dismissed L-1A Case: Technology Development

identifying data deleted to 
Ppreot ckarly unwarranted 
h-011 of pe"ansr privacy 
PUBLIC COPY 
U.S. Department of Homeland Security 
20 Massachusetts Ave. N.W. Rm. A3000 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
FILE: LIN 04 250 52245 Office: NEBRASKA SERVICE CENTER Date: AUG 0 4 2006 
IN RE: 
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(15)(L) of the Immigration and 
Nationality Act, 8 U.S.C. 5 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. 
. </* 
~zbert P. Wiemann, Chief 
Administrative Appeals Office 
LIN 04 250 52245 
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 appeal will be dismissed. 
The petitioner filed this nonimmigrant petition seeking to extend the employment of its manager1 as an L-1A 
nonimmigrant intracompany transferee pursuant to section 10 1 (a)(15)(L) of the Immigration and Nationality 
Act (the Act), 8 U.S.C. 8 1101(a)(15)(L). The petitioner, an Nevada corporation, claims to be the subsidiary 
of Sourcecode Technology Holdings, (Pty) Ltd., located in Johannesburg, South Africa. The petitioner is 
engaged in technology development. The beneficiary was initially granted a one-year period of stay to open a 
new office in the United States, and the petitioner now seeks to extend the beneficiary's stay. 
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 filed an appeal in response to the denial. On appeal, counsel for the petitioner alleges that the 
director's decision failed to take into account "the nature, scope, extent and totality of the petitioner's business 
activities," and alleges that if the director had reviewed the evidence more thoroughly, he would have 
concluded that the beneficiary was in fact involved in the overall management of the petitioner's business and 
was thus employed in a primarily managerial or executive capacity. 
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. 8 214.2(1)(14)(ii) provides that a visa petition, which involved the opening of a 
new office, may be extended by filing a new Form 1-129, accompanied by the following: 
(a) Evidence that the United States and foreign entities are still qualifying organizations 
as defined in paragraph (l)(l)(ii)(G) of this section; 
(b) Evidence that the United States entity has been doing business as defined in 
paragraph (l)(l)(ii)(H) of this section for the previous year; 
(c) A statement of the duties performed by the beneficiary for the previous year and the 
duties the beneficiary will perform under the extended petition; 
1 
The AAO notes that in the initial petition, the beneficiary's position was described as a manager. In 
response to the request for evidence, however, the petitioner referred to the beneficiary as regional director for 
the Western region. 
LIN 04 250 52245 
Page 3 
(d) A statement describing the staffing of the new operation, including the number of 
employees and types of positions held accompanied by evidence of wages paid to 
employees when the beneficiary will be employed in a managerial or executive 
capacity; and 
(e) Evidence of the financial status of the United States operation. 
The primary issue in this 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 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. 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 making; and 
(iv) receives only general supervision or direction from higher level executives, the board 
of directors, or stockholders of the organization. 
LIN 04 250 52245 
Page 4 
In an undated statement submitted in support of the petition, the beneficiary's duties were described as 
follows: 
[The beneficiary] will continue to oversee policies for the operation of the enterprise and their 
implementation, and in so doing will perform activities that directly relate to the management 
of the organization, including the overseeing of activities of employees within the 
organization. In the course of his responsibilities he will exercise discretion and independent 
judgment as required. 
In addition, the petitioner explained that it currently maintained two offices in the United States (the 
beneficiary's place of employment in Washington and a second office in Illinois), and that the beneficiary 
would be stationed in the Washington office. An organizational chart submitted as part of the petitioner's 
plan for the fiscal year 2005 indicated that in addition to the beneficiary, the petitioner employed Bill Pitts as 
a business development manager working under the beneficiary's supervision. The chart further indicated 
that the petitioner planned to hire additional managers and technical specialists in the future. 
On September 13, 2004, the director requested additional evidence pertaining to the nature of the 
beneficiary's position in the U.S. business. The request specifically asked the petitioner to submit a more 
detailed description of the beneficiary's duties, as well as a list of all subordinates of the beneficiary, with a 
description of each person's position title, their duties, and their educational backgrounds. The petitioner was 
also asked to submit copies of invoices or other documentation to establish that it had been doing business for 
the previous year. 
In a response submitted on December 2, 2004, the petitioner responded to the director's request. With regard 
to the director's request for a more specific description of duties, the following statement was provided: 
The management role performed by the Beneficiary is critical to the Petitioner's ongoing 
operations and activities. The Beneficiary is employed in a key managerial role and 
specifically as Regional Director, Western Region for Petitioner in the United States. A copy 
of Petitioner's Organizational Employee Chart containing current employees and positions to 
be filled is attached. 
The Beneficiary will continue to oversee implementation of goals and policies for the 
operation of the Petitioner and their implementation. In so doing he will perform activities 
that directly relate to the management of the organization, including the overseeing of 
activities of employees and the hiring of new employees for Petitioner. The Beneficiary, in 
the course of his management responsibilities, will be vested with the right to discharge 
employees and oversee employee responsibilities in the areas of business development and 
technical support. The Beneficiary is vested with authority and discretion over day-to-day 
operations possessing wide latitude with respect to discretionary issue[s] and decision making 
LIN 04 250 52245 
Page 5 
thereof. The Beneficiary in performance of his duties receives only general supervision from 
the board of directors of Petitioner. 
Additionally, the petitioner quoted a letter from the foreign parent company, dated June 30, 2003, which was 
submitted in support of the initial new office petition. The relevant section stated: 
"[The beneficiary] will direct the management of the organization; establish its goals and 
policies, and in so doing will exercise wide latitude in discretionary decision making. In 
performance of his responsibilities he will receive only general supervision from the board of 
directors of the parent organization[.]" 
Additionally, the same organizational chart submitted with the petition was submitted in response to the 
request for evidence. No additional information regarding other staff members was provided. 
On December 6,2004, the director denied the petition. The director found that the evidence in the record was 
insufficient to establish that the beneficiary would primarily be employed in a managerial or executive 
capacity. The director concluded that the documentary evidence submitted did not establish that the 
beneficiary was managing a subordinate staff of professionals. In addition, the director concluded that based 
on the information contained in the record, it appeared that the beneficiary was responsible for performing the 
tasks necessary to provide the petitioner's services, and thus was not functioning in a primarily managerial or 
executive capacity. 
On appeal, counsel for the petitioner provides an overview of the petitioner's current status and its potential 
plans for continued expansion in the future. Counsel reasserts, briefly, the general responsibilities of the 
beneficiary, and asserts that if the director had considered the totality of the petitioner's business, a finding in 
favor of the beneficiary's managerial or executive capacity would have been entered. 
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(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 initial description of duties provided by the petitioner in these proceedings did little to describe the 
beneficiary's actual duties, nor did it describe the nature of the beneficiary's day-to-day tasks. Instead, it 
merely provided a vague overview of the nature of his duties. As previously stated, the initial evidence 
submitted was insufficient to warrant approval, and consequently, the director requested more specific 
information, including a more specific description of the beneficiary's duties. The petitioner responded to this 
request, and in addition to describing the beneficiary's duties in fbrther detail, the petitioner resubmitted an 
organizational chart showing that the beneficiary oversaw one subordinate employee in the Washington office 
of the petitioner. 
The AAO, upon review of the record of proceeding, concurs with the director's finding that the petitioner has 
not established that the beneficiary will be employed in either a primarily managerial or executive capacity. 
LIN 04 250 52245 
Page 6 
Whether the beneficiary is a managerial or executive employee turns on whether the petitioner has sustained 
its burden of proving that his duties are "primarily" managerial or executive. See sections 101(a)(44)(A) and 
(B) of the Act. Here, the petitioner fails to document what proportion of the beneficiary's duties would be 
managerial functions and what proportion would be non-managerial. The petitioner lists the beneficiary's 
duties as solely managerial andfor executive in nature, but appears to merely paraphrase the regulatory 
definitions. The petitioner fails to quantify the time the beneficiary spends on each duty on a weekly basis, 
despite the director's specific request for such information. This failure of documentation is important 
because given the fact that only two persons are employed at the petitioner's Washington office, it is unclear 
what an average day consists of for the beneficiary without further information. Failure to submit requested 
evidence that precludes a material line of inquiry shall be grounds for denying the petition. 8 C.F.R. § 
103.2(b)(14). 
Additionally, the petitioner failed to address the director's request for additional information regarding the 
beneficiary's fellow employees and subordinates. This omission on behalf of the petition is important 
because the stated duties of the beneficiary include supervising other employees. Although the beneficiary is 
not required to supervise personnel, if it is claimed that her duties involve supervising employees, the 
petitioner must establish that the subordinate employees are supervisory, professional, or managerial. See 
10 1 (a)(44)(A)(ii) of the Act. 
Though requested by the director, the petitioner did not provide any additional information regarding the 
staffing of the U.S. operation or the specific position titles and duties of its other employees. Any failure to 
submit requested evidence that precludes a material line of inquiry shall be grounds for denying the petition. 
8 C.F.R. § 103.2(b)(14). Thus, by declining to address the director's query, the petitioner has not established 
that the one identified subordinate employee possesses or requires an advanced degree, such that he could be 
classified as a professional. Nor has the petitioner shown that this employee supervises subordinate staff 
members or manages a clearly defined department or function of the petitioner, such that he could be 
classified as a manager or supervisor. Thus, the petitioner has not shown that the beneficiary's subordinate 
employee is supervisory, professional, or managerial, as required by section 101(a)(44)(A)(ii) of the Act.. 
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). Counsel asserts on appeal that the petitioner's infancy should be considered when assessing 
the beneficiary's active role in the performance of company duties. The AAO disagrees. The regulation at 8 
C.F.R. § 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 Citizenship and 
Immigration Services (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 petitioner has not reached the point that it can employ the beneficiary in a predominantly 
managerial or executive position. For ths reason, the 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. § 1361. Here, that burden has not been met. Accordingly, the 
director's decision will be affirmed and the petition will be denied. 
LIN 04 250 52245 
Page 7 
ORDER: The appeal is dismissed.