dismissed L-1A Case: Technology Consulting

U.S. Department of Homeland Security 
20 Massachusetts Ave., N.W., Rm. A3042 
Wash~ngton. DC 20529 
~dend&@ deb dpPlkd to U. S. Citizenship 
prem My onwanated and Immigration 
invmbn ofwmai o*cu 
PUBWC COPY 
FILE: WAC 04 070 50422 Office: CALIFORNIA SERVICE CENTER Date: WOY 0 8 2005 
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. 
Robert P. Wiemann, ~irecior 
dministrative Appeals Office 
WAC 04 070 50422 
Page 2 
DISCUSSION: The Director, California 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 seeks to continue to employ its branch office manager/technology consulting manager 
temporarily in the United States pursuant to section 101(a)(15)(L) of the Immigration and Nationality Act (the 
Act), 8 U.S.C. 9 1101(a)(15)(L). The petitioner is a California corporation that claims to be engaged in import 
and export of fuel cell technology and raw materials, and provision of technology consulting services. It 
claims to be a subsidiary of CNL, located in South Korea. The beneficiary was initially granted a one-year 
period of stay in L-1A status in order to open a new office in the United States and subsequently received a 
two-year extens~on of stay. The petitioner filed the instant petition in order to advise Citizenship and 
Immigration Services (CIS) of a change in the beneficiary's previously approved employment, and to request 
an amendment of h~s current L-1A status. 
The director denied the petition concluding that the petitioner had not established that the beneficiary would 
be employed in a managerial or executive capacity. 
On appeal, counsel for the petitioner asserts that the director overlooked the fact that the beneficiary was 
already granted an extension of his L-1A status, and states that the instant petition was filed for the purpose of 
requesting approval for "job scope broadening." Counsel suggests that the director misunderstood the nature 
of the beneficiary's duties, provides further justification for the expansion of the beneficiary's role, and 
explains that "[the beneficiary's] duties have never left the scope of being an effective manager." Counsel 
also claims that the petitioner recently hired two additional employees and provides a new organizational 
chart and job descriptions for the petitioner's current staff in support of the appeal. 
To establish L-1 eligibility under section 101 (a)(15)(L) of the Immigration and Nationality Act (the Act), 
8 U.S.C. 8 I lOl(a)(l5)(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. 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. 
(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. 
WAC 04 070 50422 
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 hindher 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 primary issue in the present matter is whether 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. 9 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 supervisedt 
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. 9 1101(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 malung; and 
(iv) receives only general supervision or direction from higher level executives, the board 
of directors, or stockholders of the organization. 
WAC 04 070 50422 
Page 4 
The petition was submitted on January 13, 2004. The petitioner indicated on Form 1-129 that it was seeking 
approval of a change in previously approved L-1A employment, and submitted evidence that the beneficiary 
had been granted an extension of L-IA status for a two-year period commencing on June 19, 2003. The 
pet~tioner indicated that the beneficiary would serve as "Branch Office Manager and Technology Consulting 
Manager." 
In a January 12, 2004 letter, counsel for the petitioner explained that the beneficiary was transferred to the 
United States in order to open a branch office to purchase raw materials needed for fuel cell manufacturing 
and export them to the parent company in Korea. Counsel described the beneficiary's duties in this regard as 
follows: 
As the manager of [the petitioner], [the beneficiary] utilized his discretion and authority based 
on his experience and knowledge for exploring the niche market in the emerging substitution 
Energy Source. . .. It requires [the beneficiary]; a) develop local customer's volume and profit 
in the United States in accordance with [policies] and guidelines set by the company, including 
overall marketing plan and philosophies of the corporation; b) identify niche market for 
penetration and establish a confident [relationship] with the customers; c) develop marketing 
strategy to reach out [to] the potential customer; d) develop local raw material suppliers for 
purchasing and exporting them to Korea; e) protect [the foreign entity's] fuel cell technology 
from infringement with other U.S. Patented technologies; f) manage [the petitioner] financially 
profitable; and g) maintain regular communication with the parent company regarding ongoing 
activities. 
To perform these specific duties, he communicated with major fuel-cell companies and raw 
material suppliers. He hired two employees to assist him for maintaining the office and 
penetrating the niche market. 
Counsel further explained that since January 21, 2003, the petitioner had also been engaged in preparing and 
prosecuting U.S. patent applications through an agreement with counsel's law office. Counsel stated that 
since that time, the beneficiary has performed preparation and prosecution of over 60 U.S. Patent 
Applications, resulting in income of $36,000 for the petitioner. Counsel indicated that the beneficiary would 
continue to manage the fuel cell technology and U.S. Patent business units for the petitioner. Counsel stated 
that the beneficiary had hired two employees since September 2003 "due to the successful result from U.S. 
Patent Application preparation business," and that two more employees would be hired "after the contract 
agreement of importing raw materials." 
In support of the petition, the petitioner submitted a copy of the "Technology Service Providing Agreement" 
made between the petitioner and Eugene Oak Law Office, whereby the petitioner agrees to provide services 
including preparation and prosecution of U.S. Patent and Trademark Applications, and related technology 
license agreements and technology transfer agreements. Article I11 of the agreement provides that all services 
outlined and all technological issues related with the services shall be prepared, reviewed and authorized by 
the beneficiary. The services include: 
WAC 04 070 50422 
Page 5 
Search related previous technology and trademarks claimed in an [sic] U.S. Patent and 
Trademark Application brief provided by the Client and provides the result to the Client 
in a document form. 
Translate the information from an inventor of an [sic] U.S. Patent Application into 
English. 
Summarize claims requested by the investor in a format of [sic] applicable to U.S. Patent 
Application. 
Prepare a draft of U.S. Patent Application following the related patent rules and in 
terminologies currently using [sic] in the field of area of the invention based on the 
information from the Applicant. 
Provide all the result in a proper document form. 
Fill up an [sic] U.S. Patent Application Forms [sic] based on the finalized form provided 
by the Client and mail the whole package, after authorized by the Client, to the United 
States Patent and Trademark Office (U.S.P.T.O.). 
Prepare drafts of responses to Offices Actions from the U.S.P.T.O. 
Fill up an [sic] U.S. Trademark and Servicemark Forms based on the information 
provided by the client and mail the whole package, after authorized by the Client, to the 
[U.S.P.T.O.]. 
The petitioner submitted a payroll chart for the fourth quarter of 2003 which shows wages paid to the 
beneficiary and two other employees, but the petitioner did not describe its staffing. 
On January 23, 2004, the director requested additional evidence. Specifically, the director requested a copy 
of the petitioner's organizational chart describing its managerial hierarchy and staffing levels. The director 
indicated that the chart should include the names of all executives, managers, and supervisor, the number of 
employees within each department, and a description of job duties, educational level, annual salariedwages, 
and immigration status for all employees of the organization. 
In a response dated February 2, 2004, the petitioner submitted an organizational chart depicting the 
beneficiary as branch manager over the "U.S. Patent Division" and "Fuel Cell Division." The chart also 
depicts the beneficiary as manager of each division. The chart shows that one employee serves as "assistant 
manager" of both divisions, while the petitioner's third employee serves as secretary of the fuel cell division 
and accountant of the U.S. patent division. 
The petitioner indicated that the assistant manager is a full-time contractor and is responsible for: (1) 
researching fuel cell related information from the media; (2) communicating with fuel cell companies to 
investigate changing policies and situations; (3) preparing reports on researched data for the beneficiary's 
review; and (4) correcting the English of draft U.S. patent applications prepared by the beneficiary. The 
petitioner stated that the secretary works on a part-time basis and performs the following duties: (1) 
organizing documents and schedules; (2) receiving incoming calls from clients and associates; (3) arranging 
and administering paper work; and (4) preparing and keeping an accounting report. 
The director denied the petition on February 10, 2004 concluding that the beneficiary would not be employed 
in a managerial or executive capacity. The director observed that the beneficiary's duties, as described by the 
WAC 04 070 50422 
Page 6 
petitioner, reflect that he is responsible for sales, marketing, purchasing and patent application preparation and 
non-qualifying duties related to these functions. The director noted that the petitioner had not been able to 
incorporate enhancements in structural complexity and personnel that would allow it to support a managerial 
or executive position. The director concluded that, given the description of the company, the duties of the 
beneficiary's subordinates, and the description of the beneficiary's duties, the beneficiary would be engaged 
in all aspects of the petitioner's day-to-day operations. 
On appeal, counsel for the petitioner emphasizes that the petitioner was merely seeking to amend the 
beneficiary's previously approved L-IA extension, and claims that the director misunderstood the reason for 
filing the petition. Counsel contends that the purpose of the petition was only to advise CIS of the 
beneficiary's additional job duties related to the petitioner's U.S. patent application business unit, and asserts 
that the beneficiary's role has been and will remain managerial in nature. 
Counsel further explains that the petitioner filed the instant petition after the U.S. Patent Office informed the 
beneficiary that he would require CIS approval in order to apply for the Patent Agent Examination. Counsel 
claims that the beneficiary requires the patent agent license in order to legally hire and manage a qualified 
employee to execute patent preparation services in accordance with the petitioner's technical service 
agreement. Counsel states that the beneficiary "is managing the branch office of [the foreign entity] while 
investigating the field of patent application preparation." Counsel claims that petitioner hired an additional 
employee to prepare drafts of patent applications in February 2004, and would hire a sales manager for the 
fuel cell technology component of the business as of March 1, 2004. Counsel suggests that the director 
misunderstood the beneficiary's situation, and contends that his job duties "will always be lim~ted to the 
effective hiring, directing and managing of [the petitioner's] employees .... In order to execute his job 
accordingly, [the beneficiary] must first be authorized by the U.S. government in the specific business 
interests of [the petitioner]." 
Counsel's assertions are not persuasive. When examining the executive or managerial capacity of the 
beneficiary, the AAO will look first to the petitioner's job description of the job duties. See 8 C.F.R. 
2142(1)(3)(ii). The petitioner's description of the job duties must clearly describe the duties to be 
performed by the beneficiary and indicate whether such duties are in an executive or managerial capacity. Id. 
Based on the evidence of record, it is evident that the beneficiary allocates the majority of his time to 
researching, drafting and preparing patent applications for an attorney, rather than performing managerial or 
executive duties as defined at section 101(a)(44) of the Act. According to the 2004 business plan submitted 
with the petition, the petitioner had not yet begun exporting raw materials for fuel cells to Korea or importing 
fuel cells from Korea; these activities were anticipated to begin between June and December 2004. It is 
apparent that the petitioner's only source of income at the time the petition was filed was from preparation of 
patent applications. As the beneficiary is solely responsible for preparing patent applications within the 
petitioner's organization, the AAO assumes, and it has not been shown otherwise, that these are his primary 
duties. This conclusion is supported by counsel's statement that the beneficiary personally prepared 60 U.S. 
patent applications in the year preceding the filing of the petition. 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, 19 I&N Dec. 593,604 (Comm. 1988). 
WAC 04 070 50422 
Page 7 
Furthermore, as noted by the director, the beneficiary's job description includes a number of other non- 
qualifying duties, including market research, networking with potential suppliers of raw materials, and 
"developing new business." 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 show 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). Where an individual is 
primarily performing the tasks necessary to produce a product or to provide a service, that individual cannot 
also primarily perform managerial or executive duties. In the instant matter, the petitioner has failed to show 
that non-qualifying duties will not constitute the majority of the beneficiary's time. Although counsel claims 
that the beneficiary is "purely a manager," without documentary evidence to support the claim, the assertions 
of counsel will not satisfy the petitioner's burden of proof. The unsupported assertions of counsel do not 
constitute evidence. Matter of Obaigbena, 19 I&N Dec. 533, 534 (BIA 1988); Matter of Laureano, 19 I&N 
Dec. 1 (BIA 1983); Matter of Ramirez-Sanchez, 17 I&N Dec. 503, 506 (BIA 1980). Rather, when 
determining whether a beneficiary is employed in a primarily managerial or executive capacity, 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). It is evident from the record that any managerial 
duties performed by the beneficiary at the time of filing were incidental to his responsibility for providing the 
petitioner's patent application preparation services. 
The AAO notes that counsel has presented this petition as an amendment of the beneficiary's previously 
approved L-IA petition, and only seeks to "broaden the scope" of the beneficiary's duties. However, the 
evidence of record shows that the beneficiary has been preparing patent applications since January 2003. The 
previous petition to extend the beneficiary's status was filed in June 2003 (See WAC 03 184 50895). 
Counsel's argument that the beneficiary's responsibility for preparing patent applications represents a 
"substantial change in job duties" strongly implies that the petitioner failed to provide an accurate account of 
the beneficiary's actual duties when it submitted the previous petition on his behalf. 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). 
On appeal, counsel attempts to mitigate the extent of the beneficiary's responsibility for providing the 
services of the organization, suggesting that the beneficiary is merely "investigating the field of patent 
application preparation" and only seeking to obtain a U.S. Patent Agent license so that he may legally hire 
and manage additional patent agents. This argument is not persuasive, as the evidence submitted with the 
initial petition clearly indicates that the beneficiary had been personally preparing patent applications, 
apparently without the proper license, for a year prior to the filing of this petition. 
The AAO acknowledges counsels claim that the petitioner has hired a sales manager for its fuel cell division 
and a manager for its U.S. Patent division subsequent to the filing of the petition. However, 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 
of MicheIin Tire Corp., 17 I&N Dec. 248 (Reg. Comm. 1978). The evidence submitted on appeal is not 
probative of the beneficiary's eligibility at the time of filing and will not be considered in this proceeding. 
WAC 04 070 50422 
Page 8 
The petitioner noted that CIS approved other petitions that had been previously filed on behalf of this 
beneficiary. Each nonimmigrant petition is a separate record of proceeding with a separate burden of proof; 
each petition must stand on its own individual merits. The prior nonimmigrant approvals do not preclude CIS 
from denying an extension petition. See e.g. Texas A&M Univ. v. Upchurch, 99 Fed. Appx. 556, 2004 WL 
1240482 (5" Cir. 2004). Furthermore, if the previous nonimmigrant petitions were approved based on the 
same unsupported assertions that are contained in the current record, the approval would constitute material 
and gross error on the part of the director. 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 of Church Scientology International, 19 I&N Dec. 593, 597 (Comm. 1988). It would be 
absurd to suggest that CIS or any agency must treat acknowledged errors as binding precedent. Sussex Engg. 
Ltd. v. Montgomery, 825 F.2d 1084, 1090 (6th Cir. 1987), cert. denied, 485 U.S. 1008 (1988). 
Furthermore, the AAO's authority over the service centers is comparable to the relationship between a court 
of appeals and a district court. Even if a service center director had approved the nonimmigrant petitions on 
behalf of the beneficiary, the AAO would not be bound to follow the contradictory decision of a service 
center. Louisia?za Philharmonic Orchestra v. INS, 2000 WL 282785 (E.D. La.), afyd, 248 F.3d 1139 (5th Cir. 
2001), cert. denied, 122 S.Ct. 5 1 (2001). 
Finally, as noted above, the evidence contained in the instant record suggests that the petitioner failed to 
provide an accurate account of the beneficiary's duties in its previous request to extend his L-IA status. The 
approval of the previous petition may be subject to revocation based on the evidence submitted with this 
petition. See 8 C.F.R. $6 214.2(1)(9)(iii) and (iv). 
The petitioner has not submitted evidence on appeal to overcome the director's determination that the 
beneficiary will not be employed in a primarily managerial or executive capacity. For this reason, the appeal 
will be dismissed. 
Beyond the decision of the director, the record contains conflicting information regarding the petitioner's 
ownership which precludes a finding that the U.S. company maintains a qualifying relationship with the 
foreign entity pursuant to 8 C.F.R. 3 214,2(l)(ii)(G). The petitioner claims to be a branch office of the 
beneficiary's foreign employer in Korea. However, the petitioner was incorporated in the State of California. 
If the petitioner submits evidence to show that it is incorporated in the United States, then that entity will not 
qualify as "an . . , office of the same organization housed in a different location," since that corporation is a 
distinct legal entity separate and apart from the foreign organization. See Matter of M, 8 I&N Dec. 24, 50 
(BIA 1958, AG 1958); Matter of Aphrodite Investments Limited, 17 I&N Dec. 530 (Comm. 1980); and Matter 
of Tessel, 17 I&N Dec. 63 1 (Act. Assoc. Comm. 1980). If the claimed branch is incorporated in the United 
States, CIS must examine the ownership and control of that corporation to determine whether it qualifies as a 
subsidiary or affiliate of the overseas employer. 
The petitioner submitted its stock certificate number one and stock transfer ledger, which indicate that the 
company issued 60,000 shares of common stock without par value to CNL (Korea) on July 23, 2002 in 
exchange for consideration valued at $24,000. The petitioner submitted the minutes of the first meeting of the 
board of directors, which indicates that the company's directors agreed to issue all 60,000 of its authorized 
shares to the foreign entity for $60,000. The petitioner's 2004 business plan refers to its president, Chon Chu, 
WAC 04 070 50422 
Page 9 
as the owner of 67 percent of the company's stock. The petitioner's 2002 Internal Revenue Service (IRS) 
Form 1120, U.S. Corporation Income Tax Return, indicates at Schedule K, question 4 that the petitioner is a 
subsidiary of CNL, but indicates at Schedule K, question five that the company is 100 percent owned by Chon 
Ho Chu. Schedule L of the 2002 Form 1120 indicates the initial value of the petitioner's common stock as 
$10,000, rather than $24,000 or $60,000 as stated elsewhere in the petitioner's evidence. 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 I&N Dec. 582, 591-92 (BIA 1988). Based on this 
contradictory evidence, the AAO is unable to ascertain the actual ownership and control of the petitioner and 
therefore cannot determine whether the petitioner has a qualifying relationship with the foreign entity. For this 
additional reason, 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 Enterprises, Inc. v. United States, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 2001), afyd. 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). 
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. fj 1361. Here, that burden has 
not been met. Accordingly, the previous decision of the AAO will be affirmed, and the petition will be 
denied. 
ORDER: The appeal is dismissed.