dismissed L-1A Case: Web Design And Advertising

U.S. Depaitment of Homeland Security 
20 Mass. Ave. N.W., Rm. A3042 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
FILE: office: CALIFORNIA SERVICE CENTER  ate: JUN .I 6 2005 
INSTRUCTIONS : 
PETITION: Petitlon for a Nonirnmigant Worker Pursuant to Section 10 1 (a)(lS)(L) of the 
Immigration and Natioi~ality Act, 8 U.S.C. 5 1 lOl(a)(lS)(L) 
This is the decislon of the Adsnlnlstratlve Appeals Office in your case. All documents have been 
returned to the office that originally declded your case. Any further inquiry must be made to that 
office. 
Page 2 
DISCUSSION: The nonimrnigrant 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 petltloner, Tech IQ Corporation dba claims that it is a branch of - 
located in the Philippines. The petltioner is a company engaged In the interaction technology, 
webslte design, and advertising busmess. The U.S. entlty was Incorporated in the State of 
Defaware 3~ Janu:~ly 2002 and clairns to have five employees. The petltioner seeks to hire the 
beneficiary as a new employee to work m ~ts new U.S. office. Accord~ngly, m June 2002, the U.S. 
enhty petltloned Cltlzenshlp and Irnmlgratlon Services (CIS) to classlfy the beneficiary as a 
nonimm~grant lntracompany transferee (L-1A) pursuant to sectton lOl(a)(lS)(L) of the 
Immigration and Nationality Act (the Act), 8 U.S.C. § 1 10 1 (a)(15)(L). The petitioner endeavors 
to employ the beneficiary as the L1.S. entity's creative art director for a one-year penod at an 
annual salary of $40,000. 
On March 13, 2083, the director denied the petition. The director determined that the petitioner 
failed to establish that I) the beneficiary has been or will be employed in a primarily,manageriaI 
or executive capacity; 2) the petitioner has sufficient physical premises to house the new office; 
and,, 3) a qualifjring relationship exists between the petitioner and foreign entity. 
On appeal, the petlt~oner's counsel claims that the beneficiary has been and will be employed in a 
managenal or executlve posltlon. Counsel also clalms that the petltioner has established a 
qualifying relationship with.the foreign entity and subm~ts a copy of the petitioner's new lease 
agreement. Counsel submlts a bnef and additional documentation m support of the appeal. 
To establish L-l eligibility under section 101(a)(15)(L) of the Immigration and Nationality Act 
(the Act), 8 U.S.C. $ 1101(a)(l5)(L), the petitioner must meet certain criteria. Specifically, within 
three years precedii~g the benetikiary's application for admission into the United States, a 
qualifying organization must have employed the beneficiary in 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. 
Pursuant to 8 C.F.R. $ 214.2(1)(3), an lndivtdual pet~tion filed on Form 1-129 shall be 
accompanied by: 
(1) Evldc nee that thr petltloner and the organlzat~on which employed or will 
cmploy the allen are qualifLlng organizations as deiined in paragraph (l)(l)(n)(G) 
of thls sectlon; 
(11) Ev~dence that the allen will be employed in an executlve, managenal, or 
speclallzed knowledge capacity, mclud~ng a detailed descnpt~on of the services 
to be performed. 
Page 3 
(111) Evldence that the allen has at least one contlnuous year of full-time 
employment abroad wth a qualtfylng organization wlthln the three years 
preced~ng the filing of the petition. 
(IV) Evidence that the alien's prior year of employment abroad was in a 
pos~tlon that was managerial, execut~ve, or ~nvolved specialized knowledge and 
that the alien's prior education, training, and employment qualifies hider to 
perform tbc intended servlces in the United States; however, the work In the 
I Un~ted States need not be the same work which the alien performed abroad. 
(v) IF the petit~on rndicates that the benefic~ary 1s coming to the United 
States as a manager or elcecutlve to open or to be employed in a new office m the 
United States, the pet~t~oner shall subm~t evidence that: 
(A) Sufficient physical premlses to house the new office have been 
secured; 
(R: The beneficiary has been employed for one contlnuous year In the 
three year penod preceding the filmg of the petition rn an execuhve or 
rnanagenal capac~ty and that the proposed employment ~nvolved 
executlvr or managel~al authority over the new operatlon; 
(C) The intended Un~ted States operatlon, wlthln one year of the 
approval of the petltlon, w~ll support an executive or managenal posihon 
as defined In paragraphs (l)(l)(ii)(B) or(C) of this sectlon, supported by 
information regarding: 
(I) The proposed nature of the office descnb~ng the scope of the 
enoty, ~ts organ~zatlonal structure, and its financial goals; 
(2) The sue of the Un~ted States investment and the financial ab~lity 
of the foreign entity to remunerate the benefic~ary and to commence 
dome f.?us~ness In the Unlted States; and 
(3) The organi7atlonal structure of the foreign ent~ty. 
The first issue in this proceeding IS whether the petitloner has established that a qualifying 
relationship exlsts between the petitioner and the foreign entity pursuant to 8 C.F.R. 
5 2 14.2(I)(l)(ii){G). 
The regulation at 8 C.F.R. tj 2 lil.Z.(l)(ii)(G) defines the term "qualifying organization" and related 
terms as follows: 
(G) Qucd~bing organization means a United States or foreign firm, corporation, 
or other legal entlty which: 
Page 4 
(I) Meets exactly one of the qualifying relationsh~ps specified in 
the definitions of a parent, branch, affiliate or subsidiary specified in 
paragraph (l)(l)(ii) of ths section; 
(2 Is or wiIl be doing business (engaging in international trade 
is not required) as an employer in the United States and in 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 intracornpany transferee; and 
(3) Otherwise meets the requirements of section 101 (a)(lS)(L) 
of the Act, 
(I) Parenf mearis a firm, corporation, or other legal entity which has subsidiaries. 
0 
(J) Branch means an operation divis~on or office of the same organization housed in a 
different location. 
(K) Subsidiary means a firm, corporation, or other legal entity of which a parent owns, 
directly or indirectly, more than half of the entity and controls 'the entity; or owns, 
directly or indirectly, half of the entity and controls the entity; or owns, directly or 
indirectly, 50 percent of a 50-50 joint venture and has equal control and veto power over 
the entity; or owns, directly or indirectly, less than half of tlie entity, but in fact controls 
' theentity. 
(L) AfJilinte means 
(I) One of two subs~dianes both of whtch are owned and controlled by the 
same parent or ~ndlvldual, or 
(2) One of two legal cnt~tjes owned and controlled by the same group of 
~nd~viduals, each lndlv~dual ownlng and corrtroll~ng approximately the same share or 
proport~on of each entity. 
.The regulation and case law corlfirm that ownership and control are the factors that must be 
. examined in detennining 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 (BIA 1988); see also Matter of Siemens Medical Systems, Inc., 
1 9 I&N Dec. 362 (RIA 1 986); Mutter of Hughes, 1.8 I&N Dec. 289 (Comm. 1 982). 1n' 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 Scientologv International, 19 I&N Dec. at 595. 
Page .5 
In a May 29, 2002 letter appended to the lnltlal petition, the pet~tioner lndlcated that the U.S. 
e owned and controlled by the same md~vidual, 
an expired "Certificate of Registration of Business Name" 
was registered to do business as "my in the 
Phlll~pplnes fiom January 19, 1996 to January 19, 2001. For the U.S. company, the petitioner 
submtted ~ts Certificate of Incorporation, whlch lndlcates that the company 1s authorized to issue 
1500 shares of stock w~th a par value of $.I0 per share. The petltloner also submitted its by-laws 
and rninutes of the fi;st meeting of the board of directors, but these documents do not address the 
company's ownership or the issuance of shares. 
On July 26, 2002, the dlrector requested add~tlonal evidence to establish that the petitioner and 
foreign ent~ty have a qualifying relationship. In particular, the director requested: 
Ev~dence doclmlc-ntrng the ownershtp and control of the foreign enbty Including 
the art~cles of mcorporatlon, mlnutes of the organtzational meeting, and a llst of 
the stock owner:; show~ng what percentages they own. 
e Ewdmce documenting the ownership and control of the U.S. entity including 
minutes of the organizational meet~ng that hsts all shareholders and the number of 
shares owned, stock certificates ~ssued to the present date, proof of stock purchase, 
or~g~nal wire transfers fiom the parent company, and annual report. 
On October 18, 2002, the petitioner, tluough counsel, responded to the director's request for 
addltlonal ev~dencc In ~rfereucs to the ownership of the forelgn entity, counsel stated that: 
At the present tlme, the company st111 operates as a sole propnetorsh~p, and is 
100% owned by the owner of the U.S. company. The company has a buslness 
l~cense to legally conduct buslness m the Phlhpplnes. But, no corporate 
documents, 11ke those [annual report, llst of owners, mlnutes of the meetlng, 
stock ownersh~p, and art~cles of mcorporation], are available as they are not 
common busi~less practlce Items 111 the Ph~l~ppines for sole propr~etorshlps. 
The petitioner submitted another copy of the expircd "Certificate of Registration of Business 
Name" n addition, the petitioner claims that the U.S. and foreign entity are 
owned a 1J.S. citizen. The petitioner stated that the owner "had enough 
funds to be able to create the U.S. company w~thout wlre transfers from the parent company in 
the Philippines." The petitioner submitted a copy of the stock certificate showlng that Elvis 
Ulanday owns 50 shzres of the capttal stock of the U.S. company. The petltloner also resubmitted 
another copy of the first mmutes of the meeting of the board of d~rectors which does not Indicate 
the number and percentages of shares issued. 
On March 13, 2003,' the director denied the petition. The director stated that the evidence was 
insufficient to a qualifying relationship between the foreign and the U.S. entity. The director 
found that the single stock certificate was insufficient evidence to establish ownership and control 
of the U.S. entity. ?''he director also considered whether an affiliate relationship existed between 
the petitioner and foreign entity. However, the director determined that the evidence did not 
support a finding of an affiliate relationship. 
On appeal, counsel asserts that the petitioner submitted sufficient evidence to establish that a 
qualifying relationship exists between the petitioner and. the foreign branch office. Counsel claims 
that the previously submitted docun~entation shows that the same individual owns and controls 
both companies and that such evidence establishes a "subsidiary relationship." The.petitioner also , ' 
submits additional documentation on appeal. 
On review, there is insufficient evidence to establish that a qualifying relationship exist. between 
the petitioner and the foreign entity pursuant to 8 C.F.R.' €j 214.2(1)(1)(ii)(G)(l). On Form 1-129, 
the petitioner claims that the U.S. organization is a branch office of the foreign entity. However, 
on appeal, the petitioner claims that the U.S. business is a subsidiary of the foreign entity. It is 
incumbent upon the petitioner to resolve any inconsistencies in the record by independent 
'objective evidence. hy attempt to explain or reconcile such inconsistencies will not suffice 
unless the petitioner :;uhmils competent objective evidence pointing to where the truth lies. 
, Matter of Ho, 19 S&M I)ec. 582,59 1-92 (BIA 1988). 
The AAO notes that if any qualifying relationship exists between the two entities, it would be an 
affiliate relationship based on common ownership and control by an individual. See 8 C.F.R. 
214.2(1)(l)(ii)(L)(l).   ow ever; the petitioner has not submitted evideice to substantiate its 
claim that Elvis A. 1Jlanday is the sole shareholder of the c~~~an~. As noted 'above, the 
petitioner submitted a single share certificate indicating that 50 shares of stock were issued to this 
individual. 
As general eliidcnce of a petitioner's claimed qualifying relationship, stock certificates alone are 
not sufficient evidence to determine whether a stockholder maintains ownership and control of a 
corporate entity. The corporate stock certificate ledger, stock certificate regstry, co'i-porate 
bylaws, and the ~ninutes of relevant annual shareholder meetings must also be examined to 
determine the total number of shares issued, the exact number issued to the shareholder, and the 
subsequent percentage ownership arid its effect on corporate control. Additionally, a petitioning 
company  nus st disclose all agreements relating to the voting of shares, the distribution of profit; 
the management and 4irection of the subsidiary, and any other factor affecting actual control of 
the entity. See Matter of Siemens Medical Systerrzs, Inc., 19 I&N Dec. 362 (BIA 1986). Without , 
. full disclosuie of all relevant documents, CJS is unable to determine the elements of ownership 
and control. 
The regillations specifically allow the director to request additional evidence in appropriate cases. 
See 8 C.F.K. 5 214.2(1)(3)(viii). As ownership is a critical element of this .visa classification, the. 
director may reasonably inquire beyond the issuance of paper stock certificates into the means by 
which stock ownership was acquired. As requested by the director, evidence of this nature should 
include documentation of monies, property, or other consideration furnished to the entity in, 
exchange for stock ownership. Additional supporting evidence would include stock purchase 
agreements, subscription' agreements, corporate by-laws, minutes of relevant shareholder 
meetings, or other legal documents governing the acquisition of the hership interest. 
hi this matter, the director specifically requested that the petitioner submit proof of stock 
purchase and the source of all funds, copies of all stock certificates, and documentation to 
identify the stock shareholders and the number and percentage of shares owned. Failure to submit 
requested evidence that precludes a material line of inquiry shall be grounds for denying the 
petition. 8 C.F.R. $' 103.2(b)(14). The petitioner has not established that the petitioner and the 
foreign entity are owned and controlled by the same individual. 
In addition. fnr petitioner must submit evidence to establish that the U.S. company and foreign 
entity are or will be doing business for the duration of the beneficiary"'stay in the United States. 
See 8 C.F.R. '§ 214.2(1)(l)(ii)(G)(2). The term "doing business" is defined in the regulations as 
"the regular, systematic, and continuous provision of goods andlor services by a' qualifying 
organization and does not include the mere presence of an agent or office of the qualifying 
organization in.the United States and abroad." 8 C.F.R. $ 214.2(1)(l)(ii). The instant petition was 
filed in June 2002 1n support of the petition, the petitioner submitted an expired certificate of 
registration' for the foreign company, a list of clients, and various sales invoices dated 1997 
through 2,000. In response to the director's request for additional evidence that the foreign entity 
was doing business, the petitioner submitted a one-page balance sheet.for 2001, 2001 ~kual 
Income'Tax Return, and hvo receipts which appear to be dated April 2000. However, this 
evidence does not indicate that the foreign sole proprietorship has been doing business regularly, 
systematically, and continuously. Therefore, based on this minimal documentation, the petitioner 
has not demonstrated that the foreign entity is a qualifying organization. 
. . 
After careful conslderatio~l of the evldence, the AAO concludes that the petltloner has not 
establ~shed that a qual~fy~ng relat~onsh~p exists between the petltloner and forelgn entlty. For this 
reason, the petitton may not be approved 
The second Issue in this proceeding is whether the beneficiary has been employed with the 
fore~gn entity and vnl! be employed by the 1J.S. ent~ty in a primarily managerial or executive 
capacity. Sectior~ 10 1(a)(41)(A) of the Act, 8 U.S.C. § 1 10 l(a)(44)(A), provides: 
The tertn "managerial capacity" means an assignment within an organizatlon in whtch the 
employee primarily- 
1 manages the organization, or a department, subd~vision, function, or 
component of the organization; 
li supervises and co~ltrols the work of other supervisory, professional, or 
managenal employees, or manages an esserxtlal function w~thln the organization, 
or a departmt:i~t or s~.~bdivlslon of the organ~zat~on; 
I~I ~f another employee or other employees are directly supervised, has the 
author~ty to hire and fire or recomrnend those as well as other personnel actions 
(such as promot~on and leave authonzat~on), or if no other employee IS directly 
superv~sed, filnct~ons at a senaor level w~thm the organizattonal h~erarchy or wlth 
respect to the funct~on managed; and 
- Page 8 
iv exercises discretion over the day-to-day 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 10 1(a)(44)(R) of the Act, 8 U.S.C. $ 1 101(a)(#)(B), provides: 
The tern? "'exec~etive capacity" means an assignment within an organization in which the 
ernployee pr~manly- 
(i) directs the management of the organrzatlon or a major component or 
funct~on of the organtzatlon; 
(ii) establishes the goals and policies of the organization, component, or 
function; 
(iii) exercises wide latitude in discretionary decision-mahng; and 
(iv) receives only general supervision or direction fiom higher level 
executives, the board of directors, or stockholders of the organization. 
In the Initial filing, the pet~tioner submitted a May 29, 2002 supporting letter describing the 
beneficiary's foreign and proposed U.S. entity duties as: 
1. Act as Creative Art Director to plan, develop, establish and direct policies 
and objectives of the art department. 
2. Coordinate functions and operations between employees at the art 
departmcfnt and establish responsibilities and procedures to attain objectives. 
3. Oversee all creative operations of the company and meethegotiate with all 
major clients. 
4. Responsible for company's public perception in terms of its look and feel. 
5. In charge of handling a team of graphic artists for projects for clients; 
formulate concepts and supervise workers engaged in executing computer 
desiLgns for art work. 
6. Review ~llustrative material and confer with client or individual responsible 
for presentation regarding budget, background mformation, objectives, 
presentation approaches, styles, techniques, and related factors. 
7. Formulate basic layout design concept and conduct research to select and 
secure suitable illustrative material, or conceive and assign production of 
material and detail to web artists and desi~mers. 
8. Asslgn and direct staff members to develop design concepts into art layouts; 
to complete deslgn ideas and prepare sketches, ~llustrations, and detalled 
drawlngs of sets. 
9. Direct design and production of graphlcs or animation to produce graphics or 
anlmation for websites. Estimate constructnon costs and present plans and 
c-,F t~mates for approval. 
10. Lead internal and freelance creative staff upgrade design and project' 
management. 
11. Implement design changes that enhance and improve the conversion process, 
as well as develop value-added features to increase site popularity and traffic. 
12. Design, develop, install, modify, and maintain Internet sites for businesses. 
13. Work and renew creative materials with marketing team to ensure strateges 
and corrlpany objectives are met, find creative, innovative and cost effective 
solutions to business requirements. 
14. Provide graph~c deslgn support and ma~ntenance. 
15. Correct and troubleshoot graphics issues ranglng from color and image 
edlting, creation and recreating of graphlcs, settlng proper resolut~ons and 
slzlng, anlrnated imaglng, openlng and converting files Into proper file 
formats for the web. 
16. Supervi:,~ outside creative and productic~n res~:)&ces. 
17. Review act~vity reports and financial statements to determine progress 
towards goals. 
18. Revise objectives and plans in accordance w~th current conditions. 
19. Determine projects to be undertaken based on demand and industry reaction 
to past production projects and current market conditions. 
On July 26, 2007, thc director requested add~tional evldence including the forelgn entity's payroll 
records, organ~zational chart, total number of employees abroad, a more detailed list of the 
beneficiary's foreign duties and what percentage of time the beneficiary spends in each of the 
listed dutles. In addlt~on, the dlrector requested additional mfonnation concerning the 
beneficiary's proposed U.S. duties including the U.S. entity's organizational chart and a more 
detailed description of the beneficiary's duties. 
In response, on October 18, 2002, the petitioner submitted the foreign entity's payroll records 
and organizational chart indicating that the foreign entity has eleven employees. The petitioner 
claims that the beneficiary IS dlrectly supervising the web developer. In addihon, the petitioner 
resubmitted the description of the beneficiary's duties and added the percentage of time the 
beneficlary spends on each of the following foreign and proposed U.S. duties listed previously: 1) 
100%; 2) 100%; 3) 100%; 4) 100%; 5) 25%; 6) 5%; 7) 5%; 8) 10%; 9) 10%; 10) 5%; 1 1) 5%; 12) 
5%; 13) 5%; 14) 10%; 16) 5%; 17) 5%; and, 19) 5%. 
On March 13, 2003, the director denied the petition. The director determined that the petitioner 
failed to establish that the benefic~ary has been or will be employed In a primarily managerial or 
execut~ve capac~ty. The director found that the beneficiary's duties were described in broad and 
general terms. The dlt-ector further noted that the record lndlcates the beneficlary has been and 
would be d~rectly providmg the services of the business. 
On appeal, counsel claims that the beneficiary has been and will be employed in a managerial and 
executive capacity. Counsel provides an additional description of the beneficiary's foreign and 
proposed U.S. duties. 
In examining thc 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(1)(3)(ii). On review, the 
petitioner has failed to establish that the beneficiary has been and will be employed in a primarily 
managerial or ex.ecutive capacity. The beneficiary's foreign and proposed duties are described as 
"plan, develop, establish and direct policies," "coordinate fbnctions and operations between 
employees," "find creative, innovative and cost effective solutions to business requirements," and 
"in charge of handling a team of graphic artists for projects.for clients." These phrases are vague 
and general. The petitioner has not provided details of the beneficiary's primary duties. For 
instance, the petitioner fails to elaborate how the beneficiary has and will plan, develop, establish 
and direct policies. These duties are generalities that fail to list any concrete policies that will be 
established. 7be petitioner did not enumerate any of these aspects or policies: Going on record 
without supporting documentary evidence is not sufficient for purposes of meeting the burden of 
proof in these proceedings. Matter of Sofici, 22 I&N Dec. 158, 165 (Comrn. 1998) (citing 
Matter of Treasure Cvafi of Califnrnia, 14. lRtN Dec. 190 (Reg. Comm. 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 c,ase: 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., Lid. v. ,Sava:, 724 F. Supp. 1203, 1108 (E.D.N.Y. 1989), afd, 905 F.2d 41 (2d. Cir. 1990). 
In addit~on, or1 appe:ll, the petitioner submitted an additional description of the beneficiary's 
forelgn and TJ S. proposed dutles. However, these dutles are also general. For example, the 
petitioner describes the beneficiary as '.exerzise absolute discretionary power In day-to-day 
operation of the Art Department and make all v~tal execut~ve dec~slons relatlng to the Art 
Department and successfill op~ration." Specifics are clearly an important indication of whether a 
beneficiary's duties are primarily execut~ve or managerlal m nature, otherwise meeting the 
definitions would simply be a matter of relteratlng the regulat~ons. Fedin Bros. Co , Ltd. v Sava, 
724 F. Supp. 1 103 (E.D.N.Y 1989), nff'u: 905 F.2d 41 (2d. Clr. 1990) 
Further, the beneficiary appears to be primanly involved in the daily operations abroad and in the 
United States. The petitioner indicated that the beneficiary will "design, develop, install, modify, 
and maintain Internet sites for business," "work and review creative materials," implement design 
changes," "review illustrative material," and "formulate basic layout design." These duties 
pnmanly appear to comprise daily operational tasks requlred to provide a service or product. An 
employee who primarily performs the tasks necessary to produce a product or to provide services 
is not coris~dered t13 be employed m a managerlal or executive capacity. Matter of Church 
Scientology internatzonal, 19 I&N Dec. 593,604 (Comm. 1988 
Moreover, the pehhoner asserted that the beneficiary will "direct Art Department professional and 
managerial personnel." Although the beneficiary is not required to supervise personnel, if it is 
clalrned that her duhes ~nvolve supervlsmg employees, the pehboner must establish that the 
subordinate employees are supervisory, professional, or managerial. See fj lOl(aX44)(A)(ii) of the 
Act. According to the petitioner's description of the beneficiary's job duties, the beneficiary directs a 
web developer and wll direct a gr;iptnc arbst. Rased on the organizabonal charts, ~t is apparent that 
the beneficiary's current and proposed subordinates are not managerial or supervisory as the 
subordlnatc:~ have no employees to manage or supervise and have not been or shown to manage an 
essenhal funchou within either organ~zatlon. 
In addition, section 101(a)(32) of the Act states that the term "profession" includes, but is not" 
limited to architects, engineers, lawyers, physicians, surgeons, and teachers of elementary or 
secondary schools, colleges, academies, or seminaries. Additionally, as provided in 8 C.F.R. 
204.5(k)(2), the tenn "profession" includes not only one of the occupations listed in section , 
101(a)(32) of the Act, bi~t also any occupation for which a United States baccalaureate degree'or 
its foreign equivalent is the minimum requirement for entry into the occupation. It is apparent 
that these types of positions are not those that would normally require college graduates. The 
petitioner has not established that the subordinates are professional employees within the 
statutory and regirl3tcry definitions. Therefore, the organizational charts indicate that the 
beneficiary is and would be performing as a first-line supervisor of a non-professional employees, 
,. rather than as a manager or executive. 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 4A0 concludes that the beneficiary has not been 
employed by the foreign entlty and will not be employed by the U.S. entity In a pnmarily 
managenal or execut~ve capacity. For these reasons, the pehtion may not be approved. 
The AAO now turn; :0 the third issue in this proceeding of whether the petitioning entity has 
secured sufficient phys~cal premises to house the new office. 
leased premises at 
s for a period of six months 
that it was. restricted to 
residential use only. The lease stated that the property was leased for "use as a residence and for 
no other purpose." 
On July 26, 2002, the director requested additional evidence including a description of the type of 
business the petitioner plans to operate, an explanation of the worksite, location, type of building 
being utilized, and floor pplan. In addition, the director requested photographs of the premises, 
business hours, telephone number, and lease agreement showing square footage. Finally, the 
director requested clarification as to why the original lease indicated that the premises shall be 
used for residential purposes only. 
In response to rile req~iest for additional inforn~ation, the petitioner submitted an October 18,2002 
letter stating that the U.S. company "specializes in the creation of various web applications and 
develop[s] corporate web pages." In addition, the petitioner claims that, " . . . no customer 
interaction is conducted by the company slnce the web services product to be patented is still in 
the process of be~ngj finahzed anti approved. Upon k-1 approval . . .the owner, will rent or 
purchase a more suitable business location." The petitioner resubmitted the original lease. The 
pet~t~oner also subm~tted an operating buslness telephone number, hours of operation, and 
photographs of the premises. 
On May 30, 2002, the dlrector denied the petlhon because the petitloner failed to establ~sh that 
that ~t had securt:d suficient physlcal premises to house its office. The director found that the 
lease was restricted to res~dentlal use of the premises rather than cornrnerclal use of the premlses. 
On appeal, the petitioner submits a new lease agreement. The lease indicated that the agreement 
is for the office 
5th Floor. The 
On review, the AAO agrees with the decision of the director. The record does not establish that 
the petitioner has secured sufficient physical premises to house the new office. On appeal, 
counsel s~ibmits a new lease describing the premises to be secured for the U.S. entity's 
operations. Counsel states that the petitioner "l.ras at this point in time, a new lease had been 
secured." However, the petitioner must establish eligibility at the time of filing the nonimmigrant 
visa petition. A visa petition Inay -not be approved at a future date after the petitioner or 
beneficiary becomes eligible under a new set of facts. Matter of Michelin Tire Corp., 17 I&N 
Dec. 248 (Rcg. C-:OIT~Y!? iiB711)'. 71~:1;:f01-e, ar: the t.inrt:: of filing on June 3, 2002, the petitioner did 
not have sufiicieni physicai prem1:;es to house the new office. 
In addition, the petitioner failed to establish that it had secured sufficient physical premises to 
house the new office at the time of the director's request for additional information on July 26, , 
2002. The Faili.ire to submit requested evidence that precludes. a material line of inquiry shall be 
grounds for denying the petition.. 8 C.F.R. 3 103.2Cb)(14). 'The purpose of the request for evidence 
is to elicit fi~rther information that clarifies whether eligibility for the benefit sought has been 
established, as of the time the petition is filed. ,S$ee 8 C.F.R. $5 103.2@)(8) and (12). As in'the, 
present matter, %here a petitioner has been put on notice of a deficiency in the evidence and has 
been given an oppqrtrinity tc! respmd to that dcficimcy, thc kl\O will not accept evidence 
offered for the first lime on appeal. See EJIiiucr c!f'Soriun,g, 19 I&N Dec. 764 (BIA 1988); Matter 
of Obaigbena, 19 I&N Dec. 533 (BIA 1988). If the petitioner had wanted the sibmitted'kvidence 
to. be considered, it should have'submitted the documents in response to the director's request for 
evidence. Id Under the circun~stances, the AAO need not and dbes not consider the sufficiency 
of the evidence submitted on appeal. Therefore, the petitioner has not secured sufficient physical . 
premises to .house the new office. See 8 C.F.R. 5 214.2(1)(3)(v). For this additional reason, the 
'' petition may not be approved. 
Beyond the decision of the director, the petitioner has not established that the beneficiary had 
least one ~onti;-~uc~u::; ' year of full-time employment with the foreign entity within the three years 
pr2cebirig the Iiiirrg of the instant petition as required by 8 C.F.R. $ 21'4.2(1)(3)(iii). At the time 
the petition was filed on June 3, 2002, the beneficiary had been in the United 'States as a 
nonirnmigrant visitor put-suant to section 101(a)(15)(B) of the Act for a period of two years and 
one day. Courrsel indicated in her May'29, 2002 cover letter that the beneficiary "has been 
working for the company in the Philippines for over a one year period in the last four years." The 
petitioner submitted a letter from the foreign entity indicating that the beneficiary was employed 
with the claimed selnted ent.ity from 1995 to 2000. The beneficiary's resume indicates that she 
was employed with the foreign entity from December 1995 to December 2000, and also worked 
as thc creative diredor!owner of ' in Manila, Philippines From 1997 to 
2002. Whev :he pcritrcner requested payroll records as evidence of the beneficiary's qualifying 
one year of cmj3loyn:crrt abrwad, the petitioner provided pay slips showing monthly payments to 
the beneficiary from January 2001 to March 2002. The pay slips do not indicate the name of the 
employer, and do not reference the relevant time period, which is June 2, 1999 to June 2. 2000. 
Golng on record without suppol-tmg documentary evldence rs not suffic~ent for purposes of 
meetlng the burden of proof In these proceedmgs. Matter of Soficl, 22 I&N Dec. 158, 165 
(Comm. 1998) (cltmg Il4atter of Treasure Cra$ of Califbrnia, 14 I&N Dec. 190 (Reg. Comrn. 
1972)). Based on the above. the pet~tioner has not establ~shed that the benefic~ary was employed 
by the fore~gn entrly for one year In the three years preceding the filing of th~s petltlon. For this 
add~t~onal reason, the petition may nut be approved. 
An apy11cat101-r or petxion that &?ils to comply wlth the technical requirements of the law may be 
denied by the AAO even lf the Service Center does not ldentlfy all of the grounds for denial in 
the inltial decis~on. See Spelzcer Enterprises, Inc. v. United States, 229 F. Supp. 2d 1025, 1043 
(E.D. Cal. 20011, afd. 345 F.3d 683 (9th Cir. 2003); see also Dor v. INS, 891 F.2d 997, 1002 n. 9 
(2d Cir. 1989)(not1ng that the AAO reviews appeals on a de novo bass). 
In visa petition proceedings, the burden of proving eligibility for the benefit sought remains 
entirely with thq petitianer. Section 291 of the Act,'8 U.S.C. 4 1361. Here, that burden has not 
been met. A-ccordingly, the appeal will be dismissed. 
ORDER: . The .;?]peal is dismissed.