dismissed L-1A Case: Telecommunications

identiMa~~g data delekd tto 
PUBLIC COPY 
U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rrn. A3000 
Washington, DC 20529 
u. s. Citizenship 
and Immigration 
File: LIN-04-040-50628 Office: NEBRASKA SERVICE CENTER Date: JUL 1 7 2006 
Petition: 
 Petition for a Nonimrnigrant 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 fbrther inquiry must be made to that office. 
or- 
Ro 
Administrative Appeals Office 
LIN-04-040-50628 
Page 2 
DISCUSSION: The Director, Nebraska Service Center, denied the petition for a nonirnmigrant visa. The 
matter is now before the Administrative Appeals Office (AAO) on appeal. The AAO will dismiss the appeal. 
The petitioner filed this nonimmigrant petition seeking to extend the employment of its manager as an L-1A 
nonimmigrant intracompany transferee pursuant to section 10 l(a)(15)(L) of the Immigration and Nationality 
Act (the Act), 8 U.S.C. 9 1101(a)(15)(L). The petitioner is a limited liability corporation organized under the 
laws of the State of Wisconsi work telecommunications. The petitioner 
claims that it is the subsidiary o located in Istanbul, Turkey. 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, reasoning that the beneficiary 
was not managing professional, supervisory, or managerial personnel and that the petitioner had not 
established the beneficiary would be managing a function, department, or component of the petitioner. 
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 for the petitioner asserts that the director's 
conclusion was in error. In support of this assertion, the petitioner submits a brief and additional evidence. 
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. 
 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 (I)(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 111 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 
LIN-04-040-50628 
Page 3 
education, training, and employment qualifies hirnlher to perform the intended 
services in the United States; however, the work in the United States need not be the 
same work which the alien performed abroad. 
In its letter dated November 23, 2003, the petitioner suggests that the present petition should be adjudicated 
under the regulations governing new offices, provided in 8 C.F.R. § 214.2(1)(3)(~). However this appears to 
be language used in the petitioner's initial L-1A petition filed on behalf of the beneficiary that was simply not 
updated or amended. This appears to be the case for the following reasons: (1) the same page of the letter 
also claims the beneficiary is in B-1 status, when he had already changed status to and was present in the 
United States in L-1A classification as of the date of the letter, and (2) the petitioner indicated on the Form 
1-129 that it was not a new office. Even assuming arguendo that the petitioner is still requesting to be treated 
as a new office, counsel takes issue with the director's application of the regulatory requirements for new 
office extensions as provided in 8 C.F.R. 8 214.2(1)(14)(ii). If a beneficiary is coming to the United States to 
open a new office, the petition may only be approved for a period "not to exceed one year." 8 C.F.R. 5 
214,2(1)(7)(i)(3). Any request for an extension of a petition that was originally approved as a new office is a 
petition that involved the opening of a new office and is subject to the criteria set forth at 8 C.F.R. 5 
214.2(1)(14)(ii). 
The regulation at 8 C.F.R. 214.2(1)(14)(ii) also 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; 
(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 first 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. 
 1 101 (a)(44)(A), defines the term "managerial capacity" as an 
assignment within an organization in which the employee primarily: 
LIN-04-040-50628 
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(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 fue 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 fimction for 
which the employee has authority. A first line supervisor is not considered to be 
acting in a managerial capacity merely by virtue of the supervisor's supervisory 
duties unless the employees supervised are professional. 
Section 101(a)(44)(B) of the Act, 8 U.S.C. § 1101(a)(44)(B), 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 hction; 
(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. 
In the initial petition, the petitioner described the beneficiary's job duties as follows: 
The beneficiary has founded the business in the United States and continues to be in full 
charge of all policy and decision-making. He has contracted with independent and general 
contractors in order to receive job orders. In addition, he has managed and overseen the 
installation of its telephone systems, security systems and other network systems in order to 
assure that the petitioner's customers receive service and products of the upmost quality. 
On February 4,2004, the director requested additional evidence. Specifically, the director requested evidence 
establishing the criteria required by 8 C.F.R. 214.2(1)(14)(ii). 
LTN-04-040-50628 
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In response, the petitioner submitted additional documentation and described the beneficiary's prior and 
future duties as: 
The beneficiary, in the previous year, has performed many managerial duties which have 
been essential in the expansion of the petitioner's business. To begin with, the beneficiary 
planned, budgeted and made the financial decision to invest in two new ventures, which 
include the rental of two premises in two separate malls for the sale of jewelry, accessories 
and toys, as evidenced by the rental agreements. The beneficiary's duties as a result thereof 
included negotiating with wholesalers in order to find the most economical products without 
jeopardizing, contracting with independent and general contractors in order to receive job 
orders. In addition, the beneficiary managed and oversaw the installation of its telephone 
systems, security systems and other network systems in order to assure that the petitioner's 
customers received service and products of the upmost quality. The beneficiary was also in 
hll charge of hiring and firing employees. Under the extended period, the beneficiary will 
continue to perform many of the same functions and duties as performed to date. However, in 
the extended period, the beneficiary will place more emphasis in the expansion of its retail 
sale of jewelry, accessories and toys by funding the opening of a retail store outside the mall. 
On July 22, 2004, the director denied the petition. The director determined that the petitioner had failed to 
establish the beneficiary would be employed primarily in a managerial or executive capacity. 
On appeal, counsel for the petitioner asserts that the director's decision was in error. 
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. 
214.2()(3)(). 
 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 petitioner cannot claim that some of the duties of the position entail 
executive responsibilities, while other duties are managerial. A beneficiary may not claim to be employed as 
a hybrid "executive/manager" and rely on partial sections of the two statutory definitions. 
The definitions of executive and managerial capacity have two parts. First, the petitioner must show that the 
beneficiary performs the high level responsibilities that are specified in the definitions. Second, the petitioner 
must prove that the beneficiary primarily performs these specified responsibilities and does not spend a 
majority of his or her time on day-to-day bctions. Champion World, Inc. v. INS, 940 F.2d 1533 (Table), 
1991 WL 144470 (9th Cir. July 30, 1991). 
The initial description is vague and fails to adequately articulate the beneficiary's activities for the prior year. 
The duties listed for the prior year have not been demonstrated to constitute managerial or executive duties, 
and the basis for the petitioner's claim that the beneficiary's duties qualify as managerial or executive in 
capacity is not clear. As an example, the petitioner fails to identify the subject of the beneficiary's overseeing 
of the phone installations and security installations, etc. Was the petitioner intending to say the beneficiary 
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has been overseeing the installation of phone systems of customers or of the petitioner itself? If the former, 
the record does not contain any supporting documentary evidence that the petitioner installed any phone 
systems for clients, and if it is the latter then the amount of time spent installing the petitioner's phone 
systems would not constitute being employed primarily in a managerial or executive capacity. The AAO 
cannot presume or construct assertions on behalf of a petitioner, and can not extrapolate facts from 
evidentiary submissions where their relevance has not been made clear. The petitioner has the burden of 
proving eligibility in these proceedings. This burden includes clearly articulating assertions and associating 
those assertions with relevant, probative evidentiary submissions. 
The petitioner has cited an interoffice memo by Associate Commissioner 
 First, this 
memorandum merely reminds officers to apply the statutory and regulatory definition of managerial capacity 
when adjudicating L-1 or E1-3 petitions. There is no evidence in this matter that the director has not 
complied with this legal requirement. Second, internal memos are meant for guidance only and do not 
constitute any form of rulemaking or vest any claims or rights with petitioners. Such memos may also not be 
interpreted in such a manner as to circumvent the plain meaning of statutes or regulations. The petitioner 
must establish eligibility for a requested benefit. 8 C.F.R. 9 103.2@)(1). The Service has responsibility for 
determining whether the alien is eligible for admission and whether the petitioner is a qualifying organization. 
8 C.F.R. Ej 214.2(1)(1)(i). The service, in its discretion, may determine the weight and sufficiency of 
submitted evidence and must base its decision on the record. If the record fails to contain any evidence on a 
particular issue then a favorable decision on that issue would not be based on the record. Thus, citing an 
interoffice memo when the record does not contain evidence of eligibility is not persuasive. 
The only evidence submitted in response to the director's request for a description of the beneficiary's prior 
and proposed duties is a brief and vague statement by the petitioner. The description is inadequate and is not 
a detailed description as required by 8 C.F.R. $214.2(1)(3). However, it is the petitioner's failure to document 
its assertions which is most fatal to the petition. Going on record without supporting documentary evidence is 
not sufficient for purposes of meeting the burden of proof in these proceedings. Matter of SqfJici, 22 I&N 
Dec. 158, 165 (Corn. 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Cornrn. 
1972)). Reciting the beneficiary's vague job responsibilities or broadly-cast business objectives is not 
sufficient; the regulations require a detailed description of the beneficiary's daily job duties. The petitioner 
has failed to answer a critical question in this case: What does the beneficiary primarily do on a daily basis? 
The actual duties themselves will reveal the true nature of the employment. Fedin Bros. Co., Ltd. v. Sava, 724 
F. Supp. 1103, 1108 (E.D.N.Y. 1989), afd, 905 F.2d 41 (2d. Cir. 1990). Conclusory assertions regarding the 
beneficiary's employment capacity are not sufficient. 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. at 
1108, afd, 905 F. 2d 41; Avyr Associates, Inc. v. Meissner, 1997 WL 188942 at "5 (S.D.N.Y.). In this case 
the primary deficiency in the petition is the petitioner's failure to submit probative documentary evidence 
supporting assertions that the petitioner is eligible for this benefit. 
The description provided in response to the director's request for evidence (RFE) fails to elaborate 
significantly on the initial description. The petitioner also fails to demonstrate that the duties described 
therein are managerial in capacity. The description repeats the conhsing statement with regard to installing 
phone and security systems. Activities such as selecting jewelry to sell or "negotiating with wholesalers" 
LIN-04-040-50628 
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have not been demonstrated to constitute a managerial activity. Further, the description demonstrates that the 
beneficiary was actually performing the duties listed as opposed to managing them. The record does not 
contain any corroborating evidence that the activities described actually occurred. While the record does 
contain evidence that two small jewelry kiosks were acquired, this is not probative as to the nature of the 
beneficiary's employment capacity. Moreover, asserting that the beneficiary's duties "included negotiating 
with wholesalers in order to find the most economical products without jeopardizing, contracting with 
independent and general contractors in order to receive job orders" indicates that he is performing tasks 
necessary to provide a service or product, and these 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, 19 I&N Dec. 593,604 (Comm. 1988). 
On appeal, counsel for the petitioner makes conclusory assertions that the beneficiary is eligible for this 
classification. However, the record does not provide support for counsel's conclusions. As an example, the 
petitioner has asserted that it has three employees and three business locations, two of which are jewelry 
kiosks in malls. Running a jewelry kiosk in a mall is a labor-intensive operation, and would require the 
presence of at least one sales associate for all regular business hours. This leaves one employee, presumably 
the beneficiary, to work at the telecommunications location. In addition to not submitting any probative 
evidence that any telecommunications services are being provided, it is not credible to assert that one 
employee can perfom the routine activities necessary to provide the product and service and still act 
primarily in a managerial or executive capacity. 
This classification is not based on a legal fiction or characterization, the petitioner must demonstrate that the 
beneficiary will actually be employed primarily in a managerial or executive capacity. The director's decision 
must be based on the record. The petitioner has the burden to establish eligibility through the submission of 
probative documentary evidence. Going on record without supporting documentary evidence is not sufficient 
for purposes of meeting the burden of proof in these proceedings. Matter of SofJici, 22 I&N Dec. at 165 
(citing Matter of Treasure Craft of California, 14 I&N Dec. 190). As constituted, the record does not support 
that that the petitioner is engaged in network communications or that the beneficiary is employed in a 
primarily managerial or executive capacity. Thus a favorable decision on the issue of being employed in a 
managerial or executive capacity could not be made based on the record. 
The record is not persuasive in demonstrating that the beneficiary has been or will be employed in a primarily 
managerial or executive capacity. The petitioner indicates that it plans to hire additional managers and 
employees in the fiiture. However, the petitioner must establish eligibility at the time of filing the 
nonimmigrant visa petition. A visa petition may not be approved at a kture date after the petitioner or 
beneficiary becomes eligible under a new set of facts. Matter ofMichelin Tire Corp., 17 I&N Dec. 248 (Reg. 
Cornm. 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 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. 
LIN-04-040-50628 
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Accordingly, the petitioner has not established that the beneficiary will be employed in a primarily managerial 
or executive capacity, as required by 8 C.F.R. § 214.2(1)(3). 
Beyond the decision of the director, the second issue in this proceeding is whether the foreign organization 
and petitioner have a qualifyrng relationship. A qualifying organization means a United States or foreign firm, 
corporation or other legal entity that: 
(1) 
 Meets exactly one of the qualifying relationships specified in the definitions of a parent, 
branch, affiliate or subsidiary specified in (l)(l)(ii) of this section; 
(2) 
 Is or will be doing business (engaging in international trade is not required) as an employer in 
the United States and at least one other country directly or through a parent, branch, affiliate 
or subsidiary for the duration of the alien's stay in the United States as an intracompany 
transferee; and 
(3) 
 Otherwise meets the requirements of section 10 1 (a)(15)(L). 
The regulation and case law confirm that ownership and control are the factors that must be examined in 
determining whether a qualifying relationship exists between United States and foreign entities for purposes 
of this visa classification. Matter of Church Scientology International, 19 I&N Dec. 593; see also Matter of 
Siemens Medical Systems, Inc., 19 I&N Dec. 362 (BIA 1986); Matter of Hughes, 1 8 I&N Dec. 289 (Cornm. 
1982). In the context of this visa petition, ownership refers to the direct or indirect legal right of possession of 
the assets of an entity with full power and authority to control; control means the direct or indirect legal right 
and authority to direct the establishment, management, and operations of an entity. Matter of Church 
Scientology International, 19 I&N Dec. at 595. 
Documentation submitted as evidence of a qualifling relationship includes a letter from the beneficiary 
stating he is the one authorized to direct the foreign organization. Such evidence is not objective and 
independent and will not be afforded significant weight in these proceedings. The petitioner must submit 
competent, objective evidence pointing to where the truth lies. Matter of Ho, 19 I&N Dec. 582, 591-92 (BIA 
1988). The petitioner also submitted tax documentation. The tax form submitted merely shows that the 
petitioner is owned by the beneficiary, however, and is not sufficient to demonstrate a qualifying relationship. 
The fact that the beneficiary owns the petitioner raises a question about the temporary nature of the 
beneficiary's stay. More importantly, however, this evidence contradicts the claims in both the Form 1-129 
and in the petitioner's letter dated November 24, 2003 that the foreign entity owns the petitioner and that the 
petitioner is thereby its subsidiary, not its affiliate. If CIS fails to believe that a fact stated in the petition is 
true, CIS may reject that fact. Section 204(b) of the Act, 8 U.S.C. 5 1154(b); see also Anetekhai v. I.N.S., 876 
F.2d 1218, 1220 (5th Cir.1989); Lu-Ann Bakery Shop, Inc. v. Nelson, 705 I?. Supp. 7, 10 (D.D.C.1988); 
Systronics COT. v. INS, 153 F. Supp. 2d 7, 15 (D.D.C. 2001). Therefore, the petitioner has failed to show by 
a preponderance of the evidence that a qualifying relationship exists between itself and the foreign entity. 
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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), ard. 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. 5 1361. Here, that burden has 
not been met. 
ORDER: 
 The appeal is dismissed and the petition hereby denied.