dismissed L-1A Case: Travel Agency

U.S. Department of Homeland Security 
20 Massachusetts Ave., N.W .. Rm. A3032 
Wash~ngton. DC 20529 
U.S. Citizenship 
and Immigration 
File: SRC 03 114 53458 Office: 'TEXAS SERVICE CENTER Date: Hm 1 0 
Petition: Petition for a Nonimmigrant.Worker Pursuant to Section lOl(a)(lS)(L) of the Immigration 
and Nationality Act, 8 U.S.C. 8 1 101 (a)(15)(L) 
IN BEHALF OF PETITIONER: 
SELF-REPRESENTED 
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. 
6 
Robert P. Wiemann, D/ector 
Administrative, Appeals Office 
SRC 03 1 14 53458 
Page 2 
DISCUSSION: The Director, Texas 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 petitionermfiled this nonimmigrant petition seeking to extend the employment of its president as an L-IA 
nonimmigrant intracompany transferee pursuant to section 101(a)(15)(L) of the Immigration ,and National~ty 
Act (the Act), 8 U.S.C. 5 1101(a)(15)(L). The petitioner is a copratio 
operates a travel agency. The petitioner claims that it is the subsidiary 
located in Caracas, Venezuela. The beneficiary was initially granted a o 
in order to open a new office in the United States, and the petitioner now seeks to extend hls stay for a one- 
year penod. 
The director denied the petition concluding that the petitioner did not establish that: (1) the benefic~ary would 
be employed in the United ~$tes in a primarily managerial or executive capacity; or (2) the petitioner had 
been doing business for the year preceding the filing of the petition. 
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, the petitioner provides a new orga~hizational chart 
and submits addit~onal evidence to establish that the U.S. company has been doing business. The petltloner . - 
claims that the beneficiary is eligible for an extension of status based upon this additional evidence. 
To istablish eligibility for the L-l nonimrnigrant visa classification, the petitioner must meet the criteria 
outlined in section 10l(a)(lS)(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 i~ito the United 
States. . In addition, the beneficiary must seek to enter the united States temporarily to continua: 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 emplby the 
alien are qualifying organizations as defined in paragraph (I)(l)(ii)(G) of this settion. 
(11) Ev~dence that the alien will be employed in an executive, managerial, or speciylized 
lcnowledge capacity, including a detailed description of the services to be perfortned. 
(ni) Evidence that the alien has at least one continuous year of full time employment 
abroad with a qualifying organizat~on within the three years preceding the filihg of' 
the petition. 
(iv) ' Evidence that the alien's prior year of employment abroad was m a pos~t~on that was 
managerial, executive or ~nvolved specialized knowledge and that the allen's prior 
SRC 03 114 53458, 
Page 3 
education, training, and employment quallfies hlrniher to perform the ~ntended 
servlces m the United States; however, the work In the Unlted States need not be the 
same work wh~ch the allen performed abroad. 
The regulat~on at 8 C F.R. 5 214.2(1)(14)(n) also provtdes that a visa petition, whlch ~nvolved the openrng of a 
new office, may be extended by filing a new Form 1-129, accompanied by the follow~ng: 
(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) ~vibence 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 siatement of the duties performed by the beneficiary for the previous year and the 
dudes the beneficiary will perform under the extended petition; 
(D) A statement desmbing the staffing of the new operation, including the number of 
employees and types of posit~ons held accompanied by evidence of wages paid to 
employees when the benefic~ary wlll be employed in a managerla1 or executive 
capici ty; 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 Gtates entlty in 
a managerial or executive capacity. 
1 
Section 101(a)(44)(A) of the Act, 8 U.S.C. tj IIOI(~)(M)(A), defines the term "managexial cspac~ty" as an 
ass~gnment within a$ organization In which the employee primarily: 
(I) manages the organtzatton, or a department, subd~vlsion, function, or component of 
the organlzation; 
(11) supervises and controls the work of other supervisory, professtonal, or managerial 
employees, or manages an essential function wlthln the organlzation, or a departtment 
or subdiv~s~on of the organlzat~on; 
(iii) if andther employee or other employees are directly supervised, has the authomty 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 supe*ised. 
functions at a senior level within the organizational hierarchy o> with respect to the 
function managed; and 
SRC 03 114 53458' 
Page 4 
(iv) exerc~ses d~scretion over the day to day operations of the actlvity or function for 
which the employee has authority. A first line supervisor is not considered to be 
actlng In a managerial capacity merely by vlrtue of the supervtsor's supervisory 
duties unless the employees superv~sed are professional. 
The petition was submitted on March 14, 2003. The petitioner indicated on Form 1-129 that the beneficiary 
would serve as pres:ident responsible for the "overall management of the corporation," and claimed to employ 
three individuals. The petitioner submitted a letter dated March 9, 2003, but did not include a description of 
the beneficiary's job duties. In addition, the petitioner provided an organizational chart depicding a president, 
a general manager; a marketing employee, a subcontracted accountant, a tourism packaies coordinator 
overseeing cruises and ground packages, and a ticket sales employee overseeing national aid international 
tourism. Finally, the petitioner submitted its Florida Forms UCT-6, Employer's Quarterly Report, for the last 
two quarters of 2002, which show four employees in each quarter. 
On March 26, 2003, the director requested additional evidence. In part, the director requested a new 
organizational chart'including its employees' names, positions, start date with the petitioner, and whether the 
employees are employed on a full-time or part-time basis. The director also instructed the petitioner to submit 
evidence establishing that the beneficiary is to be employed in an executive or managerial position. The 
, director noted that the petitioner's statement must provide the number of subordinate managqs, supervisors 
or other employees who report directly to the beneficiary and a brief description of their job titlts and duties. 
In a response receiv'ed on May 5, 2003, the pet~t~oner provided a letter from the forelgn entity's presrdent, 
who prov~ded the foJlowlng descnption of the beneficiary's dut~es: 
1 
[HJe directs ,the management of the corporation, he IS directly responsible for all aspects of 
the corporat,ion. [The benefic~ary] directs the operatrons of the corporation tlprough 
subordmated managenal and non-managerial personnel. . . .he has three employees whom 
report d~rectly to hm, they are: 
1. Mwha is in charge of the Ticket Sales department, hlr task IS to provlde 
sales an res.ervat~ons of alrllne tickets at national and international levels, reservations of 
hotels and cats for leasing and to provide customers information about documentation needed 
,for international tnps. 
1 
2. Mr. ho is in charge of the coordination of tourism packages, his task is 
for summer camps, winter events and singles packages, 
coordinate events and conventions, special tour packages for students and adults according to 
age and interest and be able to offer the adequate crulse according b the customer needs; 
3. Mrsw who is m charge of the marketing aspect of our corporation , 
coordin e eslgns and marketing plans to offer our products like tourist packages. 
airline tlckets,;cruises, hotel and auto reservat~ons ensuring that qualify control pollcles were 
enforced and the servtces satisfied cl~ents' standards. 
SRC 03 114 53458. 
Page 5 
Iri addition; [the beneficiary] conducts and controls all operations and strategic management 
activities of [the petitioner] in the United States, these [sic] includes setting and reviewing 
corporate dbjectives; supervise marketing coordinator, sales and purchasing; directing the 
expense c6,ntrols of thecorporation, includingoutsourcing services, personnel evduation, 
periodic rettew of financial statements and analysis of corporation; development of business 
opportunities and review the and performance of the U.S. corporation. 
[The benefi'ciaty] has ultimate responsibility to establish goals and policies of the corporation 
in all areas and he exercises latitude with regard to discretionary decision-making. 
In this executive position [the beneficiary] through subordinated managerial p&sonne~ 
ensures that [the petitioner] delivers and maintains the highest quality of services provided by 
our corporation. 
The petitloner submitted a new organizational chart showing the beneficiary as president and general manager 
and depicting the organizational structure described in the foreign entity's letter. The chart indicates that the 
ticket sales emplo$ee and tourism packages coordinator are employed full-time, while the marketing 
employee works part-t~me. 
The director denied !he petititin on May 16, 2003 concluding that the petitionex did not submit evidence 'that 
the beneficiary would be employed in a managerial or executive capacity., 
, I 
On appeal, the petitioner asserts that the benefici.ary's position "is of a managerial and executige nature." The 
petitioner submits a new organizational chart and claims that the person who prepared the previous chart "did 
not have the howlt&e ofthat shuqaq- 
manager and a differkt individua 
position previously ittributed tr 
,time basis in April 2002. The petitioner also re-submits copies of its i 
=chart depicts in the position of general 
I the ~osition of tourism ~ackarres ccbordinator, the 
I ,as hired on a full- 
; UCT-6, Employer's 
Quarterly Report, for the last two quarters of 2002. 
..Upon review, the petjtioner's assertions are not persuasive. As a preliminary matter, however, the AAO notes 
that the director failed to address the specific deficiencies in the petitioner's evidence in her dacision to deny 
the petition. When denying a petition, a director has an affirmative duty to explain the specific lleasons for the 
denial; this duty includes informing a petitioner why the evidence failed to satisfy its burden of proof pursuant 
to section 291 of the Act, 8 U.S.C. fj 1361. See.8 C.F.R. 5 103.3(a)(l)(i). The reasons given f& the denial in 
the directors May 16 2003 deeision are conclusory with no specific references to the evidenqe entered into 
the record. As the AAO's review is conducted on a de novo basis the AAO will herein address-the petitioner's 
evidence Br eligibility; See Dor v INS, 891 F.2d 997, 1002 n: 9 (2d Cir. 1989). 
When examining theiexecutive or managerial capacity of the beneficiary, the AAO wiIl look first to the 
petitioner's descri~tiok of the job-duties. See 8 c.F.'R. fi 214.2(1)(3)(ii). The petitioner's descripiion of the job 
duties must clearly dekribe the duties to be perbed by the beneficiary and indicate whether such duties are 
I 
SRC 03 1 14 53458' 
Page 6 I 
either in an exechive; or managerial capacity. Id. The petitioner must specifically sGte whether the 
beneficiary is primarily employed in a managerial or executive capacity. 
Rather than providing a specific descriptior\ of the beneficiary's duties, the petitioner geneilly paraphrased 
the statutory definition of executive capacity. See section 101(a)(44)(B) of the Act, 8 U.S.C. 
§ 1 10 1 (a)(44)(B). For example,. the petitioner indicates that the beneficiary "directs the marlagement of the 
corporation," "has ;the ultimate responsibility to establish goals. and policies of the cotporation," and 
"exercises latitude with regard to discretionary decision-making." However, conclusory asseitions regarding 
the beneficiary's employment capacity are not sufficient to meet the petitioner's burden ofiproof. Merely 
repeating the language of the statute or regulations does not satisfy the petitioner's burden qf proof. Fedin 
Bros. Co., Ltd. v. Suva, 724 F. Supp. 1103, 1108 (E.D.N.Y. 1989). aff'd, 905 F. 26 41 (2d. Gir. 1990); Avyr 
Associates Inc. v. Meissner, i997 WL 188942 at "5 (S.D.N.Y.). 
The remainder of tEe description submitted by the petitioner was brief and vague, providing l@le insight into 
the true nature of the tasks the beneficiary will perform for the U.S. company. For exampl$, the petitioner 
states that the beneficiary's duties include "setting and reviewing corporate objectives,": "directing the 
expense controIs," and "development of business opportunities." The petitioner did not, howtver, define the 
beneficiary's objecti'ves or describe what specific efforts the beneficiary takes to "direct expenpe controls," or 
"develop business." l Going on record without supporting documentary evidence is not suficieht for purposes 
of meeting the burden'of proof in these proceedings.' Matter ofsoflci, 22. I&N Dec. 158, 165 ;(Comrn. 1998) 
(citing Mailer of Treasure Craft of California, 14 I&N Dec. 1'90 (Reg. Comm. 1972).; Reciting the 
beneficiary's vague job responsibilities or broadly-cast business objectives is not sufficient; be regulations 
require a detailed description of the beneficiary's daily job duties. The petitioner has faildd to answer a 
cntical question this case: What does the beneficiary primarily do on a daily basis? Thk actual duties 
themselves will reve~l the tnie nature of ihe employment. Fedin Bros. Co., Ltd. v. Sava, 724 F. ;Supp. at I 108. 
The provided job description does not allow the AAO to determine the actual tasks the benefiiiary performs, 
such that they can beklassified as managerial or executive in nature. 
When examining the'managerial or executive capacity of a beneficiary, Citizenship and Imigiation Services 
(CIS) reviews the tbtality of the record, including descriptions of a beneficiary's duties apld his or her 
subordinate employees, the nature of the petitioner's business, and any other facts contributingl, to a complete 
understanding of a Wneficiary's actual role in a business. The evidence must substantiate thak the duties of 
the beneficiary and his or her subordinates correspond to their placement in an organizatipn's structural 
hierarchy; artificial tiersof subordinate employees and inflated job titles are not probatid and will not 
establish that an organization is sufficiently complex to support an executive or manager bsition. An 
individual whose primary duties are those of a first-line supervisor will not be considered to be acting in a 
managerial capacity merely by virtue of his or her supervisory duties unless the employees dupervised are 
professional. Section IOl{a)(44)fA)(iv) of the Act. 
Although the petrttoner ~ndlcates that the beneficiary "directs the operations of the corporat~on through 
subord~nated managebal and non-managerial personnel,'* the totalrty of the record does not suppn a 
conclusion that the benefic~ary's subordinates are supervisors, managers, or profess~onals. Instead, the record 
md~cates that the ben~'ficiaryvs subordinates perform the actual day-today tasks of operatrng a travel agency. 
SRC 03 114 53458' ' 
Page 7 
The AAO acknowledges the petitioner's submission of a new organ~zational chart on appeal that elevates the 
employee prev~ously identified as "tourism packages coordtnator" to the position of genfral manager, a 
position previously.attributed to the beneficiary. The latest version of the organizational chart also includes a 
full-time employee, 
F 
ho was not previously identified by the petitioner, althoukh the petitioner 
claims that he was ire in April 2002. Although the petitioner asserts that there was simply: an oversight in 
the preparation of the previous chart, the AAO notes that 
- 
oes not appear on.the petitioner's 
Flonda Forms UCT-6, Employer's Quarterly Report, for 2 nor was he mentioned in thk description of 
petitioner's staffing levels provided by the foreign entity in response to the director's request :for evidence. It 
is incumbent uponi the petitioner to resolve any inconsistencies in the record by independenl objective 
evidence. Any attempt to explain or reconcile such inconsistencies will not suffice unles6 the petitioner 
submits coinpetent objective evidence pointing to where the truth lies. Matter ofHo, 19 I&N!D~c.. 582, 591 - 
92 (BlA 1988). The petitioner's unsupported claim that the pkrson who prepared the petitioner's original 
organizational chart "was not knowledgeable of the structure" is not sufficient to establish that the chart 
submitted on appeal is an accurate representation of the petitioner's actual organizational shcture. If CIS 
fails to believe that a fact stated in the petition is true, CIS may reject that fact. See, e.g., Anerekhaz v. I.N.S., 
876 F.2d 1213, 1220 (5th Cir.1989); Lu-Ann Bakery Shop, inc. v. Nelson, 705 F. Supp. 7, 10 (D.D.C.1988); 
Systronics Corp. v. ~NS, 153 F. Supp. 2d 7, 15 (D.D.C. 2001). 
Rather, it appears that the petitioner is attempting to add another level of management to the petitioner's 
structure dn appeal in order to insulate the beneficiary from the appearance of being a first-line! supervisor- On 
appeal, a petitioner cannot offer a new position to the beneficiary, or materially change a position's title, its 
level of authority within the organizational hierarchy, or the associated job responsibilities.)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 COT., 17 I&N Dec. 248, 249 (Reg. Comm. 1978). 
A petitioner may not make material changes to a petition in'an effort to make a deficient petition conform to 
CIS requirements. See Matter oflzummi, 22 I&N Dec. 169, 176 (Assoc. Cornm. 1998). 
The petitioner has not provided evidence of an organizational structure sufficient to elevate thei beneficiary to 
a supervisory position that is higher than a first-line supervisor of non-professional employees. Pursuant to 
section IOl(a)(44)(,+)(iv) of the Act, the beneficiary's position does not qualify as primarily managerial under 
the statutory definitions. I 
Given the indefinite ,description of the beneficiary's job duties and the indiscriminate manna in which the 
petitioning company rearranged its organizational chart, the petitioner has not established that the beficiary is to 
be employed in a primarily managerial or executive position. The description of the duties to be performed by the 
beneficiary in the proposed position does not persuasively demonstrate that. the beneficiary will have managerial 
control and authority over a hction, department, subdivision or component of the company. Further, the record 
does not sufficiently demonstrate that the beneficiary will manage a subordinate staff of professionbl, managerial, 
or supervisory personnel who will relieve her from performing nonqualifymg duties, or that the beneficiary will 
function at a senior level withn an organizational hierarchy, other than in job title. In the instaht matter, the 
petitloner has 'not reached the point that it can employ the beneficiary in a pri&arily managerial or executive 
position. For this reason, the appeal will be dismissed. I. 
SRC03 114 53458, 
Page 8 
The second issue in,this matter is whether the petitioner has established that it has been doing business for the 
year preceding the filing of the petition as required by 8 C .F.R. 5 2 14.2(1)(14)(B). 
The regulation at 8 C.F.R.4 214.2(1)(l)(ii)(H) states: "Doing business means the regular, systematic, and 
continuous provision of goods andor services by a qualifying organization and does not include the mere 
presence of an aged or office of the qualifying organizatjon in the United States and abroad." 
The petitioner mustitherefore establish,that the U.S. company has been doing business since the approval of 
the initial "new office" petition on March 27, 2002. In support of the initial petition, the petitioner submitted, 
in part, copies of nine invoices for airline t~ckets sold between October and December 2002, a Florida Seller 
of Travel License that expired on March 18, 2003, an expired commerciaI lease made between the petitloner 
and "" and its 2002 IRS Form 1120, U.S. Corporat~on Income Tax Return showing gross 
receipts of $458,352. 
In her request for evidence, the director noted that the pet~t~oner's lease agreement expired on March 14,2003 
and requested a copy of a valid agreement. The dlrector also requested photographs of the U.S. ent~ty's 
premlses ~llustrahng the outside of the building, the outside of the part~cular office, and the intenor of the 
office. In response, 'the petitioner submitted photographs and a new lease agreement made between the 
petlt~oner and for the same locat~on, valid from March 15, 2003 to March 14, 2004. The 
photographs show the storefront for 7-wlth a small sign identifying the pettttmer's name on 
the door. 
The dlrector denled the petition concluding that the petitioner failed to submit evidence that U.S. company 
had been doing business for one year. 
On appeal, the petitioner submits copies of invoices and payment receipts, evidence of commissions paid to 
the U.S. company by travel service providers, comrnerctal reference letters, and other documents in support of 
3ts assertion that the U.S. company had been doing buslness for the previous year at the time the petition was 
fiIed. 
Upon review, the petitioner's assertions are persuasive. The AAO notes that the initial filing did not include 
sufficient evidence to ptablish that the petitioner had been doing business for the previous year as required by 
8 C.F.R. 214.2(1)(14)(B). However, before denying the petition on these grounds, the director should have 
first requested additiopal documentation pursuant to 8 C.F.R. $ 103.20>)(8). Furthermore, as noted above, 
when denying a petition, a director has an affirmative duty to explain the specific reasons for the denial; this 
duty includes informing a petitioner why the evidence failed to satisfy its burden of proof pursuant to section 
291 of the Act, 8 U.S.C. 5 1361. See 8 C.F.R. 9 103.3(a)(l)(i). In her May 16, 2003 decision; the director 
merely concluded that the petitioner was not doing business without specifically addressing the deficiencies in 
the evidence submitted'. Accordingly, the AAO will consider the newiy submitted evidence. 
The documents submibed on appeal are sufficient to establish that the petitioner was doing business as a 
travel agency during the year pr~ding the filing of thspstiGon. Accordingly, the director's determination 
with respect to this issue only will be withdrawn. 
SRC 03 114 53458' 
Page 9 
I 
In vlsa petition proceedings, the burden of provlng eligibtlity for the benefit sought remalns entirely wrth the 
petitioner. Section 291 of the Act, 8 U.S.C. $ 1361. Here, that burden has not been met. 
ORDER. The appeal is dismissed.