dismissed L-1A Case: Video Production

U.S. Department of Homeland Security 
20 Mass. Ave., N.W., lim. A3042 
Washington, DC 20529 
d&-b U. S. Citizenship 
prerPldM~me and Immigration 
Lndolld~rM~m Services 
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section lOl(a)(15)(L) of the 
Immigration and Nationality Act, 8 U.S.C. 5 1101(a)(15)(L) 
ON BEHALF OF PETITIONER: 
SELF-REPRESENTED 
INSTKUCTIONS: 
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. 
'2% R ert P. iemann, -75 Director 
X 
Administrative Appeals office/ 
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Page 2 
DISCUSSION: The nonimmigrant visa petition was denied by the Director, California Service 
Center, and is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be 
dismissed. 
The petitioner,, endeavors to classify the beneficiary as a 
manager or executive pursuant to section 101(a)(15)(L) of the 
.C. 5 1101(a)(15)(L). The petitioner is an affiliate o 
cated in South Africa and is engaged in the business of producing videos. It 
e petition's validity and the beneficiary's stay for three years as the U.S. 
entity's president. The petitioner was incorporated in the State of Hawaii in November 1996 and 
claims to have three employees. 
On May 28, 2002, the director denied the petition. The director determined that the beneficiary 
will not be employed in a primarily managerial or executive capacity. 
On appeal, the petitioner states that the beneficiary will direct and manage the company. 
To establish L-1 eligibility under section 101(a)(15)(L) of the Immigration and Nationality Act (the 
Act), 8 U.S.C. 5 1101(a)(15)(L), the petitioner must meet certain criteria. Specifically, within three 
years preceding the beneficiary's application for admission into the United States, 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. Furthermore, 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. 
In relevant part, the regulations at 8 C.F.R. 5 2 14.2(1)(14)(3) state 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 (l)(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. 
Pursuant to 8 C.F.R. 3 214.2(1)(14)(i), if the petitioner is filing a petition to extend the 
beneficiary's stay for L-1 classification, the regulation requires: 
(i) The petitioner shall file a petition extension on Form 1-129 to extend an 
individual petition under section 101(a)(15)(L) of the Act. Except in those 
petitions involving new offices, supporting documentation is not required, unless 
requested by the director. A petition extension may be filed only if the validity 
of the original petition has not expired. 
WAC 02 089 5055 1 
Page 3 
The issue in this proceeding is whether the beneficiary will be employed in the United States in a 
primarily managerial or executive capacity. 
The term "managerial capacity" means an assignment within an organization in which the employee 
primarily- 
1. manages the organization, or a department, subdivision, function, or 
component of the organization; 
11. 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; 
... 
111. 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-today 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. 3 1 101(a)(44)(B), provides: 
The term "executive capacity" means 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; 
. . 
11. establishes the goals and policies of the organization, component, or 
function; 
... 
111. 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. 
On January 15, 2002, the petitioner filed Form 1-129. On Form 1-129, the petitioner described the 
beneficiary's U.S. duties as "president-sets policy, hires staff; exercises full operating authority." 
Additionally, the petitioner described the beneficiary's U.S. duties in a January 8,2002 supporting 
letter as: 
' 
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[The beneficiary] is responsible for the day-to-day direction of the management of the 
company and video production projects by negotiating financing and contracts, hiring 
and firing employees, and generally setting procedures and goals to operate the business. 
He has complete day[-]to[-]day discretion over the business. 
On February 7, 2002, the director requested additional evidence. In particular, the director 
requested: 1) a copy of the U.S. business's organizational chart; 2) a detailed description of the 
beneficiary's U.S. duties; 3) the beneficiary's subordinates' job titles and position descriptions; 
and, 4) the percentage of time spent in each of the listed duties. 
In response to the request for additional evidence, the petitioner submitted an April 20, 2002 
letter reiterating the beneficiary's duties. The letter also stated, "Within [the] final 3 -year period 
[the beneficiary] will be appointing a management team to handle affairs when he returns to 
South Africa. Also, he will be setting up and training a mainland USA team in Florida." 
On May 28, 2002, the director denied the petition. The director found that the petitioner had not 
submitted a comprehensive description of the beneficiary's daily activities that established the 
beneficiary would be primarily engaged in managing or directing the management of a function, 
department, subdivision, or component of the company. 
On appeal, the petitioner claims that the beneficiary manages the company. The petitioner describes 
the beneficiary's U.S. duties as: 
The Beneficiary: 
Manages the company and production contracts by negotiating financing. 
Contracts and hiring people and companies to produce and distribute movies. 
Directs and coordinates through the subordinate product and sales managers the 
activities in developing potential production videos, in engaging photographs 
and people to be in the video, in contacting companies to distribute the videos. 
Reviews and analyzes reports, records and directives and confers with 
subordinates to obtain information required for planning activities such as new 
commitments for production, advertising, product distribution, status of sales in 
progress and problems encountered. 
Assigns or delegates responsibility for specified work or functional activities 
and disseminates policy to subordinate managers. 
Gives work direction to managers, resolves problems, prepares schedules and 
sets deadlines to ensure timely completion of work. 
Coordinates activities of production and marketing with related activities to 
ensure efficiency and economy. 
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Page 5 
Monitors and analyzes cost and budget. 
Initiates or authorizes employee hire, promotion, discharge or transfer. 
Uses independent contractors, either companies or individuals for 
production and marketing. 
Additionally, the petitioner describes the sales manager and production manager's duties as: 
Sales Manager: 
Negotiates video distribution contracts; 
Develops marketing channels for video production; and 
Performs marketing studies, analyzes sales data, and resolves marketing issues. 
Production Manager: 
Locates the production people such as camera and actors; 
Establishes the shooting location; 
Creates production schedule and budget; and 
Contracts for packaging and graphics as well as magazine advertising. 
In 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. 5 214.2(1)(3)(ii). On review, the 
petitioner has provided a vague and nonspecific description of the beneficiary's duties that fails to 
establish what the beneficiary does on a day-to-day basis. For example, the beneficiary's duties 
are described as "giving work direction to managers, exercising full operating authority, setting 
procedures and goals to operate the business, and disseminating policy to subordinate managers." 
The petitioner did not, however, define the beneficiary's goals, policies, or procedures. Going on 
record without supporting documentary evidence is not sufficient for purposes of meeting the 
burden of proof in these proceedings. Matter of Treasure Craft of California, 14 I&N Dec. 190 
(Reg. Cornm. 1972). 
In addition, the petitioner describes the beneficiary's U.S. duties as "negotiating financing and 
contracts, coordinating production activities, and marketing." Since the beneficiary actually 
negotiates the contracts, he is performing a task necessary to provide a service or product. 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 (Cornrn. 1988). 
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Further, the beneficiary is described as having "complete day-to-day discretion over the business." 
However, the petitioner has failed to establish any clear distinctions between the proposed 
qualifying and nonqualifying duties of the beneficiary. The petitioner submitted no information, 
as requested by the director, to establish the percentage of time the beneficiary actually performs 
the claimed managerial duties. As stated in the statute, the beneficiary must be primarily 
performing duties that are managerial or executive. See sections 101(a)(44)(A) and (B) of the Act. 
The petitioner bears the burden of documenting what portion of the beneficiary's duties will be 
managerial or executive and what proportion will be non-managerial or non-executive. Republic 
of Transkei v. INS, 923 F.2d 175, 177 (D.C. Cir. 1991). Given the lack of these percentages, the 
record does not demonstrate that the beneficiary will function primarily as a manager or 
executive. 
Moreover, the record does not sufficiently demonstrate that the beneficiary will manage a 
subordinate staff of professional, managerial, or supervisory personnel. On appeal, the petitioner 
states, "[The beneficiary] gives work direction to managers." The U.S. organizational chart indicates 
that the beneficiary's subordinates include a sales manager and production manager. Although the 
petitioner claims that the organizational chart excludes subcontractors as camera operators or 3-11 
designers and part-time students, the petitioner has neither presented evidence to document the 
existence of these employees nor identified the services these individuals provide. Again, without 
documentary evidence to support its statements, the petitioner does not meet its burden of proof in 
these proceedings. Matter of Treasure Craji of Cali$omia, 14 I&N at 190. 
In evaluating whether the beneficiary manages professional employees, the AAO must evaluate 
whether the subordinate positions require a baccalaureate degree as a minimum for entry into the 
field of endeavor. Section 101(a)(32) of the Act, 8 U.S.C. 5 1101(a)(32), states that "[tlhe term 
profession shall include but not be limited to architects, engineers, lawyers, physicians, surgeons, and 
teachers in elementary or secondary schools, colleges, academies, or seminaries." The term 
"profession" contemplates knowledge or learning, not merely slull, of an advanced type in a given 
field gained by a prolonged course of specialized instruction and study of at least baccalaureate level, 
which is a realistic prerequisite to entry into the particular field of endeavor. Matter of Sea, 19 I&N 
Dec. 817 (Cornrn. 1988); Matter of Ling, 13 I&N Dec. 35 (R.C. 1968); Matter ofshin, 11 I&N Dec. 
686 (D.D. 1966). There is no evidence that the sales manager and production manager positions 
require college graduates. The petitioner has not established that the two employees are professional 
employees within the statutory and regulatory definitions. Therefore, the description of the 
beneficiary's job duties and the job duties of the beneficiary's subordinates lead the AAO to 
conclude that the beneficiary is performing as a first-line supervisor of non-professional employees, 
rather than as a manager or executive. As stated in the Act, "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)(A)(iv) of the Act. 
After careful consideration of the evidence, the AAO concludes that the beneficiary will not be 
employed in a primarily managerial or executive capacity. For this reason, the petition may not be 
approved. 
Beyond the decision of the director, the AAO notes some discrepancies in the record concerning 
the qualifying relationship between the petitioner and foreign entity. On Form 1-129, the 
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petitioner claims that the U.S. entity is an affiliate of the foreign company. The petitioner claims 
that the beneficiary and his wife each own 50 percent of the shares of both companies. However, 
the 2000 U.S. Corporation Income Tax Form 1120, Schedule K shows that there is only one 
foreign person that owns, directly or indirectly at least 25 percent of the voting power of all 
classes of stock or the total value of all classes of stock of the corporation and that this foreign 
person owned 100 percent of the U.S. company. However, the 2000 Corporation Income Tax 
Form 1120, Schedule E shows that the beneficiary does not own any percentage of common or 
preferred stock of the corporation. In addition, the petitioner submitted stock certificates showing 
that the beneficiary owns 50 shares of the U.S. company, the beneficiary's wife owns 25 shares of 
the U.S. company, and thawns 25 shares of the U.S. company. 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). 
Further, the record indicates that the petitioning enterprise does not maintain a qualifying 
"affiliate" relationship with the overseas company. The evidence is insufficient to determine who 
owns the petitioner and foreign entity. Accordingly, it is unclear whether the two entities are 
"owned and controlled by the same group of individuals, each individual owning controlling 
approximately the same share or proportion of each entity . . . ." 8 C.F.R. $ 
214.2(l)(l)(ii)(L)(2)(emphasis added). In addition, there is no parent entity with ownership and 
control of both companies that would qualify the two as affiliates. Although the petitioner claims 
on Form 1-129 that the petitioning company and the overseas company are majority owned by the 
husband and wife due to the spousal relationship, this familial relationship does not constitute a 
qualifying relationship under the regulations. 
Moreover, on February 7, 2002, the director requested additional evidence concerning the 
qualifying relationship. The director requested evidence such as an annual report, minutes of the 
foreign company's meeting, a list of owners, and the foreign entity's articles of incorporation. hl 
response to the request for additional evidence, the petitioner submitted an April 20, 2002 
supporting letter claiming that the of the foreign entity; his wife 
owns 25 percent of the foreign entity; and wns 25 percent of the foreign entity. 
The petitioner also submitted a copy entity; however, the minutes do 
not list the stock shareholders or the number and percentage of shares owned. Going on record 
without supporting documentary evidence is not sufficient for purposes of meeting the burden of 
proof in these proceedings. Matter of Treasure Craft of Califorrzia, 14 I&N at 190. Absent 
documentary evidence such as voting proxies or agreements to vote in concert so as to establish a 
controlling interest, the petitioner has not established that the same legal entity or individuals 
control both entities. Thus, the companies are not affiliates as it is unclear whether both 
companies are owned and controlled by the same individuals. Based on the contradictory and 
minimal documentation submitted, it is concluded that the petitioner has not established that a 
qualifying relationship exists between the U.S. and foreign organizations. For this additional 
reason, the petition may not be approved. 
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 
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the initial decision. See Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d 1025, 1043 
(E.D. Cal. 2001), afd. 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). 
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. Accordingly, the appeal will be dismissed. 
ORDER: The appeal is dismissed.