or that the job duties 
she performs primarily are managerial or executive in nature. 
SRC 03 141 53313 
Page 6 
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 include planning, developing and establishing the policies and objectives, and 
supervises the development of new products and techniques. The petitioner did not, however, define the 
beneficiary's goals, policies, or clarify who actually develops the petitioner's products and techniques. Going 
on record without supporting documentary evidence is not sufficient for purposes of meeting the burden of 
proof in these proceedings. Matter of Treasure Craj7 of California, 14 I&N Dec. 190 (Reg. Comm. 1972). 
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. 5 1101(a)(44)(A). For instance, the petitioner depicted the beneficiary as directing the entire 
operation of the organization, establishing goals and policies of the organization, and exercising sole 
discretionary decision making. 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. Suva, 
724 F. Supp. 1103, 1108 (E.D.N.Y. 1989), afd, 905 F. 2d 41 (2d. Cir. 1990); Avyr Associates Inc. v. 
Meissner, 1997 WL 188942 at *5 (S.D.N.Y.). 
Even though the petitioner claims that the beneficiary directs and manages the petitioner's marketing, finance, 
record keeping, and administrative activities, it does not claim to have anyone on its staff to actually perform 
the marketing, finance, record keeping, and administrative functions. Thus, either the beneficiary herself is 
performing the marketing, finance, record keeping, or administrative functions or she does not actually 
manage those functions as claimed by the petitioner. In either case, the AAO is left to question the validity of 
the petitioner's claim and the remainder of the beneficiary's claimed duties. Doubt cast on any aspect of the 
petitioner's proof may, of course, lead to a reevaluation of the reliability and sufficiency of the remaining 
evidence offered in support of the visa petition. Matter of Ho, 19 I&N Dec. 582, 591 (BIA 1988). If the 
beneficiary is performing the petitioner's marketing, finance, record keeping, and administrative activities, the 
AAO notes that an employee who primarily performs the tasks necessary to produce a product or to provide 
services is not considered to be employed in a managerial or executive capacity. Matter of Church of 
Scientology International, 19 I&N Dec. 593,604 (Comrn. 1988). 
In the instant matter, the petitioner claims that the U.S. entity employs a vice-president, sales representative, 
an accountant, and subcontractors who produces and repairs the company's equipment all of whom are under 
the direction of the beneficiary. However, the record shows and the ~etitioner admits that the uetitioner 
employs only the beneficiary and one other person, Since it appears from the 
evidence that the beneficiary actually performs the d siness, it can be concluded 
that she has been and will be performing tasks necessary to provide a service or product and such duties will 
not be considered managerial or executive in nature. An employee who primarily performs the tasks 
necessary to produce a product or to provide services is not considered to be employed in a managerial or 
executive capacity. Matter of Church Scientology International, supra. 
Further, although the petitioner asserts that the company employs independent contractors who manufacture 
and produce machine parts and repair company equipment, there has been no evidence submitted to 
substantiate this claim or to show that the independent contractors were employed on a full-time basis by the 
U.S. entity, or that they received any form of managerial or supervisory instruction from the U.S. entity. 
There is also a lack of evidence to establish to what extent the independent contractors' time will be spent 
relieving the beneficiary from performing nonqualifying duties of the organization. The evidence shows that 
SRC 03 141 53313 
Page 7 
the independent contractors consist of non-affiliated machine parts manufacturers. There is no indication 
from the record that the duties of the parts manufacturers qualify as performing a major function of the U.S. 
entity or providing a major service that would allow the entity to achieve its goals. Additionally, the 
petitioner has not explained how the services of the contracted employees obviate the need for the beneficiary 
to primarily conduct the petitioner's business. Going on record without supporting documentary evidence is 
not sufficient for purposes of meeting the burden of proof in these proceedings. Matter of Treasure Craft of 
California, supra. In this matter, the petitioner has failed to overcome the objections of the director. 
Based upon a review of the record, it appears that the U.S. entity has not yet reached a level of complexity 
sufficient to support a managerial or executive position. Further, the record does not support a finding that 
the beneficiary has been and will be employed by the U.S. entity in a primarily managerial or executive 
capacity. For this reason, this petition may not be approved. 
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. 5 1361. The petitioner has not sustained that burden. 
ORDER: The appeal is disinissed.