dismissed L-1A Case: Technology Consulting

U.S. Department of Homeland Security 
20 Massachusetts Ave., N.W., Rm. 3000 
Washington, DC 20529-2090 
U. S. Citizenship 
and Immigration 
File: WAC 08 1 14 5 1478 Office: CALIFORNIA SERVICE CENTER Date: MAR 0 4 2009 
Petition: 
 Petition for a Nonirnmigrant Worker Pursuant to Section 101(a)(15)(L) of the Immigration 
and Nationality Act, 8 U.S.C. 5 1 101(a)(15)(L) 
IN 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. 
If you believe the law was inappropriately applied or you have additional information that you wish to have 
considered, you may file a motion to reconsider or a motion to reopen. Please refer to 8 C.F.R. 5 103.5 for 
the specific requirements. All motions must be submitted to the office that originally decided your case by 
filing a Form I-290B, Notice of Appeal or Motion, with a fee of $585. Any motion must be filed within 30 
days of the decision that the motion seeks to reconsider or reopen, as required by 8 C.F.R. 5 103.5(a)(l)(i). 
John F. Grissom, Acting Chief 
Administrative Appeals Office 
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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 AA0 will dismiss the appeal. 
The petitioner filed this nonimmigrant visa petition seeking to employ the beneficiary in the position of senior 
project manager as an L- 1 A nonimmigrant intracompany transferee pursuant to section 10 1 (a)(15)(L) of the 
Immigration and Nationality Act (the Act), 8 U.S.C. 5 1101(a)(15)(L). The petitioner is a corporation 
organized under the laws of the State of Washington and is allegedly a "technology, marketing, and strategy 
consulting company." 
The director denied the petition concluding that the petitioner did not establish that the beneficiary will be 
employed in the United States in a primarily managerial or executive capacity. 
The petitioner subsequently filed an appeal. The director declined to treat the appeal as a motion and 
forwarded the appeal to the AAO for review. On appeal, counsel to the petitioner asserts that the director 
erred and that the beneficiary's duties will be primarily those of a manager supervising professional 
employees. In support, counsel submits additional evidence, including a job description for the beneficiary's 
proposed subordinates in the United States. 
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. Specifically, 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 into 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. 5 214.2(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. 
(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 himher 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. 
WAC0811451478 
Page 3 
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. 5 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 101(a)(44)(B) of the Act, 8 U.S.C. 4 1 101 (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. 
The petitioner claims that the beneficiary will primarily perform managerial duties under section 
101 (a)(44)(A) of the Act. Although the petitioner does not claim that the beneficiary will primarily perform 
executive duties under section 101(a)(44)(B) of the Act, the AAO will nevertheless also consider that 
classification. 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). 
Counsel claims in his "legal brief' that the beneficiary "will be filling one of the open Project Manager 
' WAC 08 114 51478 
Page 4 
positions" in the United States. The petitioner describes the beneficiary's proposed duties in a "powerpoint 
summary" appended to the initial petition as follows: 
Schedules and attends all meetings with the client 
Captures requirements, action items, deadlines 
Writes the Statement of Work (SOW) for the project 
Creates the project plan (including milestones) 
Holds internal and external kick-off meetings 
Communicates regularly with the client (weekly status reports, sync calls) 
Coordinates the creation of content between the development team and subject matter 
experts 
Ensures that other roles meet milestones 
Closes out the project internally and externally 
Ensures that the purchase order (PO) is submitted 
Counsel also claims that each "team member" to be managed by the beneficiary will be "a professional who 
possesses at least a U.S. bachelor's degree or its equivalent." 
On March 18, 2008, the director requested additional evidence. The director requested, inter alia, an 
organizational chart for the United States operation, including a list of all employees to be under the 
beneficiary's supervision; descriptions of the job duties and educational levels of all subordinate employees; 
and a more detailed description of the beneficiary's proposed duties in the United States. 
In response, the petitioner hrther described the beneficiary's proposed duties in the United States in a letter 
dated May 20, 2008. The petitioner indicates that the beneficiary's "responsibilities will be the same" as his 
duties in India and describes these duties, which are also outlined in an attached "individual profile 
summary," as follows: 
• 
 Work to ensure high levels of employee engagement and motivation. Ensuring right 
fit of job and team member. Responding to concerns of teams by sensitively 
resolving the issue or escalating the same to the management. 
• 
 Developing the team members as professional with appropriate skilling [sic], 
direction and supervision. Providing proper guidance about company policies, best 
practices and use of standards and processes. 
a 
 Work with clients (externaVinterna1) to identify their needs for our services and 
transform the same into presentable, effective, relevant and workable deliverable 
descriptions and execution approach. Identifjr scope exclusions and project risks. 
a Assess project execution needs including skills, human resources, equipment, 
infrastructure and stakeholders' schedules. 
a Gather requirements and establish solution needs. Manage project specification - act 
as primary project architect. 
a Establish project teams, arranges and co-ordinates availability of required 
infkastructure etc., establishes communication plans. 
a Plan project execution by coordinating a deliverable breakdown, resource assignment 
WAC0811451478 
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and work schedules. 
Monitor project execution by keeping track of deliverable statuses, actual effort, 
context changes etc. Ensure effective and efficient execution by supervising the 
activities involving deliverable definition, design, development, validation, 
submission and sign-off. Manage schedule, effort and cost variances. 
Maintain communication with all project stakeholders and remain abreast with the 
relevant information about project progress and deliverable statuses. Continuously 
validate project priorities against relevant project contexts. Ensure that all relevant 
information is available to the team, client and other stakeholders. 
The petitioner also notes that the beneficiary will devote approximately 80% of his time to "project 
management" and 20% of his time to "administrative functions," which includes assisting with informal 
training and making presentations. 
Furthermore, counsel claims in an undated "legal brief' that the beneficiary will supervise "two professionals, 
and possibly a third professional (whose L1 petition is pending)." Counsel describes the two workers who are 
already employed by the petitioner as having earned university degrees. Counsel submitted an organizational 
chart portraying the beneficiary as supervising these two individuals, who are also described as "project 
managers." However, although counsel submits copies of the two claimed subordinates' resumes, the record 
is devoid of evidence pertaining to the specific duties to be performed by these two workers. 
On June 24, 2008, the director denied the petition. The director concluded that the petitioner failed to 
establish that the beneficiary will be employed primarily in a managerial or executive capacity. The director 
specifically notes that the petitioner failed to establish that the positions to be supervised by the beneficiary 
require those employees to have earned at least a bachelor's degree. Therefore, it has not been established that 
the beneficiary will supervise professional employees. 
On appeal, counsel asserts that the beneficiary's duties are primarily those of a manager. Counsel argues that 
the beneficiary will supervise professional employees. In support, counsel submits additional evidence, 
including a job description for the beneficiary's proposed subordinates in the United States. 
Upon review, 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 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. 
As a threshold matter, it is noted that counsel's attempt on appeal to supplement the record with evidence 
pertaining to the job duties of the beneficiary's claimed subordinates was inappropriate and will not be 
considered by the AAO. In her Request for Evidence, the director specifically requested that the petitioner 
describe the duties of the beneficiary's claimed subordinate workers in the United States. Therefore, as the 
petitioner was put on notice of required evidence and given a reasonable opportunity to provide it for the 
record before the visa petition was adjudicated, counsel may not submit this evidence for the first time on 
WAC 08 114 51478 
Page 6 
appeal. The AAO will not consider this evidence for any purpose. See Matter of Soriano, 19 I&N Dec. 764 
(BIA 1988); Matter of Obaigbena, 19 I&N Dec. 533 (BIA 1988). The appeal will be adjudicated based on 
the record of proceeding before the director. 
Furthermore, the petitioner's plan to employ additional workers in the future, e.g., other beneficiaries of 
pending non-immigrant visa petitions, may not be used to establish that the beneficiary will be employed in 
the United States in a primarily managerial or executive capacity. 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). Accordingly, only the beneficiary's claimed supervision of the two workers currently 
employed by the petitioner may be considered in determining whether the beneficiary will primarily perform 
qualifying duties in the United States. 
In this matter, the record fails to establish that the beneficiary will act in a "managerial" or "executive" 
capacity. In support of the petition, the petitioner has submitted a job description which fails to describe the 
beneficiary as primarily performing qualifying duties. For example, the petitioner states that the beneficiary 
will devote 80% of his time to "project management" and that he will work directly with clients to identify 
service needs, assess project execution needs, gather requirements, act as the primary project architect, plan 
and schedule project execution, and maintain communications with all stakeholders. However, absent 
evidence to the contrary, it appears that these duties are non-qualifying operational tasks necessary to the 
provision of the petitioner's services. The petitioner also claims that the beneficiary will devote 20% of his 
time to performing administrative tasks. However, similarly, it has not been established that these 
administrative tasks, e.g., assisting with informal training and making presentations, will be qualifying 
managerial or executive duties. Finally, the petitioner claims that the beneficiary will supervise two other 
project managers in the performance of his duties. However, as the petitioner failed to sufficiently describe 
the duties of these two subordinate employees or explain how, exactly these workers will relieve the 
beneficiary of the need to perform the non-qualifying tasks ascribed to him, if at all. Failure to submit 
requested evidence that precludes a material line of inquiry shall be grounds for denying the petition. 8 C.F.R. 
fj 103.2(b)(14). It also cannot be discerned whether these subordinates are professionals due to the petitioner's 
failure to submit the necessary job descriptions. See infra. 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, 14 I&N Dec. 190 (Reg. Comm. 1972). 
Accordingly, it appears that the beneficiary will "primarily" perform non-qualifying administrative, 
operational, and first-line supervisory tasks in his position as "senior project manager." 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 lOl(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 International, 19 I&N Dec. 593, 604 (Comm. 1988). The fact that the petitioner has 
given the beneficiary a managerial or executive title does not establish that the beneficiary will actually 
perform managerial or executive duties. Specifics are clearly an important indication of whether a 
beneficiary's duties are primarily executive or managerial in nature; otherwise meeting the definitions would 
simply be a matter of reiterating the regulations. Fedin Bros. Co., Ltd. v. Suva, 724 F. Supp. 1103 (E.D.N.Y. 
' WAC 08 114 51478 
Page 7 
1989), afd, 905 F.2d 41 (2d. Cir. 1990). 
The petitioner has also failed to establish that the beneficiary will supervise and control the work of other 
supervisory, managerial, or professional employees, or will manage an essential function of the organization. 
As asserted in the record, the beneficiary will directly supervise two "project managers." However, as these 
two workers are not described in the organizational chart as having supervisory responsibilities over other 
employees, it does not appear as if the project managers are supervisory or managerial employees. 
Furthermore, the record is also not persuasive in establishing that the project managers are "professional" 
employees. In evaluating whether the beneficiary will manage professional employees, the AAO must 
evaluate whether the subordinate positions require a baccalaureate degree as a minimum for entry into the 
field of endeavor. Section 101(a)(32) of the Act, 8 U.S.C. $ 1 101(a)(32), states that "[tlhe term profession 
shall include but not be limited to architects, engineers, lawyers, physicians, surgeons, and teachers in 
elementary or secondary schools, colleges, academies, or seminaries." The term "profession" contemplates 
knowledge or learning, not merely skill, of an advanced type in a given field gained by a prolonged course of 
specialized instruction and study of at least baccalaureate level, which is a realistic prerequisite to entry into 
the particular field of endeavor. Matter of Sea, 19 I&N Dec. 817 (Cornm. 1988); Matter of Ling, 13 I&N 
Dec. 35 (R.C. 1968); Matter of Shin, 11 I&N Dec. 686 (D.D. 1966). Therefore, the AAO must focus on the 
level of education required by the position, rather than the degree held by subordinate employee. The 
possession of a bachelor's degree by a subordinate employee does not automatically lead to the conclusion 
that an employee is employed in a professional capacity as that term is defined above. 
In this matter, the petitioner has not established that a bachelor's degree is actually necessary to perform the 
duties of either subordinate "project manager" position. As noted above, the petitioner failed to specifically 
describe the duties of these positions, even though this evidence was specifically requested by the director in 
the Request for ~vidence.' Once again, failure to submit requested evidence that precludes a material line of 
inquiry shall be grounds for denying the petition. 8 C.F.R. 6 103.2(b)(14). Accordingly, the record is not 
persuasive in establishing that these are "professional" positions, and, thus, it appears that the beneficiary will 
be a first-line supervisor of two non-professional employees. A managerial employee must have authority 
over day-to-day operations beyond the level normally vested in a first-line supervisor, unless the supervised 
employees are professionals. Section 10 1 (a)(44)(A)(iv) of the Act; see also Matter of Church Scientology 
International, 19 I&N Dec. at 604.~ 
1 
It is noted that, even if the AAO considered the job descriptions submitted on appeal for the beneficiary's 
claimed subordinate workers, these job descriptions would fail to establish that either of these positions is a 
"professional" position or that either position will relieve the beneficiary of the need to primarily perform 
non-qualifying duties. These descriptions indicate that the subordinate "project managers" will work directly 
with clients, gather requirements, maintain communications with stakeholders, provide knowledge leadership, 
engage in training, and make presentations. However, nothing in these descriptions establishes that a 
bachelor's degree or higher is necessary to perform these tasks. Accordingly, even if the descriptions 
submitted on appeal were considered, the petitioner has failed to establish eligibility for the benefit sought. 
2 
Furthermore, although the petitioner has not argued that the beneficiary will manage an essential function of 
the organization, the record would not support this position if taken. The term "function manager" applies 
WAC 08 114 51478 
Page 8 
Therefore, the petitioner has not established that the beneficiary will be employed primarily in a managerial 
capacity. 
Similarly, the petitioner has failed to establish that the beneficiary will act in an "executive" capacity. The 
statutory definition of the term "executive capacity" focuses on a person's elevated position within a complex 
organizational hierarchy, including major components or functions of the organization, and that person's 
authority to direct the organization. Section 101(a)(44)(B) of the Act. Under the statute, a beneficiary must 
have the ability to "direct the management" and "establish the goals and policies" of that organization. 
Inherent to the definition, the organization must have a subordinate level of employees for the beneficiary to 
direct, and the beneficiary must primarily focus on the broad goals and policies of the organization rather than 
the day-to-day operations of the enterprise. An individual will not be deemed an executive under the statute 
simply because they have an executive title or because they "direct" the enterprise as the owner or sole 
managerial employee. The beneficiary must also exercise "wide latitude in discretionary decision making" 
and receive only "general supervision or direction from higher level executives, the board of directors, or 
stockholders of the organization." Id. For the same reasons indicated above, the petitioner has failed to 
establish that the beneficiary will act primarily in an executive capacity. The job description provided for the 
beneficiary fails to establish that the beneficiary will primarily perform qualifying duties. To the contrary, it 
appears that the beneficiary will be primarily employed as a first-line supervisor of two employees and will 
perform the tasks necessary to produce a product or to provide a service. Therefore, the petitioner has not 
established that the beneficiary will be employed primarily in an executive capacity. 
Accordingly, the petitioner has failed to establish that the beneficiary will primarily perform managerial or 
executive duties, and the petition may not be approved for that reason. 
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. 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 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 attributed to managing the essential function. See 8 C.F.R. !j 214.2(1)(3)(ii). In 
addition, the petitioner's description of the beneficiary's daily duties must demonstrate that the beneficiary 
will manage the function rather than perform the tasks related to the function. In this matter, the petitioner 
has not provided evidence that the beneficiary will manage an essential function. The petitioner's job 
description fails to document how the beneficiary's duties will be primarily managerial. As explained above, 
the record fails to establish that the beneficiary will primarily perform qualifying managerial duties as a first- 
line supervisor of two non-professional employees. Absent a clear and credible breakdown of the time spent 
by the beneficiary performing his duties, the AAO cannot determine what proportion of his duties will be 
managerial, nor can it deduce whether the beneficiary will primarily perform the duties of a function manager. 
See IKEA US, Inc. v. US. Dept. of Justice, 48 F. Supp. 2d 22,24 (D.D.C. 1999). 
3~ounsel cites the Foreign Affairs Manual (FAM) as authority. It must be noted that the FAM is not binding 
upon USCIS. See Avena v. INS, 989 F. Supp. 1 (D.D.C. 1997); Matter of Bosuego, 17 I&N 125 (BIA 1979). 
WAC 08 114 51478 
Page 9 
Beyond the decision of the director, the petitioner has failed to establish that the beneficiary was employed 
abroad in a primarily managerial or executive capacity. 
The petitioner indicates in its May 20, 2008 letter that the beneficiary's "responsibilities will be the same" as 
his duties in India. Accordingly, as this job description was reproduced above and also appears in the record, 
it will not be repeated here. 
The petitioner also submitted an organizational chart for the foreign employer. This chart, and attached 
employee list, indicates that the beneficiary supervised approximately six subordinate workers. None of the 
subordinate workers is described as having supervisory or managerial responsibilities over other workers. 
Furthermore, the petitioner describes these six subordinate workers as performing a variety of computer 
related tasks. However, the record is devoid of evidence establishing that a bachelor's or higher degree, or its 
equivalent, is necessary to perform the duties ascribed to any of the positions. 
Upon review, it has not been established that the beneficiary primarily performed managerial or executive 
duties abroad. To the contrary, and similar to the proposed United States position, it appears that the 
beneficiary primarily performed administrative, operational, and first-line supervisory tasks abroad. 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; see also Matter of Church Scientology International, 19 I&N Dec. at 604. Also, to the extent 
the beneficiary supervised subordinate workers, it appears that this was a nonqualifying, first-line 
supervisory task. Once again, a managerial or executive employee generally must have authority over day-to- 
day operations beyond the level normally vested in a first-line supervisor. Section 101(a)(44) of the Act; see 
also Matter of Church Scientology International, 19 I&N Dec. at 604. Similar to the beneficiary's proposed 
subordinates in the United States, the record is not persuasive in establishing that any of the beneficiary's 
subordinates abroad was a managerial, supervisory, or professional worker. 
Accordingly, as the petitioner failed to establish that the beneficiary was employed abroad in a primarily 
managerial or executive capacity, the petition may not be approved for this additional reason. 
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), afd, 345 F.3d 683 
(9th Cir. 2003); see also Dor v. INS, 891 F.2d at 1002 n. 9 (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. When the AAO denies a petition on multiple alternative grounds, a plaintiff can 
succeed on a challenge only if it is shown that the AAO abused its discretion with respect to all of the AAO's 
enumerated grounds. See Spencer Enterprises, Inc., 229 F. Supp. 2d at 1043. 
The FAM provides guidance to employees of the Department of State in carrying out their official duties, 
such as the adjudication of visa applications abroad. The FAM is not relevant to this proceeding. 
WAC 08 114 51478 
Page 10 
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. Accordingly, the 
appeal will be dismissed. 
ORDER: The appeal is dismissed.