dismissed L-1A Case: Trading

U.S. Department of Homeland Security 
20 Mass. Ave, N.W. Rm. A3042 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
Rle: WAC 01 197 57833 Officc: CALIFORNIA SERVICE CENTER Date: ipp 3 1 3335 
IN RE: Petiboner: 
Beneficiary 
Petition: Petition for a Nonimmigrant Worker Pursuant to Section lOl(a)(15)(L) of the Immigration 
and Nationallty Act, 8 U.S.C. $ 1 101(a)(15)(L) 
IN BEHALF OF PETITIONER: 
INSTRUCTIONS : 
This 1s the decislon 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. 
/ 7 
"' { 
[ kobert P. Wsmann, Director 
' Administrative Appeals Office 
0 
WAC 01 197 57833 
Page 2 
DISCUSSION: The Director, Califomla Senrice 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 pctitioner seeks to employ the beneficiary temporarily in the United States as an L-1A nonimrnigrant 
intracompany transferee pursuant to section 101 (a)(15)(L) of the Immigration and Nationality Act (the Act), 8 
U.S.C. 5 1101(a)(15)(L). The U.S. petitioner, a corporation organized in the State of California engaged in 
the trading industry, seeks to employ the beneficiary as its presidedchief executive officer. The petitioner 
claims that it is the subsidiary of . located in Taichung, Taiwan. 
The director denied the petition concluding that the petitioner did not establish that (1) the beneficiary wlll be 
enlployed in the United States in a primarily managerial or executive capacity; and (2) the beneficiary's pnor 
year of employment abroad was in a position that was managerial or executive. 
The petitioner filed an appeal in response to the denial. On appeal, counsel for the petitioner contends that the 
denial was erroneous, and that the beneficiary now functions primarily in an executive capacity. Counsel 
further contends that the beneficiary's prior employment abroad was in a managerial capacity as required by 
the regulations. In support of these contentions, counsel for the petitioner submits a brief and additional 
evidence. 
To establish eligbility 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 laowledge capacity, for one 
continuous year within three years preceding the beneficiary's application for admission into the Unlted 
States. In addition, the beneficiary must seek to enter the United States temporarily to continue rendering h~s 
or her services to the same employer or a subsidiary or affiliate thereof in a managerial, exccutive, 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 bc 
accompanied by: 
(i) Evldencc 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 alicn 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 knowIedge and that the alien's prior 
education, training, and employment qualifies himher to perform the intended 
WAC 01 197 57833 
Page 3 
services in the United States; however, the work in the United States need not be the 
same work which the alien performed abroad. 
1, 
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 I- 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 (I)(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 ncw operation, including the number of 
employees and types of positions held accompanied by evldence of wages paid to 
employees when the beneficiary will be employed in a management or executive 
capacity; and 
(e) Evidence of thc financial status of the United States operation. 
The first issue in this matter is whethcr the beneficiary w~ll be employed by the United States entlty in a 
primarily managerial or executive capacity. 
Section 101(a)(44)(A) of the Act, 8 U.S.C. $ 1101(a)(44)(A), defines the term "managerial capacity" as an 
assignment within an organization in whlch 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) rf another employee or other employees are directly supervised, has the authority to 
hire and fire or recommend those as well as other personnel actlons (such as 
promotion and leave authorlzation), 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 actlvity or functlon for which the 
employee has authority. A first line supervisor is not considered to be acting m a managerial 
WAC 01 197 57833 
Page 4 
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) establishcs 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 fiom higher level executives, the board 
of directors, or stockholders of the organization. 
In the initial petition, counsel submitted a letter fiom the foreign employer outlining the beneficiary's 
proposed duties while employed in the United States. The petitioner described her dut~es as follows: 
[The beneficiary] has made several trips to the United States for 5 years to oversee the 
opening of U.S. operations . . . . The U.S. company has now reached a critical state in [its] 
development, and [the beneficiary's] presence to oversee the future growth of the company 
requires her continuous presence at this time. 
The foreign petitioner further stated that the bencficiary would be entering the United States in order to apply 
her experience as a sales manager to the start-up of the U.S. business. 
On July 2 1, 2001, the director requested additional evidence pertaining to the nature of the beneficiary's 
position in the U.S. business, including a detailed list of the beneficiary's proposed duties and evidence of the 
employment and wages paid to the-petitioner's U.S. employees. In a response received on October 12, 2001, 
the petitioner submitted several documents in response to the director's request, including organizational 
charts for both the U.S. and foreign entities, position descriptions for the bencficiary and the employees of the 
U.S. entity, and Employment Eligibility Forms (1-9) for the two employees of the U.S. petitioner. 
On March 21, 2002, the director denied the petition. The director, who reviewed the record to detemxne 
eligibility under both managerial and executive capacity, found that the beneficiary's stated duties had 
satisfied neither. The director noted that the nature and structure of the business as currently functioning did 
not appear to support the position of a bonafide manager or executive. Instead, the director found that the 
beneficiary's proposed duties included a combination of duties normally performed by a first line supervisor, 
a secretary, a sales person, recruiting personnel, andlor a trainer. In addition, the director found that the 
beneficiary's stated duties while employed abroad were limited to that of a salcs manager, and thus did not 
demonsbate those of a managerial or exccutive position. 
WAC 01 197 57833 
Page 5 
On appeal, counsel for the petitioner asserts that the director's decision was erroneous, and suggests that with 
regard to the U.S. position, the director erroneously focused on the beneficiary's previous duties and not her 
current duties. Counsel further asserts that despitc the beneficiary's job title of sales manager, she was 
performing executive duties for the foreign employer abroad during her period of employment prior to the 
petition's filing. Finally, counsel submits additional evidence in support of the viability of the U.S. business. 
Upon revlew, counsel's assertions are not persuasive. ven examining the executive or managerial capaclty 
of the beneficiary, the AAO will look first to the petitioner's 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 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. 
The AAO wlll first examine the beneficiary's proposed duties in the United States. On appeal, counsel 
clarifies that the petitioner is employing the beneficiary in a pnmarlly executive capacity, and requests 
consideration under th~s definition. However, counsel suggests that in the alternative, the beneficiary "may 
also perform ccrtain tasks and responsibilities generally associated with an employee in a managerial 
capacity." The AAO, upon revlew of the record of proceeding, concurs with the director's finding that the 
beneficiary will not be employed in either a primarily managerial or executive capac~ty. Whether the 
beneficiary is a manager or executive employee turns on whether the petitioner has sustained ~ts burden of 
proving that his duties are "primarily" managerlal or executive. See sections 101(a)(44)(A) and (B) of the 
Act. Here, the petitioner claims that the beneficiary's duties are exclusively executive, yet the identified 
duties of the beneficiary in the record include non-executive tasks. For example, in a statement submitted in 
response to the request for evidence, the petitioner states that the beneficiary will spend 80% of her time 
prepanng furniture samples and contacting prospective buyers. Such duties are not included in the definition 
of exccutive capaclty, which counsel urges the AAO to consider. 
The record contains no additional independent evidence or explanation establishing that the beneficiary is 
truly worhng as an executive. Merely claiming that the beneficiary is an executive IS insufficient to establish 
elig~bility in th~s matter. Going on record without supporting documentary evidence is not sufficient for 
purposes of meet~ng the burden of proof in these proceedings. Matter of Treasure Craft of Califonliu, 14 
I&N Dec. 190 (Reg. Comm. 1972). In addition, counsel's statements on appcal are llkewise unsupported by 
independent evidence. Without documentary ev~dence to support the claim, the assertions of counsel will not 
satisfy the pet~tioner's burden of proof. The assertions of counsel do not constitute evidence. Matler 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). 
\ 
The AAO will next look to the defin~tion of managerlal capacity to determine whether the beneficiaiy 1s 
alternatively qualified under this aspect of the regulations. On appeal, counsel states that the beneficiary will 
exerclse discretion over the day-to-day operations of the manager's activities when the manager is away. The 
record, however, only suggests that the U.S. entlty employs two sales persons in add~tion to the proposed 
positron of the beneficiary. Consequently, this statement 1s somewhat confusing and is inconslstent with the 
premously-submtted evidence. It is ~ncumbent upon the petitioner to resolve any inconsistencies in the 
WAC 01 197 57833 
Page 6 
rccord by independent objective evidence. Any attempt to explain or reconcile such inconsistencies will not 
suffice unless the petitioner submits competent objective evidence po~nting to where the truth lies. Matter of 
Ho, 19 I&N Dec. 582, 591-92 (BIA 1988). Nevertheless, counsel's discussion of managerial duties is 
restricted to the times when the-unidentified manager of the U.S. cntity is away. Since counsel affirmatively 
). 
supports 'this premise, the PLd0 has no choice but to conclude that the primary duties of the beneficiary are 
not those of a manager. If the beneficiary "may" perform these duties, and only performs these duties when 
the manager is away, the beneficiary cannot beprimurily acting in a managerial capacity. 
Finally, although counsel on appeal asserts that the beneficiary's proposed duties would now have evolved to 
the point where they are strictly executive, this assertion is not persuasive to find that the beneficiary's 
proposed duties satisfy the regulatory definitions. The petitioner must establish eligibility at the time of filing 
the noniinn~igrant 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 ofMichetin Tire Corp.; 17 I&N Dec. 248 (Reg. 
Comm. 1978). In this case, the petitioner had not established the need for a managerial or executive position 
at the time of filing. For this reason, the petition may not be approved. 
The AAO will next examine the beneficiary's position while employed by the foreign entity. The AAO again 
concurs with the director's finding that the beneficiary was not employed in managerial or 'eiecutive capacity 
abroad. In this case, the petitioner claims that the beneficiary's duties as Sales Manager while working 
abroad re'quired 80% of her time to be spent on "mak[ing] client contacts inside and outside of Taiwan, 
visit[ing] clients, attend[ing] hiture exhibitions" and making strategies and plans for cxpansion of the U.S. 
business. Such duties are not included in the definitions.of managerial or executive capacity. As a result, the 
- 
AAO is not persuaded that the beneficiary .was employed in a managerial or executive capacity while abroad. 
The duties described; as stated by the director, suggest that the beneficiary was working as a sales person 
andfor client recruiter. Since the record contains no independent evidence to establish the executive and 
managerial capacity of the beneficiary, other than her title abroad and the statements of the petitioner and 
counsel, the AAO cannot reasonably conclude that the benkficiaq was in fact a manager or executive. As 
previously stated, merely claiming that the beneficiary was employed as a manager or an executive is 
insufficient to establish eligibility in this matter. Going on record without supporting documentary evidence 
is not sufficient for purposes of mceting the burden of proof in these proceedings. Matter of Treasure Craft of 
California, 14 I&N Dec. at 190. In addition, counsel's statements on appeal are likewise unsupported by 
independent evidence: Without documentary evidence to support the claim, the assertions of counsel will not 
satisfy the petitioner's burden if proof. The assertions of counsel do not constitute evidence. Matter of 
Obaigbena, 19 I&N Dec. at 534; Matter of lazfreano, 19 I&N Dec, at 1; Matter of Ranzirez-Sanchez, 17 I&N 
Dec. at 506. 
The petitioner has faded to establish that the beneficiary was employed abroad m managerial or executive 
capacity, as required by 8 C.F.R. $214.2(1)(3)(iv). For this additional reason, the petition may not be 
approved. 
& 
Beyond the decision of the director, the AAO notcs several inconsistencies in the record not addressed by the 
petitioner. First, the petitioner's' Articles of Incorporation, signed and filed with the Secretary of State of 
Florida on October 16, 2000, designate the beneficiary as the corporation's resident agent. Florida requires 
WAC 01 197 57833 
Page 7 
that an individual or service company, be responsible for receiving important legal and tax documents. In 
order to be a registered agent in the State of Florida, onc must be an adult, residing in the State of Flor~cia 
with a physical address, and be available during business hours. The petitioner's Form 1-129, however, 
indicates that the beneficiary entered the United States in B-1 status on March 6, 2001, which subsequently 
expired on June 5, 2001. Since the Articles of Incorporation were filed nearly five months prior to her entry 
into the U.S., it is unclear how the beneficiary could legitimately serve as the petitioner's resident agent. 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). 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. 9 1154(b); see also Anetekhai v. I.N.S., 876 F.2d 1218, 1220 (5th Cir.1989); Lu-Ann 
Bakely Shop, Inc. v. Nelson, 705 F. Supp. 7, 10 (D.D.C. 1988): Systronics Corp. v. INS, 153 F. Supp. 2d 7, 15 
(D.D.C. 2001). 
Furthermore, the petitioner's address is also listed as the beneficiary's home address. More importantly, this 
home address was listed as the business address of the petitioner when incorporated in October 2000. Aga~n, 
since the beneficiary was not yet in the United States at the time of incorporation, it is unclear why this home 
address was in existence, and why this address continues to serve as the petitioner's primary business address. 
Again, 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 pointrng to where the truth lies. Matter of Ho, 19 I&N Dec. 
at 591-92. 
An application or pet~tion that fails to comply with the technical requ~rements of the law may be denied by 
the AAO even d the Service Center does not identify all of the grounds for denial m the lnltial decision. See 
Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 2001), afd. 345 F.3d 683 
(9th Clr. 2003); see also Dor v. INS, 891 F.2d 997, 1002 n. 9 (2d Cir. 1989)(notmg that the AAO reviews 
appeals on a de novo basis). 
In visa petltlon proceedings, the burden of proving eligibility for the benefit sought remains entirely with the 
petitloner. Section 291 of the Act, 8 U.S.C. 5 1361. Here, that burden has not been met. Accordingly, the 
director's decislon will be affirmed and the petition w~ll be denied. 
ORDER: The appeal is dismissed.