dismissed L-1A Case: Audio Systems Distribution

identifying data deleted to 
prevent clearly unwammted 
-invasion of personal privacy 
U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rrn. A3042 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
PUBLIC COPY 
,ERVICE CENTER 
 Date: 
Petition: 
 Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(15)(L) of the Immigration 
and Nationality Act, 8 U.S.C. 4 1101(a)(15)(L) 
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. 
dl ;-&La-- 
Robert P. Wiemann, Director 
/ Administrative Appeals Office 
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Page 2 
DISCUSSION: The Director, California Service Center, denied the intracompany transferee nonimmigrant 
visa petition. The matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal will 
be dismissed. 
The petitioner claims it is a corporation organized in the State of California in 2001. On the Form 1-129, Petition 
for Nonirnmigrant Worker, the petitioner states that it is engaged in marketing and developing new products. The 
petitioner's Internal Revenue Service (IRS) Forms 1120, U.S. Corporation Income Tax Return, indicate that the 
petitioner is engaged in wholesale distribution of audio systems. The petitioner seeks to extend the temporary 
employment of the beneficiary as its branch manager. Accordingly, the petitioner endeavors to classify the 
beneficiary as a nonimmigrant intracompany transferee pursuant to section 101(a)(15)(L) of the Immigration and 
Act (the Act), 8 U.S.C. $j 1101(a)(15)(L). The petitioner claims that it is a subsidiary of 
Seoul, South Korea. 
The director denied the petition on January 28, 2005, determining that the petitioner had not established that 
the beneficiary had been or would be employed in a primarily managerial or executive capacity. 
On appeal, counsel for the petitioner submits a three-page brief. 
To establish L 1 eligibility under section 101(a)(15)(L) of the Immigration and Nationality Act (the Act), 8 
U.S.C. 4 1101(a)(15)(L), the petitioner must meet certain criteria. Specifically, within three years preceding 
the beneficiary's application for admission into the United States, a qualifying organization must have 
employed the beneficiary in a qualifying managerial or executive capacity, or in a specialized knowledge 
capacity, for one continuous year. Furthermore, the beneficiary must seek to enter the United States 
temporarily to continue rendering his or her services to the same employer or a subsidiary or affiliate thereof 
in a managerial, executive, or specialized knowledge capacity. 
The regulation at 8 C.F.R. 
 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. 
The issue in this matter is whether the petitioner has established that the beneficiary has been and will be 
employed in a primarily managerial or executive capacity for the petitioner. 
Section 101 (a)(44)(A) of the Act, 8 U.S.C. $j 1 101(a)(44)(A), provides: 
The term "managerial capacity" means an assignment within an organization in which the 
employee primarily 
WAC 05 043 5095 1 
Page 3 
i. manages the organization, or a department, subdivision, function, or 
component of the organization; 
. . 
11. 
 supervises and controls the work of other supervisory, professional, or 
managerial employees, or manages an essential function within the 
organization, or a department or subdivision of the organization; 
... 
111. 
 if another employee or other employees are directly supervised, has the 
authority to hire and fire or recommend those as well as other personnel 
actions (such as promotion and leave authorization), or if no other employee 
is directly supervised, functions at a senior level within the organizational 
hierarchy or with respect to the function managed; and 
iv. 
 exercises discretion over the day 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)(44)(B) of the Act, 8 U.S.C. 5 1 10l(a)(44)(B), provides: 
The term "executive capacity" means an assignment within an organization in which the 
employee primarily 
I. 
 directs the management of the organization or a major component or function 
of the organization; 
ii. establishes the goals and policies of the organization, component, or 
function; 
. . . 
111. 
 exercises wide latitude in discretionary decision making; and 
iv. 
 receives only general supervision or direction fkom higher level executives, 
the board of directors, or stockholders of the organization. 
In a November 22, 2004 letter appended to the petition, the petitioner stated: 
[The beneficiary] has been occupying the highest position in the company, a position 
involving executive functions. In this position, [the beneficiary] sets all corporate policies, 
and develops strategies for purchasing and marketing. 
On December 8, 2004, the director requested further evidence on this issue, including among other items: a 
more detailed description of the beneficiary's duties; a list of all employees under the beneficiary's direction; 
WAC 05 043 5095 1 
Page 4 
the percentage of time the beneficiary spent on his listed duties; the total number of employees at the U.S. 
location where the beneficiary would be employed; the petitioner's organizational chart showing the current 
names of all executives, managers, supervisors, and number of employees within each department or 
subdivision, clearly identifying the beneficiary's position on the chart; a list of all of the U.S. company's 
employees fi-om the date of establishment to the present, including names, job titles, and social security 
numbers, beginning and ending dates of employment, and wages per week; and copies of the U.S. company's 
California Employment Development Department (EDD) Forms DE-6, Quarterly Wage Report, for all 
employees for the last three quarters that were accepted by the State of California. 
In a January 13,2005 response, counsel for the petitioner indicated that the petitioner currently employed two 
individuals but had employed two to four individuals over the past few years. The petitioner provided an 
"organizational chart" showing the beneficiary in the position of president and one individual in the position 
of sales manager. 
The petitioner in a statement attached to the response indicated: 
With regard to the beneficiary's duties, he will continue to occupy the highest position in the 
petitioning company. He will be essentially unsupervised, and his duties will entail directing 
the overall management and control of the petitioning company, establishing policy and 
goals, exercising wide latitude in discretionary decision-malung and subject only to 
supervision of the parent company board of directors. In addition, to the foregoing executive 
duties, the beneficiary also will continue [to] be hiring, firing, promoting, and demoting 
personnel. He will be exercising complete discretion over the enterprise's day-to-day 
operation. The beneficiary will continue to exercise the skill requisite for this position as can 
be seen from the last few years in this position. 
The petitioner also provided its California Forms DE-6 for the 2003 year and for the first three quarters of 
2004. The California Forms DE-6 confirmed that the petitioner had employed one individual, the beneficiary, 
in the last three quarters of 2003 and the first and second quarter of 2004. The California Forms DE-6 for the 
first quarter of 2003 and the third quarter of 2004 showed the petitioner had employed the beneficiary and one 
other individual. The petitioner did not provide a copy of the petitioner's California Form DE-6 for the fourth 
quarter of 2004, the quarter in which the petition was filed. 
On January 28, 2005, the director denied the petition, observing that an individual who manages a small 
business does not necessarily satisfy the criteria set out in the statutory definition of "managerial capacity." 
The director observed that the petitioner had not established that it had reached or would reach the 
organizational complexity wherein hiringlfiring personnel, discretionary decision-making, and setting 
company goals and policies would constitute significant components of the duties performed on a day-to-day 
basis. The director determined that the record established that a preponderance of the beneficiary's duties 
would be directly providing the services of the organization and supervising no employees. The director 
concluded that the petitioner had failed to establish that the beneficiary would be employed primarily in a 
managerial or executive capacity. 
On February 25,2005, counsel for the petitioner submitted a Form I-290B, Notice of Appeal, stating that: 
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The District Director incorrectly determined that the Beneficiary was not a Manager. The 
District Director's interpretation of the statutory language defining "Manager" in the context 
of an L-1 petition was far to limiting. The CIS (previously INS) had previously accorded the 
Beneficiary L-1 status as a "Manager" with the exact same job duties, as those set forth in the 
request to extend the beneficiary's L-1 status. 
Counsel also submitted a brief indicating that Citizenship and Immigration Services (CIS) (previously the 
Immigration and Naturalization Service) approved a petition to classify the beneficiary as an L-1A 
intracompany transferee for a period of one year as well as a two-year extension of the beneficiary's L-1A 
classification. Counsel claims that the record shows "that over the past three years the petitioner has had 
between one and four employees (see DE-6 forms, previously provided) and that the beneficiary supervised 
and managed all of these employees." Counsel also contends that the beneficiary had been making decisions 
to hire and fire personnel, setting company goals and policies, and other discretionary decision-making on a 
daily basis and that the beneficiary had total authority over the running of the petitioning company, in 
consultation with the parent Korean Company's board of directors. 
Counsel's contentions are not persuasive. 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. 
214.2(1)(3)(ii). The petitioner does not clarify whether the beneficiary is claiming to be primarily engaged in 
managerial duties under section 101(a)(44)(A) of the Act, or primarily executive duties under section 
101(a)(44)(B) of the Act. In this matter, although the petitioner initially seemed to claim that the beneficiary 
would perform primarily executive tasks, the AAO observes that on appeal counsel for the petitioner suggests 
that the beneficiary will perform primarily managerial duties. A beneficiary may not claim to be employed as 
a hybrid "executive/manager" and rely on partial sections of the two statutory definitions. If the petitioner 
chooses to represent the beneficiary as both an executive and a manager, it must establish that the beneficiary 
meets each of the four criteria set forth in the statutory definition for executive and the statutory definition for 
manager. 
The petitioner in this matter has failed to provide a comprehensive description of the beneficiary's duties. The 
petitioner's initial description of the beneficiary's duties paraphrased an element of the definition of executive 
capacity. See section 101(a)(44)(B)(ii) of the Act. In response to the director's request for evidence, the 
petitioner submitted a broad overview of the beneficiary's duties and his place within the petitioner's 
organizational structure. Stating that the beneficiary will occupy the highest position in the company and that 
the beneficiary will be unsupervised is insufficient to describe what the beneficiary will do on a daily basis. 
Likewise, paraphrasing portions of the definitions of managerial and executive capacity do not convey an 
understanding of the beneficiary's actual daily duties or what his role in the organization entails. Conclusory 
assertions regarding the beneficiary's employment capacity are not sufficient. Merely repeating the language 
of the statute or regulations does not satisfy the petitioner's burden of proof. Fedin Bros. Co., Ltd. v. Sava, 
724 F. Supp. 1103, 1108 (E.D.N.Y. 1989), affd, 905 F. 2d 41 (2d. Cir. 1990); Avyr Associates, Inc. v. 
Meissner, 1997 WL 188942 at *5 (S.D.N.Y.). The actual duties themselves will reveal the true nature of the 
employment. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. at 1108. 
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Page 6 
In addition, based on the current record, the AAO is unable to determine whether the claimed managerial 
duties constitute the majority of the beneficiary's duties, or whether the beneficiary primarily performs 
non-managerial administrative or operational duties. The petitioner's description of the beneficiary's job 
duties does not establish what proportion of the beneficiary's duties is managerial in nature, and what 
proportion is actually non-managerial. See Republic of Transkei v. INS, 923 F.2d 175, 177 (D.C. Cir. 1991). 
Further, the petitioner's failure to provide a detailed description of the beneficiary's job duties with a 
percentage of time allocated to each listed duty, despite the director's request for this evidence is a ground for 
denying the petition. 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). 
The petitioner in this matter failed to provide a description of the beneficiary's duties that would establish the 
beneficiary's employment as an executive as defined in the statute. The statutory definition of the term 
"executive capacity" focuses on a person's elevated position within a complex organizational hierarchy, 
including major components or functions of the organization, and that person's authority to direct the 
organization. Section 10 l(a)(44)(B) of the Act, 8 U.S.C. 9 1 101(a)(44)(B). Under the statute, a beneficiary 
must have the ability to "direct the management" and "establish the goals and policies" of that organization. 
Inherent to the definition, the organization must have a subordinate level of managerial employees for the 
beneficiary to direct and the beneficiary must primarily focus on the broad goals and policies of the 
organization rather than the day-to-operations of the enterprise. An individual will not be deemed an 
executive under the statute simply because they have an executive title or because they "direct" the enterprise 
as the owner or sole managerial employee. The petitioner in this matter has not established that it employed a 
subordinate level of managerial employees when the petition was filed. 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 (Comm. 1998) (citing Matter of Treasure Craft of California, 14 
I&N Dec. 190 (Reg. Comm. 1972)). 
Likewise, the petitioner has not established that the beneficiary would perform primarily managerial duties as 
defined by statute. The petitioner has not provided evidence that it employs individuals, in addition to the 
beneficiary, on a continuous basis. Contrary to counsel's claim that the petitioner has employed two to four 
personnel in the past, the record shows that the petitioner employed only the beneficiary the majority of the 
time and only intermittently employed a second individual. Without documentary evidence to support the 
claim, the assertions of counsel will not satisfy the petitioner's burden of proof. The unsupported 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). Thus, 
the record does not establish that the beneficiary's duties primarily comprise the supervision of other 
personnel. Further, if a petitioner claims that a beneficiary's duties involve supervising employees, the 
petitioner must establish that the subordinate employees are supervisory, professional, or managerial. See 
6 101(a)(44)(A)(ii) of the Act. 
As the director observed, the petitioner has also failed to establish that the beneficiary's duties comprise the 
duties of a function manager. If a petitioner claims that the beneficiary is managing an essential function, the 
petitioner must furnish a written job offer that clearly describes the duties to be performed, i.e. identify the 
function with specificity, articulate the essential nature of the function, and establish the proportion of the 
WAC 05 043 50951 
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beneficiary's daily duties attributed to managing the essential function. 8 C.F.R. 8 214.2(1)(3)(ii). In addition, 
the petitioner's description of the beneficiary's daily duties must demonstrate that the beneficiary manages the 
function rather than performs the duties related to the function. An employee who "primarily" performs the 
tasks necessary to produce a product or to provide services is not considered to be "primarily" employed in a 
managerial or executive capacity. See sections 101(a)(44)(A) and (B) of the Act (requiring that one 
"primarily" perform the enumerated managerial or executive duties); see also Matter of Church Scientology 
Int'l., 19 I&N Dec. 593,604 (Comm. 1988). 
The record in this matter does not establish who carries out the petitioner's day-to-day operational and 
administrative tasks, other than the beneficiary. The petitioner has not provided substantive evidence that it 
employed a second individual when the petition was filed in December 2004. The petitioner must establish 
eligibility at the time of filing the nonimmigrant 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). 
Of note, it is appropriate for CIS to consider the size of the petitioning company in conjunction with other 
relevant factors, such as a company's small personnel size, the absence of employees who would perform the 
non-managerial or non-executive operations of the company, or a "shell company" that does not conduct 
business in a regular and continuous manner. See, e.g. Systronics Corp. v. INS, 153 F. Supp. 2d 7, 15 (D.D.C. 
2001). In the present matter, the petitioner has not explained how the reasonable needs of the petitioning 
enterprise justify the beneficiary's performance of non-managerial or non-executive duties. Again, going on 
record without supporting documentary evidence is not sufficient for purposes of meeting the burden of proof 
in these proceedings. Matter of Sof$ci, 22 I&N Dec. at 165. 
On appeal, counsel references the director's review of the beneficiary's managerial or executive capacity on 
two prior occasions when the director approved the petitioner's nonimrnigrant petitions submitted on behalf of 
the beneficiary. However, it must be emphasized that each petition filing is a separate proceeding with a 
separate record and a separate burden of proof. See 8 C.F.R. 3 103.8(d). The prior approvals do not preclude 
CIS form denying an extension of the original visa based on a reassessment of the petitioner's qualifications. 
Texas AM Univ. v. Upchurch, 99 Fed. Appx. 556,2004 WL 1240482 (5th Cir. 2004). 
The AAO determines that if the previous nonirnmigrant petitions were approved based on the same 
unsupported assertions that are contained in the current record, the approval would constitute material and 
gross error on the part of the director. The AAO is not required to approve applications or petitions where 
eligibility has not been demonstrated, merely because of prior approvals that may have been erroneous. See, 
e.g. Matter of Church Scientology International, 19 I&N Dec. at 597. It would be absurd to suggest that CIS 
or any agency must treat acknowledged errors as binding precedent. Sussex Engg. Ltd. v. Montgomery, 825 
F.2d 1084, 1090 (6th Cir. 1987), cert. denied, 485 U.S. 1008 (1988). 
Furthermore, counsel should note that the AAO's authority over the service centers is comparable to the 
relationship between a court of appeals and a district court. Even if a service center director had approved the 
nonimmigrant petitions on behalf of the beneficiary, the AAO would not be bound to follow the contradictory 
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decision of a service center. Louisiana Philharmonic Orchestra v. INS, 2000 WL 282785 (E.D. La.), afld, 
248 F.3d 1 139 (5th Cir. 2001), cert. denied, 122 S.Ct. 5 1 (2001). 
The petitioner has not submitted evidence on appeal sufficient to overcome the director's determination. 
Accordingly, the appeal will be dismissed. 
The petition will be denied for the above stated reasons, with each considered as an independent and 
alternative basis for denial. 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. $ 1361. Here, that burden has 
not been met. 
ORDER: The appeal is dismissed.