dismissed L-1A Case: Wood Products Manufacturing

U.S. Department of Homeland Security 
20 Mass Ave., N.W., Rm. A3042, 
Washington, DC 20529 
U. S. Citizenship 
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inV8SIon of peuI*~m 
FILE: SRC 04 123 5083 1 Office: TEXAS SERVICE CENTER Date: PEG 2 2 20a 
PETITION: Petition for a Nonimrnigrant Worker Pursuant to Section 10l(a)(l5)(L) of the Immigration 
and Nationality Act, 8 U.S.C. $ 1 101(a)(15)(L) 
ON 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. 
Administrative Appeals Office 
SRC 04 123 5083 1 
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 petitioner, a corporation organized under the laws of the State of Florida in October 2003, claims that it is 
a new office engaging in the manufacturing and installation of fine wood products. The petitioner claims to 
be a wholly-owned subsidiary of Comercial Arleth E.I.R.I,., located in Lima, Peru. It seeks to employ the 
beneficiary temporarily in the Unlted States as its general manager, pursuant to section 101(a)(15)(L) of the 
immigration and Nationality Act (the Act), 8 U.S.C. $ 1101(a)(IS)(L). 
The director denied the petition concluding that the petitioner has failed to show that (1) the beneficiary was 
employed by the foreign entity in a managerial or executive capacity for one continuous year within the three 
years preceding the filing of the petition, or that (2) the beneficiary would be employed in a managerial or 
executive capacity by the U.S. entity. 
The petitioner subsequently filed an appeal on Form I-290B. The director declined to treat the appeal as a 
motion, and forwarded it to the AAO for review. On appeal, the petitioner asserts it has submitted sufficient 
evidence to show that the beneficiary has been performing in a managerial or executive capacity with the 
foreign company for at least one year out of the three years previous to filing the petition. The petitioner 
acknowledges that it has not established clearly the beneficiary's role with the U.S. subsidiary or the 
organizational structure of the U.S. subsidiary, but attributes this deficiency to language issues and poor 
assistance in preparing the petition. The petitioner submits a brief and additional evidence to support its 
assertions on appeal. 
To establish L-1 eligibility, the petitioner must meet the criteria outlined in section IOl(a)(15)(L) of the 
Immigration and Nationality Act (the Act), 8 U.S.C. 5 1101(a)(15)(L). 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. In addition, 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. 
The regulation at 8 C.F.R. 5 214.2(1)(3) states in part 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. 
(iii) Evidence that the alien has at least one continuous year of full-time employment abroad 
with a qualifying organization within the three years preceding the filing of the petition. 
SRC 04 123 50831 
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(iv) Evidence that the alien's prior year of employment abroad was in a position that was 
managerial, executive or involved specialized knowledge and that the alien's prior education, 
training, and employment qualifies himfier to perform the intended services in the United 
States; however, the work in the United States need not be the same work which the alien 
performed abroad. 
Moreover, pursuant to the regulation at 8 C.F.R. 5 214.2(1)(3)(~), if the petition indicates that the beneficiary 
is coming to the United States as a manager or executive to open or be employed in a new office in the United 
States, the petitioner shall submit evidence that: 
(A) Sufficient physical premises to house the new office have been secured; 
(B) The beneficiary has been employed for one continuous year in the three year period 
preceding the filing of the petition in an executive or managerial capacity and that the 
proposed employment involved executive or managerial authority over the new operation; 
and 
(C) The intended United States operation, within one year of the approval of the petition, will 
support an executive or managerial position as defined in paragraphs (I)(l)(ii)(B) or (C) of 
this section, supported by information regarding: 
(1) The proposed nature of the office describing the scope of the entity, its 
organizational structure, and its financial goals; 
(2) The size of the United States investment and the financial ability of the foreign 
entity to remunerate the beneficiary and to commence doing business in the 
United States; and 
(3) The organizational structure of the foreign entity. 
The first issue in this proceeding is whether the petitioner has established that the beneficiary was employed 
by the foreign entity in a managerial or executive capacity for one continuous year within the three years 
preceding the filing of the petition. 
Section 101(a)(44)(A) of the Act, 8 U.S.C. 5 1101(a)(44)(A), defines the term "managerial capacity" as an 
assignment within an organization in which the employee primarily: 
(i) manages the organization, or a department, subdivision, function, or component of 
the organization; 
(ii) supervises and controls the work of other supervisory, professional, or managerial 
employees, or manages an essential function within the organization, or a department 
or subdivision of the organization; 
SRC 04 123 50831 
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(iii) 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 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)(B) of the Act, 8 U.S.C. 1 101(a)(44)(B), defines the term t'executive capacity" as an 
assignment within an organization in which the employee primarily: 
(i) directs the management of the organization or a major component or function of the 
organization; 
(ii) establishes the goals and policies of the organization, component, or function; 
(iii) exercises wide latitude in discretionary decision making; and 
(iv) receives only general supervision or direction from higher Ievel executives, the board 
of directors, or stockholders of the organization. 
In an undated letter accompanying the initial petition, the petitioner described the beneficiary's employment 
with the foreign entity as follows: 
['The beneficiary's] most recent position with [the foreign entity] [i]s as a General Director, a 
position that he has held since February 261h 2001 [sic], when the company was established. 
In this position, [the beneficiary] has full responsibility for the staff and work of the 
commercial department. This responsibility included the recruitment and training of staff, 
over which he had hiring and firing authority. He was also responsible for creating marketing 
strategies to be followed by the marketing department and setting of sales policies to be 
practiced by the sales department. [The beneficiary], in this position, assured compliance 
with schedule needs, creation and administration of standards for work and service quality. 
He exerc~sed complete day-to-day discretionary authority over the work of the above- 
mentioned departments. 
On April 7, 2004. the director requested additional evidence. Among other things, the director requested (1) 
an organizational chart for the foreign entity and the educational levels of the employees the beneficiary 
managed; (2) a statement describing the foreign employment of the beneficiary, establishing that he had been 
employed for one continuous year during the three years preceding the filing of the petition as an executive or 
manager, and that the beneficiary's prior education, training and employment qualifies him to perform the 
SRC 04 123 50831 
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intended services in the United States; and (3) the official payroll records from the foreign company showing 
that the beneficiary had worked for the foreign company during the requisite period. 
In response, the petitioner submitted what appears to be an organization chart of the foreign entity as of 
December 15, 2003, the payroll records of the foreign entity for the year 2003, and diplomas and educational 
certificates of the beneficiary, all in Spanish without translation into English. The petitioner also submitted a 
letter in English from the foreign entity, dated April 12, 2004, stating that the beneficiary has held the position 
of general manager of the foreign entity since February 26, 2001, and that the employees he manages in the 
foreign entity include a company manager, a company chief of operations, and a sales manager. 
On April 23, 2004, the director denied the petition. The director determined that the petitioner has not 
established that the beneficiary was employed by the foreign entity in a managerial or executive capacity for 
one continuous year within the three years preceding the filing of the petition. The director found the record 
does not establish that the beneficiary managed other managers or professionals within the foreign entity. 
The director noted that while the petitioner did submit an organization chart for the foreign entity, the names 
and education levels of that entity's employees were not furnished as requested. 
On appeal, the petitioner asserts it has submitted sufficient evidence to show that the beneficiary has been 
performing in a managerial or executive capacity with the foreign company for at least one year out of the 
three years previous to filing the petition. The petitioner submits a brief that elaborates upon the beneficiary's 
role in the foreign entity, his expected role in the U.S. entity, and the relationship between the two entities, 
and further evidence in support of its assertions in the brief. 
At the outset, the AAO notes that the petitioner submits further evidence on appeal, including a new 
organizational chart of the foreign entity list~ng the name, position title, and educational background and/or 
professional experience of each employee, and a diploma issued to one of the beneficiary's subordinates. 
However, this is evidence previously requested by the director, which the petitioner failed to provide prior to 
adjudication of the petition. The failure to submit requested evidence that precludes a material line of inquiry 
shall be grounds for denying the petition. 8 C.F.R. 5 103.2(b)(14). Moreover, where a petitioner has been put 
on notice of a deficiency in the evidence and has been given an opportunity to respond to that deficiency, the 
AAO will not accept evidence offered for the first time on appeal. See Matter of Soriano, 19 I&N Dec. 764 
(BIA 1988); see also Matter of Obaigbena, 19 I&N Dec. 533 (BIA 1988). If the petitioner had wanted the 
submitted evidence to be considered, it should have submitted the documents in response to the director's 
request for evidence. Id. Under the circumstances, the AAO need not and does not consider the sufficiency 
of the evidence submitted on appeal. The appeal will be adjudicated based on the record of proceeding before 
the director. 
On reviewing the petition and the evidence before the director, the AAO finds that the petitioner has not 
established that the beneficiary has been employed in a managerial or executive capacity by the foreign entity. 
When 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). The petitioner's description of the job 
duties must clearly describe the duties to be performed by the beneficiary and indicate whether such duties are 
either in an executive or managerial capacity. Id. On review, the petitioner has provided a vague and 
nonspecific description of the beneficiary's duties that fails to demonstrate what the beneficiary did on a day- 
SRC 04 123 50831 
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to-day basis while employed by the foreign entity. For example, the petitioner states that the beneficiary's 
duties include "recruitment and training of staff, over which he had hiring and firing authority," "creating 
marketing strategies," "setting sales p~licies,~' "assur[ingj compliance with schedule needs, creation and 
administration of standards for work and service quality [sic]." The petitioner also indicated that the 
beneficiary "exercised complete day-to-day discretionary authority over the work of the [sales and marketing] 
departments." However, the petitioner did not define the strategies and policies created by the beneficiary, or 
clarify what his quality assurance and compliance tasks entailed. Nor did the petitioner provide an adequate 
description of the staff that purportedly carried out the day-to-day work under the beneficiary's supervision. 
Going on record without supporting documentary evidence is not sufficient for purposes of meeting the 
burden of proof in these proceedings. Mutter of Sofici, 22 I&N Dec. 158, 165 (Comm. 1998) (citing Matter 
of Treasure Cruft of California, I4 I&N Dec. 190 (Reg. Cornm. 1972)). Specifics are clearly an important 
indication of whether a beneficiary's duties are primarily executive or managerial in nature, otherwise meeting 
the definitions would simply be a matter of reiterating the regulations. Fdin Bros. Co., Ltd. v. Suva, 724 F. 
Supp. 1 103 (E.D.N.Y. 1989), afd, 905 F.2d 41 (2d. Cir. 1990). 
Furthermore, although the beneficiary is not required to supervise personnel, if it is claimed that his duties 
involve supervising employees, the petitioner must establish that the subordinate employees are supervisory, 
professional, or managerial. See 9 IOl(a)(44)(A)(ii) of the Act. Here, the petitioner asserts that the 
beneficiary was managing a subordinate staff in the foreign entity, but the record does not establish that the 
subordinate staff is composed of supervisory, professional, or managerial employees. As noted earlier, in 
response to the director's request, the petitioner submitted a number of documents, including an organization 
chart for the foreign entity, in Spanish with no English translation. Because the petitioner failed to submit 
certified translations of the documents, the AAO cannot determine whether such evidence supports the 
petitioner's claims. See 8 C.F.R. 5 103.2(b)(3). Accordingly, the evidence is not probative and will not be 
accorded any weight in this proceeding. The petitioner did submit a letter dated April 23, 2004 confirming 
the beneficiary's employment and indicating that the beneficiary supervised three employees having the titles 
of company manager, company chief of operations, and sales manager. However, the record does not indicate 
that any of these employees supervised subordinate staff members or managed a clearly defined department 
or function of the petitioner, such that they could have been classified as managers or supervisors. Further, 
though requested by the director, the petitioner did not furnish any information regarding the Ievel of 
education required to perform the duties of the beneficiary's subordinates. Thus, the record is insufficient to 
demonstrate that these employees possessed or required an advanced degree, such that they could have been 
classified as professionals. Moreover, as previously noted, any failure to submit requested evidence that 
precludes a material line of inquiry shall be grounds for denying the petition. 8 C.F.R. 9 103.2(b)(14). In all, 
the petitioner has not shown that the beneficiary's subordinate employees were supervisory, professional, or 
managerial, as required by section 10 1 (a)(44)(A)(ii) of the Act. 
In light of the foregoing, the AAO concludes that the evidence is insufficient to establish that the beneficiary 
was employed by the foreign entity in a managerial or executive capacity for one continuous year within the 
three years preceding the filing of the petition. 
The second issue in this proceeding is whether the beneficiary will be employed by the U.S. entity in a 
managerial or executive capacity, and whether the U.S. entity will support a primarily managerial or 
executive position, within one year of approval of the petition. 
SRC 04 123 5083 1 
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In the letter accompanying the initial petition, the petitioner described the beneficiary's anticipated position 
within the U.S. entity as follows: 
[The beneficiary] will fill the position of [gleneral executive-president in charge of the 
development of a market for the products in services offered by the company. The position 
will require that [the beneficiary] manages and sets [sic] standards for the following 
assignments[:] 
1) To hire and dismiss personnel; 
2) To set marketing guidelines and policies to be followed by the subsidiary; 
3) To create and set sales strategies already followed by the main company; in order 
to enlarge the market range to be reached by the subsidiary; 
4) To coordinate the sales department as to assure the supply of quality services, 
aiming to achieve the profitability goals set by the main company. 
To proceed to these tasks [the beneficiary] will hire as many employees as he considers 
necessary to carry out the business of [the U.S. entity]. These employees shall work directly 
under the supervision of [the beneficiary] who will report only to the Stockholders of [the 
foreign entity]. 
In response to the director's request for further evidence, the petitioner also submitted a proposed business 
plan for the U.S. entity indicating that in addition to the beneficiary, the management team of the U.S. entity 
would lnclude a vice presidentlsales manager and a production manager. 
In her decision denying the petition, the director stated that "[tlhe petitioner has failed to establish that the 
duties for an executive or manager with [the U.S. entity] meet Title 8, Code of Federal Regulations, Section 
2 14.2(L)(B) or (C) [sic] ." 
On appeal, the petitioner acknowledges that neither the beneficiary's role with the U.S. entity nor the 
organizational structure of the U.S. entity has been established clearly, but attributes this deficiency to 
language issues and poor assistance in preparing the petition. The petitioner offers the following description 
of the beneficiary's role in the U.S. entity: 
[The beneficiary's] position as President for the development of [the U.S. entity] involves 
complete responsibility for the set up and control of the subsidiary and includes the following 
duties: 
Formulate policies and direct the set up of the business; 
Direct the company's financial goals, objectives and budgets; 
Hire, train, assign, supervise and remove company managers; 
Approve projects, programs and recruitment efforts. 
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Additionally, during the initial set up of the operations of the U.S. company, [the beneficiary] 
will undertake the role of Marketing Manager, in charge of the efforts to establish a 
company brand. 
The petitioner also submits on appeal an organizational chart for the U.S. entity, which indicates that in 
addition to the beneficiary, a sales manager, and a production department manager, there also would be 
"administrative services" and a sales department manager to be recruited locally, and a production team of 
undetermined number. 
Because the petitioner is a new office, the relevant regulations mandate consideration of (1) whether the 
proposed employment involved executive or managerial authority over the new operation, and (2) whether the 
U.S. entity, within one year of approval of the petition, would support the beneficiary in a primarily 
managerial or executive capacity. See 8 C.F.R. $ 214.2(1)(3)(v)(B) and (C). The AAO notes that the 
director's decision with respect to the beneficiary's proposed employment with the U.S. entity does not reflect 
consideration of the applicable regulations at 8 C.F.R. 5 214.2(1)(3)(v); indeed, the director's decision does 
not cite to the correct regulations. Therefore, the director's statement that "[tlhe petitioner has failed to 
establish that the duties for an executive or manager with [the U.S. entity] meet Title 8, Code of Federal 
Regulations, Section 214.2(L)(B) or (C) [sic]" will be withdrawn. However, upon reviewing the evidence of 
record, the AAO concludes that the petitioner has not established that the beneficiary will be employed in a 
managerial or executive capacity by the U.S. entity, or that the U.S. entity will support the beneficiary in a 
primarily managerial or executive capacity, within one year of approval of the petition. 
With respect to the beneficiary's proposed job duties with the U.S. entity, the petitioner has provided two 
different job descriptions, one with the initial petition and one on appeal. However, both descriptions of the 
beneficiary's duties are vague and non-specific and fail to demonstrate what the beneficiary would do on a 
day-to-day basis. For example, the petitioner stated initially that the beneficiary would "hire and dismiss 
personnel;" "set marketing guidelines and policies;" "create and set sales strategies;'' and "coordinate the sales 
department." On appeal, the petitioner described the beneficiary's duties as "formulat[ing] policies and direct 
the set up of the business;" "direct[ing] the company's financial goals, objectives and budgets;" "hir[ing], 
trainfing], assign[ing], supervis[ing] and remov[ingj company managers;" and "approv[ing] projects, 
programs and recruitment efforts." The petitioner did not provide any specifics with respect to the company's 
goals, policies, objectives or strategies, or the staff the beneficiary would supervise. Conclusory assertions 
regarding the beneficiary's employment capacity are not sufficient to meet the petitioner's burden of proof. 
As noted earlier, specifics are clearly an important indication of whether a beneficiary's duties are primarily 
executive or managerial in nature; otherwise meeting the definitions would simply be a matter of reiterating 
the regulations. Fedin Bros. Co., Ltd. v. Suva, 724 F. Supp, at 1 103. 
Furthermore, the petitioner has not provided adequate documentation to establish that the U.S. entity will 
sufficiently support the beneficiary in a managerial or executive position within one year of approval of the 
petition. When a new business is established and commences operations, the regulations recognize that a 
designated manager or executive responsible for setting up operations will be engaged in a variety of 
activities not normally performed by empIoyees at the executive or managerial level, and that often the full 
range of managerial responsibility cannot be performed. In order to qualify for L-1 nonimmigrant 
classification during the first year of operations, the regulations require the petitioner to disclose information 
SRC 04 123 50831 
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regarding "[tlhe proposed nature of the office describing the scope of the entity, its organizational structure, 
and its financial goals;" as well as "[tlhe size of the United States investment and the financial ability of the 
foreign entity to remunerate the beneficiary and to commence doing business in the United States." See 8 
C.F.R. ij 214.2(1)(3)(v)(C). This evidence should demonstrate a realistic expectation that the enterprise will 
succeed and rapidly expand as it moves away from the developmental stage to full operations, where there 
would be an actual need for a manager or executive who will primarily perform qualifying duties. 
The petitioner did submit a "business plan" for the U.S. entity. However, this document, consisting of less 
than two pages of text, describes the company in the most general terms and provides no detailed information 
regarding "the scope of the entity, its organizational structure, and its financial goals." Specifically, it is 
unclear from the record what the intended organizational structure of the U.S. entity will be, nor is there a 
timeframe provided for when additional staff would be hired. The business plan indicates that there would be 
a vice presidentisales manager and a production manager in addition to the beneficiary. However, there is no 
evidence in the record that these persons have already been hired, or will be hired at any particular point in 
time. Similarly, the petitioner stated in the letter accompanying the initial petition that the beneficiary "will 
hire as many employees as he considers necessary" to carry out the business of the U.S. entity, without any 
specific timeframe or number. However, the petitioner must establish eligibility at the time of filing the 
nonimrnigrant visa petition. A visa petition may not be approved at a future date after the petitioner or 
beneficiary becomes eligible under a new set of facts. Matter of Michelin Tire Corp., 17 I&N Dec. 248 (Reg. 
Comm. 1978). As such, the record does not satisfactorily demonstrate that the US, entity will have a staff 
that would sufficiently support the beneficiary in a managerial or executive position within one year of 
approval of the petition. 
Based on the evidence presented, the AAO finds that the petitioner has not established that the beneficiary 
will be employed in the U.S. entity in a primarily managerial or executive capacity, or that the U.S. entity will 
support a managerial or executive position, within one year of the petition. 
Beyond the director's decision, the AAO notes that there is a material discrepancy in the record regarding the 
share ownership of the U.S. entity that the petitioner has failed to address in this proceeding. The petitioner 
indicated on the L supplement to the Form 1-129, and in the accompanying letter of support, that the U.S. 
entity is 100% owned by the foreign entity. However, the only evidence of share ownership in the U.S. entity 
that the petitioner has submitted is a copy of the U.S. company's share certificate number I, issued on March 
22, 2004, showing that the foreign entity holds "seventy 70% shares [sic]" rather than 100% of the shares of 
the U.S. entity. The petitioner has neither acknowledged nor explained this inconsistency. 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). 
Doubt cast on any aspect of the petitioner's proof may, of course, lead to a reevaluation of the reliability and 
sufficiency of the remaining evidence offered in support of the visa petition. Id. For this additional reason, 
the petition will 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 the initial decision. See 
Spencer Enterprises, Inc. v, Uniled States, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 200 l), afjd. 345 F.3d 683 
SRC 04 123 5083 1 
Page 10 
(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). 
The petition will be denied for the above stated reasons, with each considered as an independent and 
alternative basis for denial. When the AAO denies a petition on multiple alternative grounds, a plaintiff can 
succeed on a challenge only if she shows that the AAO abused its discretion with respect to all of the AAO's 
enumerated grounds. See Spencer Enterprises, Inc. v. Uniled Stcrtes, 229 F. Supp. 2d at 1043. 
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 
director's decision will be affirmed and the petition will be denied. 
ORDER: The appeal is dismissed.