dismissed L-1B Case: Property Management

U.S. Department of Homeland Security 
20 Massachusetts Ave., N.W., Rm. A3042 
Washington. DC 20529 
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and Immigration 
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FILE: SRC 04 026 50466 Office: TEXAS SERVICE CENTER Date: 
IN RE: 
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 10 1 (a)(15)(L) of the Immigration 
and Nationality Act, 8 U.S.C. 5 1101 (a)(15)(L) 
ON BEHALF OF PETITIONER: 
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. 
dministrative Appeals Office 
SRC 04 026 50466 
Page 2 
DISCUSSION: The nonimmigrant visa petition was denied by the Director, Texas Service Center. The 
matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismiissed. 
According to the documentary evidence contained in the record the petitioner was established May 23, 2003, 
and claims to be en a ed in property management and consulting services. The petitioner claims to be an 
affiliate o 
CC 
Management Company, located in Monte-Carlo, Monaco. The petitioner seeks 
to extend its aut orization to employ the beneficiary temporarily in the United States as its assistant manager 
for a period of two years. The beneficiary had been previously approved for L-1B status and is now 
petitioning for the second extension of specialized knowledge capacity. 
The director determined that the petitioner had failed to establish that: (1) the beneficiary had been or would 
be employed primarily in a managerial or executive capacity; (2) the foreign entity has been doing business; 
and (3) the petitioner has secured sufficient physical premises to house its office. 
On appeal, counsel disagrees with the director's decision and asserts that the petitioner has submitted 
sufficient evidence to demonstrate that the beneficiary has been and will be employed primarily in a 
managerial or executive capacity; that the foreign entity has been doing business; and that the petitioner has 
secured sufficient physical premises to house its office. 
To establish L- 1 eligibility under section 10 1 (a)(15)(L) of the Immigration and Nationality Act (the Act), 
8 U.S.C. 9 1101(a)(15)(L), the petitioner must demonstrate that the beneficiary, within three years preceding 
the beneficiary's application for admission into the United States, has been employed abroad in a qualifying 
managerial or executive capacity, or in a capacity involving specialized knowledge, for one continuous year 
by a qualifying organization, and seeks to enter the United States temporarily in order to continue to render 
his or her services to the same employer or a subsidiary or affiliate thereof, in a capacity that is managerial, 
executive, or involves specialized knowledge. 
The regulation at 8 C.F.R. fj 214.2(1)(l)(ii) states, in part: 
Intracompnny transferee means an alien who, within three years preceding the time of his or her 
application for admission into the United States, has been employed abroad continuously for one 
year by a firm or corporation or other legal entity or parent, branch, affiliate, or subsidiary 
thereof, and who seeks to enter the United States temporarily in order to render his or her 
services to a branch of the same employer or a parent, affiliate, or subsidiary thereof in a capacib 
that is managerial, executive, or involves specialized knowledge. 
The regulation at 8 C.F.R. 9 214.2(1)(3) states that an individual petition filed on Form 1-129 shall be 
accompanied by: 
(i) Evidence that the petitioner and the organization which employed or will 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. 
SRC 04 026 50466 
Page 3 
(iii) Evidence that the alien has at least one continuous year of full time emp1oyme:nt 
abroad with a qualifying organization within the three years preceding the filing of 
the petition. 
(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 himher 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. 
The first issue in this proceeding is whether the petitioner has submitted sufficient evidence to establish that 
the foreign entity has been doing business. 
The regulations at 8 C.F.R. €j 214.2(1)(l)(ii)(G) state: 
QualzJLing organization means a United States or foreign firm, corporation, or other legal 
entity which: 
(I) Meets exactly one of the qualifying relationships specified in the definitions of a 
parent, branch, affiliate or subsidiary specified in paragraph (l)(l)(ii) of this section; 
(2) Is or will 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 intracompany transferee; and 
(3) Otherwise meets the requirements of section 10 l(a)(15)(L) of the Act. 
The regulations at 8 C.F.R. 3 214.2(1)(l)(ii)(H) state: 
Doing business means the regular, systematic, and continuous provision of goods and/or 
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. 
In the letter of support, dated October 23,2003, the petitioner described the foreign entity as: 
We have an affiliated office in MonacoFrance . .. from which [the beneficiary] was 
transferred in 2001. The business is done in the legal form of a sole proprietorship wit- 
re, corporate formation documents are not available. The 
in Monaco primarily provides services such as financial 
and administrative work. The clients are both legal entities - 
and individuals. The business conducted in Monaco is quite similar to the business of [the 
U.S. entity]. 
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In the request for evidence, dated November 18, 2003, the director requested that the petitioner submit: 
"banking records, employee rosters, evidence of business conducted, such as invoices, bills of sale, product 
brochures of goods sold or produced by the company." The director further requested, "If any foreign 
language documentary evidence is submitted, please also provide English translations." 
In response to the director's request for evidence, the petitioner stated in part: 
[The foreign entity] is formed as a sole proprietorship under the laws of MonacoErance and 
that the applicable laws do not require any formal registration. Therefore, it is not possible to 
provide court documents, stock certificates or similar documents evidencing the registration 
of the company and its sole ownership by m 
The MonacoIFrance based sole proprietorship is also an ongoing business. The main purpose 
is to provide support services to the petitioner as well as to the petitioner's clients. Among 
others, the petitioner has an agreement with the foreign affiliate according to which the latter 
company is responsible for providing financial services to the petitioner (Exhibit U). The 
foreign affiliate currently employs 2 people (Exhibits X-Z). 
As evidence of the foreign entity's doing business, the petitioner submitted copies of an affidavit from 
an agreement between the petitioner and the foreign entity, a lease agreement for a studio 
e company's payroll records. The petitioner also submitted documents evidencing the 
company's authority to hire employees, the company as a registered employer, the company's social security 
obligations, bank statements, and invoices. 
The director determined that evidence demonstrating that as a lease for a studio apartment in 
Monaco and employs two secretaries does not establish that the foreign entity is doing business. 
On appeal, counsel argues that the evidence submitted with the petition and in response to the director's 
request for evidence is sufficient to establish that the foreign entity is doing business. Counsel also argues 
that the foreign entity is a real property and asset management company. The petitioner submits no new 
evidence on appeal. 
The term "doing business" is defined in the regulations as "the regular, systematic, and continuous provision 
of goods and/or 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. 9 214.2(1)(l)(ii). In r'eview of 
the record, the evidence submitted is insufficient to establish that the foreign entity is doing business. The 
record shows thais a sole proprietor and operates his business out of a studio apartment. The 
majority of the business records submitted have not been translated although the directly specifically 
requested that translated copies of all business records be submitted. Because the petitioner failed to submit 
certified translations of the documents, the AAO cannot determine whether the evidence supports the 
petitioner's claims. See 8 C.F.R. tj 103.2(b)(3). Accordingly, the evidence is not probative and will not be 
accorded any weight in this proceeding. For this reason, the petition may not be approved. 
SRC 04 026 50466 
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The second issue in this proceeding is whether the petitioner has submitted sufficient evidence to establish 
that the beneficiary was employed by the foreign entity in a managerial or executive capacity or in a 
specialized knowledge capacity. 
Section 101(a)(44)(A) of the Act, 8 U.S.C. 3 1 10l(a)(44)(A), provides: 
The term "managerial capacity" means an assignment within an organization in which the 
employee primarily- I 
(1) 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; 
(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 101 (a)(M)(B) of the Act, 8 U.S.C. 5 1 10 l(a)(44)(B), provides: 
The term "executive capacity" means an assignment within an organization in which the 
employee primarily- 
(1) Directs the management of the organization or a major component or 
function of the organization; 
(i i) 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-level 
executives, the board of directors, or stockholders of the organization. 
Section 214(c)(2)(B) of the Act, 8 U.S.C. fj 1184(c)(2)(B), provides the following: 
SRC 04 026 50466 
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For purposes of section 101(a)(15)(L), an alien is considered to be serving in a capacity 
involving specialized knowledge with respect to a company if the alien has a special 
knowledge of the company product and its application in international markets or has an 
advanced level of knowledge of processes and procedures of the company. 
The regulation at 8 C.F.R. 9 214.2(1)(l)(ii)(D) defines "specialized knowledge" as: 
[Slpecial knowledge possessed by an individual of the petitioning organization's product, 
service, research, equipment, techniques, management, or other interests and its application in 
international markets, or an advanced level of knowledge or expertise in the organization's 
processes and procedures. 
The petitioner initially described the beneficiary's past and proposed duties as "property and asset 
management and other consulting services." The petitioner submitted a copy of an employment agreement 
between the foreign entity and the beneficiary in which his job duties abroad were described as: "[The 
beneficiary] exercises the function of assistant to the manager according to the profile of the position and his 
functions are described separately." The petitioner submitted a copy of the beneficiary's resume in which his 
job duties abroad were described as: "Consulting, Management, Property management, and Private asset 
management." 
In response to the director's request for evidence on the subject, counsel described the beneficiary's job duties 
abroad as: "property management + other management including private asset management," "'business 
consulting," and "administration." Counsel asserted that the beneficiary provided the core services of the 
foreign entity and supervised the business operations, including administrative matters. Counsel further 
asserted that the beneficiary was subject only to the directions o Counsel contended that the 
beneficiary's duties abroad required detailed knowledge of property management services including: 
"maintain rent roll, understandhegotiate rental agreements, rent collection, disbursements, accounting, and 
book keeping." Counsel also contended that the asset management services provided by the beneficiary to 
clients abroad required a full understanding of "their needs and goals, paired with the clients' trust." Counsel 
asserted that other workers in the industry did not commonly hold such characteristics, and that they were 
gained from years of gathering experience. Counsel argued that the foreign entity's organizational chart 
demonstrated that the beneficiary had supervisory and managerial authority over the foreign entity's other 
employees, namely two secretaries. 
The director determined that the beneficiary's education and prior professional experience enabled him to 
fulfill his duties and therefore, was a clear indicator that the position held by him abroad did not involve 
specialized knowledge. The director also determined that knowledge of real property and asset management 
services were common to the industry and therefore not specialized. The director noted that the beneficiary's 
job duties, as described, did not meet the regulatory requirement for specialized knowledge. The director also 
noted that although the evidence demonstrated that the foreign entity the beneficiary, 
and two secretaries, this was insufficient to establish that the beneficiary 
executive capacity. 
On appeal, counsel argues that the beneficiary was employed by the foreign entity in a specialized knowledge 
capacity and as a managerlsupervisor. Counsel describes the beneficiary's job duties abroad as: 
SRC 04 026 50466 
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- Provide company's real property and other consulting services to company's clients such 
as client correspondence/communication, rentJlease negotiations, coordinate and 
supervise maintenancetrepairlservice work, rent collections, bookkeeping and 
accounting; 
- Provide other asset management services such as investinglsupervising clients funds, 
bank negotiations1communication; 
- Supervise and direct all other activities including administrative work such as 
correspondence/communication with clients or other third parties, marketing, staff 
matters and payroll; [and] 
- Coordinate all activities with Mr. Kann. 
On review, the record as presently constituted is not persuasive in demonstrating that the beneficiary has been 
employed by the foreign entity in a specialized knowledge capacity. Although the petitioner asserts that the 
beneficiary's position requires specialized knowledge, the petitioner has not articulated any basis to the claim 
that the beneficiary is employed in a capacity requiring specialized knowledge. Other than submitting a 
general description of the beneficiary's job duties, the petitioner has not identified any aspect of the 
beneficiary's position which involves special knowledge of the foreign entity's product, service, research, 
equipment, techniques, management, or other interests. The petitioner has not submitted any evidence of the 
knowledge and expertise required for the beneficiary's position that would differentiate that employment from 
the position of any other real property and asset management manager at other employers within the industry. 
Simply going on record without supporting documentary evidence is not sufficient for the purpose of meeting 
the burden of proof in these proceedings. Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. 
Comm. 1972). Specifics are clearly an important indication of whether a beneficiary's duties involve 
specialized knowledge, otherwise meeting the definitions would simply be a matter of reiterating the 
regulations. See Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1 103 (E.D.N.Y. 1989), aff'd, 905 F.2d 41 
(2d. Cir. 1990). 
In addition, although the petitioner asserts that the beneficiary managed a subordinate staff, the record does 
not establish that the subordinate staff is composed of supervisory, professional, or managerial employees. 
See section 101(a)(44)(A)(ii) of the Act. A first-line supervisor will not be considered to be acting in a 
managerial capacity merely by virtue of his or her supervisory duties unless the employees supervised are 
professional. Section 10 1 (a)(44)(A)(iv) of the Act. Because the beneficiary primarily supervised a staff of 
non-professional employees, the beneficiary cannot be deemed to be primarily acting in a managerial 
capacity. Counsel argues that the beneficiary provided the core services of the foreign entity and supervised 
its' business operations, however, there is nothing in the record to substantiate this claim. Without 
documentary evidence to support the claim, the assertions of counsel will not satisfy the petitioner's burden of 
proof. The assertions of counsel do not constitute evidence. Matter of Obaigbena, 19 I&N Dec. 533, 534 
(BIA 1988); Matter of Laureano, 19 I&N Dec. 1 (BIA 1983); Matter of Ramirez-Sanchez, 17 I&N Dec. 503, 
506 (BIA 1980). Further, there is nothing in the record that demonstrates that the beneficiary establishes 
goals and policies or exercises a wide latitude in discretionary decision-making. For these reasons, the 
petition may not be approved. 
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The petitioner initially described the beneficiary's proposed duties as: "continue managing company under 
owner's supervision with primary focus on property management services (e.g., 
correspondence/communication with tenants, lease negotiations, rental receipt management, supervise 
maintenance, repair and tenant improvement work. In addition, he will continue to handle administrative 
matters." 
In the letter of support, dated October 23,2003, the petitioner described the beneficiary's duties as: 
The assistant manager's duties will primarily continue to include property management 
services. This includes communication and correspondence with existing and prospective 
tenants, lease negotiations, supervising building maintenance, repair work and tenant 
improvements, su~ervising rental income receipts and other tenant accounts such as cost and 
..2 
expense items. Further, under the supervisibn ofthe assistant manager will 
manage the business of our company on a daily basis which includes administrative matters. 
In response to the director's request for evidence, the petitioner stated that the beneficiary's job duties in the 
United States consisted of: "daily operations, customer relations, banking + accounting." The petitioner 
submitted a copy of the U.S. entity's organizational chart that depicted the beneficiary as assistant manager 
with a secretary, operating manager, and two parking attendants under his direction. 
The director noted that knowledge of property and other asset management services is common to the 
industry and therefore, the beneficiary's duties will not be specialized in nature. The director also noted that 
the ability of the beneficiary to understand the company's client's needs and goals and to gain their trust is not 
uncommon to the industry and therefore not considered specialized knowledge. The director concluded by 
stating that the beneficiary does not possess specialized knowledge of the company's service or product, and 
that the knowledge is not noteworthy or uncommon. 
On appeal, counsel argues that the evidence establishes that the beneficiary is working in a position requiring 
specialized knowledge. Counsel further argues that the beneficiary, in his capacity as assistant manager, 
provides the core services of the company, that he is subject only to the direction of the owner, and that he 
supervises other employees of the petitioner. Counsel reiterates the beneficiary's job duties, arguing that he 
not only provides property management and consulting services but also financial management services. 
Contrary to counsel's assertions, there is insufficient evidence in the record to establish that the beneficiary 
will be managing the U.S. organization or a department or function of the organization, supervising 
professional employees, or exercising discretion over the day-to-day operations of the entity. Without 
documentary evidence to support the claim, the assertions of counsel will not satisfy the petitioner's burden of 
proof. The assertions of counsel do not constitute evidence. Matter ofobaighena, 19 I&N Dec. 533, 534 
(BIA 1988); Matter of Laureano, 19 I&N Dec. 1 (BIA 1983); Matter of Ramirez-Sanchez, 17 I&N Dec. 503, 
506 (BIA 1980). 
Further, the record does not establish that the proposed position with the U.S. entity requires specialized 
knowledge or that the beneficiary will be employed in a specialized knowledge capacity. The proposed 
duties as described are insufficient to establish that the beneficiary possesses special knowledge of the 
petitioner's product or processes, which could not be easily imparted to another team leader or programmer 
within the petitioning company or within the industry. 
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It should be noted that the statutory definition of specialized knowledge requires the AAO to make 
comparisons in order to determine what constitutes specialized knowledge. The term "specialized 
knowledge" is not an absolute concept and cannot be clearly defined. As observed in 1756, Inc. v. Attorney 
General, "[slimply put, specialized knowledge is a relative . . . idea which cannot have a plain meaning." 
745 F. Supp. 9, 15 (D.D.C. 1990). The Congressional record specifically states that the L-1 category was 
intended for "key personnel." See generally, H.R. Rep. No. 91-851, 1970 U.S.C.C.A.N. 2750. The term "key 
personnel" denotes a position within the petitioning company that is "of crucial importance." Webster's I1 
New College Dictionary 605 (Houghton Mifflin Co. 2001). In general, all employees can reasonably be 
considered "important" to a petitioner's enterprise. If an employee did not contribute to the overall economic 
success of an enterprise, there would be no rational economic reason to employ that person. An employee of 
''crucial importance" or "key personnel" must rise above the level of the petitioner's average employee. 
Accordingly, based on the definition of "specialized knowledge" and the congressional record related to that 
term, the AAO must make comparisons not only between the claimed specialized knowledge employee and 
the general labor market, but also between that employee and the remainder of the petitioner's workforce. 
Here, the petitioner has indicated that the beneficiary qualifies in a specialized knowledge capacity based 
upon his; educational background and work experience. As the petitioner infers that anyone with the 
beneficiary's training and experience possesses "special knowledge" or an "advanced level of knowledge," the 
AAO must conclude that, while it may be correct to say that the beneficiary is a highly skilled and productive 
employee, thls fact alone is not enough to bring the beneficiary to the level of "key personnel." 
The petitioner's interpretation of the specialized knowledge provision is also objectionable, as it would allow 
virtually any skilled or experienced employee to enter the United States as a specialized knowledge worker. 
In Matter of Penner, the Commissioner discussed the legislative intent behind the creation of the specialized 
knowledge category. 18 I&N Dec. 49 (Comm. 1982). Although the definition of "specialized knowledge" in 
effect at the time of Matter of Penner was superseded by the 1990 Act to the extent that the former definition 
required a showing of "proprietary" knowledge, the reasoning behind Matter of Penner remains applicable to 
the current matter. The decision noted that the 1970 House Report, H.R. No. 91-851, was silent on the 
subject of specialized knowledge, but that during the course of the sub-committee hearings on the bill, the 
Chairman specifically questioned witnesses on the level of skill necessary to qualify under the proposed "L" 
category. In response to the Chairman's questions, various witnesses responded that they understood the 
legislation would allow "high-level people," "experts," individuals with "unique" skills, and that it would not 
include "lower categories" of workers or "skilled craft workers." Matter of Penner, supra at 50 
(citing H.R. Subcomm. No. 1 of the Jud. Comm., Immigration Act of 1970: Hearings on H.R. 445, 91st Cong. 
210, 218, 223, 240, 248 (November 12, 1969)). Reviewing the congressional record, the Commissioner 
concluded that an expansive reading of the specialized knowledge provision, such that it would include 
skilled workers and technicians, is not warranted. For the same reasoning, the AAO cannot accept the 
proposition that any skilled worker is necessarily a specialized knowledge worker. Accordingly, there has 
been insufficient evidence submitted to establish that the beneficiary has been or will be employed in a 
specialized knowledge capacity and that the U.S. entity's position requires specialized knowledge. For this 
additional reason, the petition may not be approved. 
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. 3 1361. The petitioner has not sustained that burden. 
ORDER: The appeal is dismissed