dismissed L-1A Case: Travel Agency

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pmvent dearly unwamted 
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U.S. Department of Homeland Security 
20 Massachusetts Avle., N.W., Rm. A3042 
Wash~ngton, DC 20q29 
File: SRC 03 1 14 53458 Office: 'TEXAS SERVICE CENTER Date: NO)( 0 2@5 i 
Petition: Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(15)(L) of the I migration 
and Nationality Act, 8 U.S.C. $ 1 10 1 (a)(15)(L) m 
IN BEHALF OF PETITIONER: 
I 
SELF-REPRESENTED 1 
INSTRUCTIONS: 1 
This is the decision of the Administrative Appeals Office in your case. All documents have be 
the office that originally decided your case. Any further inquiry must be made to that office. 
Robert P. Wiernann, dector 
Administrative Appeals Office 
SRC 03 1 14 53458 
Page 2 
DISCUSSION: The Director, Texas Service Center, denied the petition for a nonimmigrant 
is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be 
The petitioner filed this nonimmigrant petition seeking to extend the employment of its 
nonimmigrant intracompany transferee pursuant to section 101 (a)(15)(L) of the 
Act (the Act), 8 U.S.C. 9 1101(a)(15)(L). The petitioner is a corporation 
operates a travel agency. The petitioner claims that it is the subsidiary of 
located in Caracas, Venezuela. The beneficiary was initially granted a 
in order to open a new office in the United States, and the petitioner 
year period. 
The director denied the petition concluding that the petitioner did not establish that: (1) the 
be employed in the United States in a primarily managerial or executive capacity; or (2) 
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 
forwarded the appeal to the AAO for review. On appeal, the petitioner provides a new 
and submits additional evidence to establish that the U.S. company has been doing 
claims that the beneficiary is eligible for an extension of status based upon this 
To establish eligibility for the L-1 nonimmigrant visa classification, the petitioner must 
outlined in section 101(a)(15)(L) of the Act. Specifically, a qualifying organization must 
beneficiary in a qualifying managerial or executive capacity, or in a specialized 
continuous year within three years preceding the beneficiary's application 
States. In addition, the beneficiary must seek to enter the United States 
or her services to the same employer or a subsidiary or affiliate 
specialized knowledge capacity. 
The regulation at 8 C.F.R. 5 214.2(1)(3) states that an individual petition filed on Form -129 shall be 
accompanied by: I 
(i) Evidence that the petitioner and the organization which employed or will empl 
alien are qualifying organizations as defined in paragraph (l)(l)(ii)(G) of this se 
(ii) Evidence that the alien will be employed in an executive, managerial, or 
knowledge capacity, including a detailed description of the services to be 
(iii) Evidence that the alien has at least one continuous year of full time emplo 
abroad with a qualifying organization within the three years preceding the 
the petition. 
(iv) Evidence that the alien's prior year of employment abroad was in a position tha was 
managerial, executive or involved specialized knowledge and that the alien's rior b 
SRC 03 114 53458 
Page 3 
education, training, and employment qualifies himher to perform the 
services in the United States; however, the work in the United States need n 
same work which the alien performed abroad. 
The regulation at 8 C.F.R. fj 214.2(1)(14)(ii) also.provides that a visa petition, which involved he opening of a 
new office, may be extended by filing a new Form 1-129, accompanied by the following: 1 
(A) Evidence that the United States and foreign entities are still qualifying organ zations 
as defined in paragraph (I)(l)(ii)(G) of this section; 1 
(B) Evidence that the United States entity has been doing business as de 
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 
duties the beneficiary will perform under the extended petition; 
(D) A statement describing the staffing of the new operation, including the nu 
employees and types of positions held accompanied by evidence of wages 
employees when the beneficiary will be employed in a managerial or 
capacity; and 
(E) Evidence of the financial status of the United States operation. 1 
The first issue in the present matter is whether the beneficiary will be employed by the United 
a managerial or executive capacity. 
Section 101(a)(44)(A) of the Act, 8 U.S.C. fj 1101(a)(44)(A), defines the term "managerial c pacity" as an 
assignment within an organization in which the employee primarily: a 
(i) manages the organization, or a department, subdivision, function, or compo 
the organization; 
(ii) supervises and controls the work of other supervisory, professional, or man 
employees, or manages an essential function within the organization, or a 
or subdivision of the organization; 
(iii) if another employee or other employees are directly supervised, has the autho ity to 
hire and fire or recommend those as well as other personnel actions (su h as 
promotion and leave authorization), or if no other employee is directly supe ised, 
functions at a senior level within the organizational hierarchy or with respect o the 
function managed; and I 
SRC 03 114 53458 
Page 4 
(iv) exercises discretion over the day to day operations of the activity or 
which the employee has authority. A first line supervisor is not 
acting in a managerial capacity merely by virtue of the 
duties unless the employees supervised are professional. 
On March 26, 2003, the director requested additional evidence. In part, the director 
organizational chart including its employees' names, positions, start date with the 
employees are employed on a full-time or part-time basis. The director also 
evidence establishing that the beneficiary is to be employed in an 
director noted that the petitioner's statement must provide the 
or other employees who report directly to the beneficiary and a 
The petition was submitted on March 14, 2003. The petitioner indicated on Form 1-129 that 
would serve as president responsible for the "overall management of the corporation," and 
three individuals. The petitioner submitted a letter dated March 9, 2003, but did not include 
the beneficiary's job duties. In addition, the petitioner provided an organizational chart depic 
a general manager, a marketing employee, a subcontracted accountant, a tourism packages 
overseeing cruises and ground packages, and a ticket sales employee overseeing national 
tourism. Finally, the petitioner submitted its Florida Fonns UCT-6, Employer's Quarterly 
two quarters of 2002, which show four employees in each quarter. 
In a response received on May 5, 2003, the petitioner provided a letter from the foreign ent 
who provided the following description of the beneficiary's duties: . 
the beneficiary 
claimed to employ 
a description of 
ing a president, 
coordinator 
arid international 
Report, for the last 
[H]e directs the management of the corporation, he is directly responsible for all 
the corporation. [The beneficiary] directs the operations of the 
subordinated managerial and non-managerial personnel. . . .he has 
report directly to him, they are: 
who is in charge of the Ticket Sales department, his task is to 
airline tickets at national and international levels, 
hotels and cars for leasing and to provide customers information about documentation eeded 
for international trips. n 
2. Mr. ho is in charge of the coordination of tourism packages, his 
to coordinate tourist packages for summer camps, winter events and singles 
coordinate events and conventions, special tour packages for students and adults accord ng to 
age and interest and be able to offer the adequate cruise according to the customer needs 
i - 
3. Mrs. who is in charge of the marketing aspect of our 
and marketing plans to offer our products like 
airline tickets, cruises, hotel and auto reservations ensuring that qualify control 
enforced and the services satisfied clients' standards. 
SRC 03 114 53458 
Page 5 
In addition [the beneficiary] conducts and controls all operations and strategic man gement 
activities of [the petitioner] in the United States, these [sic] includes setting and re iewing 
corporate objectives; supervise marketing coordinator, sales and purchasing; direc ing the 
expense controls of the corporation, including outsourcing services, personnel ev luation, 
periodic review of financial statements and analysis of corporation; development of usiness 
opportunities and review the progress and performance of the U.S. corporation. 1 
[The beneficiary] has ultimate responsibility to establish goals and policies of the co 
in all areas and he exercises latitude with regard to discretionary decision-making. 
In this executive position [the beneficiary] through subordinated managerial pe sonnel 
ensures that [the petitioner] delivers and maintains the highest quality of services prov ded by 
our corporation. 
i 
The petitioner submitted a new organizational chart showing the beneficiary as president and g 
and depicting the organizational structure described in the foreign entity's letter. The chart in 
ticket sales employee and tourism packages coordinator are employed full-time, while 
employee works part-time. 
The director denied the petition on May 16, 2003 concluding that the petitioner did not subm 
the beneficiary would be employed in a managerial or executive capacity. 
On appeal, the petitioner asserts that the beneficiary's position "is of a managerial and 
petitioner submits a new organizational chart and claims that the person who prepared 
not have the knowledge of that chart depicts Joseph Bodner in the 
manager and a different individual, in the position of tourism 
position previously attributed to Joseph Bodner. The chart indicates tha 
time basis in April 2002. The petitioner also re-submits copies of its 
Quarterly Report, for the last two quarters of 2002. 1 
Upon review, the petitioner's assertions are not persuasive. As a preliminary matter, however, 
that the director failed to address the specific deficiencies in the petitioner's evidence in her d 
the petition. When denying a petition, a director has an affirmative duty to explain the specific 
denial; this duty includes informing a petitioner why the evidence failed to satisfy its burden 
to section 29 1 of the Act, 8 U.S.C. tj 1361. See 8 C.F.R. fj 103.3(a)(l)(i). The reasons 
the directors May 16, 2003 decision are conclusory with no specific references to the 
the record. As the AAO's review is conducted on a de novo basis the AAO will herein 
evidence & eligibility. See Dor v. INS, 891 F.2d 997, 1002 n. 9 (2d Cir. 1989). 
When examining the executive or managerial capacity of the beneficiary, the AAO will lo 
petitioner's description of the job duties. See 8 C.F.R. 3 214.2(1)(3)(ii). The petitioner's 
duties must clearly describe the duties to be performed by the beneficiary and indicate 
SRC 03 1 14 53458 
Page 6 
either in an executive or managerial capacity. Id. The petitioner must specifically st 
beneficiary is primarily employed in a managerial or executive capacity. 
Rather than providing a specific description of the beneficiary's duties, the petitioner gener 
the statutory definition of executive capacity. See section 101(a)(44)(B) of the 
9 1101(a)(44)(B). For example, the petitioner indicates that the beneficiary "directs the 
corporation," "has the ultimate responsibility to establish goals and policies of the 
"exercises latitude with regard to discretionary decision-making." However, conclusory 
the beneficiary's employment capacity are not sufficient to meet the petitioner's 
repeating the language of the statute or regulations does not satisfy the 
Bros. Co., Ltd. v. Sava, 724 F. Supp. 1 103, 1 108 (E.D.N.Y. 1989), 
Associates Inc. v. Meissner, 1997 WL 188942 at *5 (S.D.N.Y.). 
The remainder of the description submitted by the petitioner was brief and vague, providing 
the true nature of the tasks the beneficiary will perform for the U.S. company. For examp 
states that the beneficiary's duties include "setting and reviewing corporate objectives, 
expense controls," and "development of business opportunities." The petitioner did not, ho 
beneficiary's objectives or describe what specific efforts the beneficiary takes to "direct exp 
"develop business." Going on record without supporting documentary evidence is not suffi 
of meeting the burden of proof in these proceedings. Matter of Sof$ci, 22 I&N Dec. 158, 1 
(citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comrn. 197 
beneficiary's vague job responsibilities or broadly-cast business objectives is not suffici 
require a detailed description of the beneficiary's daily job duties. The petitioner has 
critical question in this case: What does the beneficiary primarily do on a daily basis? 
themselves will reveal the true nature of the employment. Fedin Bros. Co., Ltd. v. Sava, 7 
The provided job description does not allow the AAO to determine the actual tasks the b 
such that they can be classified as managerial or executive in nature. 
When examining the managerial or executive capacity of a beneficiary, Citizenship and Imm 
(CIS) reviews the totality of the record, including descriptions of a beneficiary's dutie 
subordinate employees, the nature of the petitioner's business, and any other facts contribut 
understanding of a beneficiary's actual role in a business. The evidence must substantiate 
the beneficiary and his or her subordinates correspond to their placement in an organi 
hierarchy; artificial tiers of subordinate employees and inflated job titles are not prob 
establish that an organization is sufficiently complex to support an executive or man 
individual whose primary duties are those of a first-line supervisor will not be conside 
managerial capacity merely by virtue of his or her supervisory duties unless the empl 
professional. Section 10 1 (a)(44)(A)(iv) of the Act. 
Although the petitioner indicates that the beneficiary "directs the operations of the 
subordinated managerial and non-managerial personnel," the totality of the record 
conclusion that the beneficiary's subordinates are supervisors, managers, or 
indicates that the beneficiary's subordinates perform the actual day-to-day 
SRC 03 114 53458 
Page 7 
The AAO acknowledges the petitioner's submission of a new organizational chart on appeal 
employee previously identified as "tourism packages coordinator" to the position of gen 
position previously attributed to the beneficiary. The latest version of the organizational 
full-time employee, who was not previously identified by the petitioner, 
claims that he was hired in April 2002. Although the petitioner asserts that there was 
the preparation of the previous chart, the AAO notes that oes not 
Florida Forms UCT-6, Employer's Quarterly Report, for 2002, nor was he 
petitioner's staffing levels provided by the foreign entity in response to the director's request for evidence. It 
is incumbent upon the petitioner to resolve any inconsistencies in the record by indepe dent objective 
evidence. Any attempt to explain or reconcile such inconsistencies will not suffice unles the petitioner 
submits competent objective evidence pointing to where the truth lies. Matter of Ho, 19 I&N Dec. 582, 591- 
92 (BIA 1988). The petitioner's unsupported claim that the person who prepared the petit'oner's original 
organizational chart "was not knowledgeable of the structure" is not sufficient to establis that the chart 
submitted on appeal is an accurate representation of the petitioner's actual organizational s cture. If CIS 
fails to believe that a fact stated in the petition is true, CIS may reject that fact. See, e.g., Ane ekhai v. I.N.S., 
876 F.2d 1218, 1220 (5th Cir.1989); Lu-Ann Bakery Shop, Inc. v. Nelson, 705 F. Supp. 7, 1 (D.D.C.1988); 
Systronics Corp. v. INS, 153 F. Supp. 2d 7, 15 (D.D.C. 2001). 1 
The petitioner has not provided evidence of an organizational structure sufficient to elevate th 
a supervisory position that is higher than a first-line supervisor of non-professional 
section 101(a)(44)(A)(iv) of the Act, the beneficiary's position does not qualify as 
the statutory definitions. 
Rather, it appears that the petitioner is attempting to add another level of management to 
structure on appeal in order to insulate the beneficiary from the appearance of being a first-line 
appeal, a petitioner cannot offer a new position to the beneficiary, or materially change a 
level of authority within the organizational hierarchy, or the associated job responsibilities. 
must establish that the position offered to the beneficiary when the petition was filed merits 
managerial or executive position. Matter of Michelin Tire Coy., 17 I&N Dec. 248, 249 (Reg. 
A petitioner may not make material changes to a petition in an effort to make a deficient petit-.on 
CIS requirements. See Matter oflzummi, 22 I&N Dec. 169, 176 (Assoc. Comm. 1998). 
Given the indefinite description of the beneficiary's job duties and the indiscriminate 
petitioning company rearranged its organizational chart, the petitioner has not established 
be employed in a primarily managerial or executive position. The description of the 
beneficiary in the proposed position does not persuasively demonstrate that the 
control and authority over a function, department, subdivision or component of 
does not sufficiently demonstrate that the beneficiary will manage a subordinate 
or supervisory personnel who will relieve her from performing non-qualifjmg 
function at a senior level within an organizational hierarchy, other than in 
petitioner has not reached the point that it can employ the beneficiary in a 
position. For this reason, the appeal will be dismissed. 
.:he petitioner's 
supervisor. On 
po~ition's title, its 
The petitioner 
classification as a 
Comm. 1978). 
conform to 
SRC 03 114 53458 
Page 8 
The second issue in this matter is whether the petitioner has established that it has been doing 
year preceding the filing of the petition as required by 8 C.F.R. 5 214.2(1)(14)(B). 
The regulation at 8 C.F.R.5 214.2(1)(l)(ii)(H) states: "Doing business means the regular, 
continuous provision of goods and/or services by a qualifying organization and does not i 
presence of an agent or office of the qualifying organization in the United States and abroad." 
The petitioner must therefore establish that the U.S. company has been doing business since 
the initial "new office" petition on March 27, 2002. In support of the initial petition, the petiti 
in part, copies of nine invoices for airline tickets sold between October and December 2002, 
of Travel License that expired on March 18, 2003, an expired commercial lease made 
and "Telexpress World," and its 2002 IRS Fonn 1120, U.S. Corporation Income Tax 
receipts of $458,352. 
In her request for evidence, the director noted that the petitioner's lease agreement expired on arch 14,2003 
and requested a copy of a valid agreement. The director also requested photographs of th US. entity's 
premises illustrating the outside of the building, the outside of the particular office, and the interior of the 
office. In response, the petitioner submitted photographs and a new lease agreement mad between the 
petitioner and Telexpress World for the same location, valid from March 15, 2003 to March 14, 2004. The 
photographs show the storefront for Telexpress World, with a small sign identifying the petiti er's name on 
the door. i 
The director denied the petition concluding that the petitioner failed to submit evidence that 
had been doing business for one year. 
On appeal, the petitioner submits copies of invoices and payment receipts, evidence of commi sions paid to 
the U.S. company by travel service providers, commercial reference letters, and other document in support of 
its assertion that the U.S. company had been doing business for the previous year at the time th petition was 
filed. 1 
Upon review, the petitioner's assertions are persuasive. The AAO notes that the initial filing 
sufficient evidence to establish that the petitioner had been doing business for the previous 
8 C.F.R. 9 214.2(1)(14)(B). However, before denying the petition on these grounds, the 
first requested additional documentation pursuant to 8 C.F.R. 9 103.2(b)(8). 
when denying a petition, a director has an affirmative duty to explain the 
duty includes informing a petitioner why the evidence failed to satisfy its 
291 of the Act, 8 U.S.C. 3 1361. See 8 C.F.R. 3 103.3(a)(l)(i). In her 
merely concluded that the petitioner was not doing business without 
the evidence submitted. Accordingly, the AAO will consider the newly submitted evidence. 
The documents submitted on appeal are sufficient to establish that the petitioner was doing usiness as a 
travel agency during the year preceding the filing of the petition. Accordingly, the director's d termination 
with respect to this issue only will be withdrawn. '1 
SRC 03 114 53458 
Page 9 
In visa petition proceedings, the burden of proving eligibility for the benefit sought remains 
petitioner. Section 291 of the Act, 8 U.S.C. 9 1361. Here, that burden has not been met. 
ORDER: The appeal is dismissed. 
ltirely with the