dismissed L-1A Case: Auto Parts

U.S. Department of Homeland Security 
20 Massachusetts Ake.. N W . Rm. A3042 
s dab delead $0 Washington, DC 20529 - -- 
PrnV$@C sPa1~1y aa%~Rrmt& 
afwmd Tp U.S. citizenship 
and Immigration 
.***T P e7.1 
File: WAC-04-1 14-5 161 7 Office: CALIFORNIA SERVICE CENTER Datc: 
JUN 2 8 2005 
Petition: Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(15)(L) of the Immigration 
and Nationality Act, 8 U.S.C. 5 1 lOl(a)(lS)(L) 
INSTRUCTIONS: 
This is the dccision of the Administrative Appeals Office in your case. All documents have been returned to 
the office that originally decided your casc. Any further inquiry must be made to that office. 
obert P. Wiemann, Director 
Administrative Appeals Office 
WAC-04-1 14-5 16 17 
Page 2 
DISCUSSION: The Dircctor, California Service Center, denied the petition for a nonimmigrant visa. The 
matter is now before the Administrative Appeals Office (AAO) on appeal. The AAO will dismiss the appeal. 
The petitioncr filed this nonimmigrant petition seeking to extend the employment of its Vice President and 
CEO as an L-I A nonimmigrant intracompany transferee pursuant to section 101(a)(15)(L) of the Immigration 
and Nationality Act (the Act), 8 U.S.C. tj 1101(a)(15)(L). The petitioner is a corporation organized in the 
ioner claims that it is the 
, located in Taiyuan City, 
China. The beneficiary was initially approved for L-1A status to open a new office in the United States. and 
Citizenship and Immigration Services (CIS) subsequently approved a petition to extend the beneficiary's 
status. The petitioner now seeks to again extend the beneficiary's stay. 
The director denied the petition concluding that the petitioner did not establish that the beneficiary will be 
employed in the United States in a primarily managcrial or executive capacity. 
The petitioner subsequently filed an appeal. The director declined to treat the appeal as a motion and 
forwarded the appeal to the AAO for review. On appeal. counsel for the petitioner asserts that the beneficiary 
will be employed in a primarily managcrial and executive capacity. In support of this assertion, counsel 
submits a brief, additional evidence, previously provided documents, and a copy of an unpublished AAO 
decision. 
To establish eligibility for the L-1 nonimmigrant visa classification, the petitioner must meet the criteria 
outlined in section 101(a)(15)(L) of the Act. Specifically, a qualifying organization must have ernployed the 
beneficiary in a qualifying managerial or executive capacity, or in a specialized knowledge capacity, for one 
continuous year within three years preceding the beneticiary's application for admission into the United 
States. In addition. the beneficiary must seek to enter the United States temporarily to continue rendering his 
or her services to the same employcr or a subsidiary or affiliate thereof in a managerial, executive, or 
specialized knowledge capacity. 
The issue in the present matter is whether the beneficiary will be employed by the United States entity in a 
primarily managerla1 or executive capacity. 
Section 101 (a)(44)(A) of the Act, 8 U.S.C. tj 1 101(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 
en~ployees, or manages an essential function within the organization, or a department 
or subdivision of the organization; 
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Page 3 
(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) cxercises 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 11 01(a)(44)(B), defincs the term "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 orgat~ization, 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. 
In a letter filed with the initial petition on March 15,2004. the petitioner described the beneficiary's job duties 
as follows: 
[The beneficiary] has be [sic] responsible for the [petitioner's] entire operation including 
marketing, distribution. finance and accounting, budgeting and cost control, business 
development, and administrative. [The beneficiary's] primary respo~lsibilities have been 
involved in aggressively establishing and developing the [petitioner]. Thus, she has been 
engaged mainly in business expansion and organizational aspects of the company, 
establishing commitments with U.S. companies, developing the company's imagefpresence in 
the U.S. market, and supervising the company's advertising and personnel functions. [The 
beneficiary] has been instrumental in [the petitioner's] purchase of [its auto parts subsidiary]. 
In her capacity as CFO, [the beneficiary] has been granted total autonomy and dccision- 
making discretion with regards to all financial operations of the [petitioner], including 
supervision of personnel through planning, directing. and coordinating the activities of 
employees. She ensures goals and objectives are accomplished within prescribed time frames 
and budger limitations. She has been responsible for directing and coordinating U.S. 
company operations to achieve maximum efficiency, economy of cost, and optimum profit. 
WAC-04- 1 14-5 16 1 7 
Page 4 
The Beneficiary is also charged with devising, implementing. and administering the financial 
plans and policies of the company. 
On March 19, 2004, the director requested additional evidence. Specifically, the director instructed the 
petitioner as follo\vs: 
Submit a more detailed description of the beneficiary's duties in the U.S.. Be specific. 
Indicate exactly whom the beneficiary directs including their job title and position 
description. List all employees under the beneficiary's direction. Also, indicate the 
percentage of time spent in each of the listed duties. 
In a response dated March 29, 2004, the petitioner indicatcd that the beneficiary will direct the work of 12 
employees in the United States, and she will indirectly oversee and coordinate the work of 23 outside sales 
representatives. The petitioner further described the beneficiary's duties as follows: 
Establish, implement and enforce goals and policies pertaining to marketing and 
operations; 
Develop, execute and supervise marketing strategies; 
Develop the company's imagelpresence in the U.S. market, 
Manage recruiting, training, retention, evaluation and termination of employees; 
Devise, implement, and administer the financial plans and policies of the company; 
Review financial and accounting information to ensure agreement with goals; 
Periodically assess business plans and policy to ensure continued profitability; 
Set long-range plans and organization mission; and 
Prepare and oversee annual operating budget, 
The percentage of Beneficiary's time for each task is broken down as follows: 
Operations Management (e.g. creating, revising, implementing goals and policies of 
the company) - 40% 
Marketing Management (c.g. developing marketing plans, customer service and 
maintenance) - 40% 
Human Resource Management (e.g. recruiting and dismissal of employees, training 
and supervision) - 20% 
On April 1, 2004, the director denied the petition. The d~rector determined that the pctitioner did not establish 
that the beneficiary w~ll be employed in the United States in a primarily managerial or executive capacity. 
The director stated that "it appears that the beneficiary has been and/or will be performing many aspects of the 
day-to-day operations of the business." The director found that the petitioner failed to provide sufficient 
detail regarding the beneficiary's duties to establiph that the majority of her time will be devoted to managerial 
or executive tasks. The director notcd that the petitioner's quarterly report for the fourth quarter of 2003 
shows that it employed four employs in add~tional to the beneficiary during the covered period. The director 
stated that the petitioner "does not possess the organi7ational co~nplexity to warrant having an executive." 
WAC-04- 1 14-5 16 17. 
Page 5 
The director concluded that "the petitioner's evidence is not persuasive in establishing that the beneficiary will 
be managing a subordinate staff of professional, managerial, or supervisory personnel who [will] relieve [her] 
from performing non-qualifying dutics." 
On appeal, counsel for the petitioner asserts that thc beneficiary will be employed in a primarily managerial 
capacity. Counsel submits a brief in which he states the following: 
[Tlhe point here . . . is not whether the job duties are sufficiently [sic] in details to establish 
the managerial nature of the job, but to deterniinc whethcr the beneficiary has supervised 
other managers or professionals, thereby proving that the beneficiary has not been performing 
many aspects of the day-to-day operations of thc business. 
Counsel cites two unpublished AAO dicisions to stand for the proposition that the sole employee of a 
petitioncr can qualifying as a manager or executive. Counsel claims that the director ignored the fact that the 
petitioner acquired a second business that employs more than seven individuals and 20 sales representatives. 
Counsel asserts that the beneficiary will supervise three managers employed by the petitioner, including an 
assistant manager, a sales manager, and a purchasing manager. Counsel further indicated that the beneficiary 
will oversee three managers and one supervisor employed by its acquired subsidiary, including a general 
manager, an office manager, and a vice general manager. Counsel disci~sscs the facts of a third unpublished 
AAO decision, and states that "[iln light of the reasoning of [the unpublished matter], . . . [CIS] has abused its 
discretionary authority in denying the petition by assuming that 1) the beneficiary spent most of her time 
performing nonmanagerial duties, 2) the beneficiary did not manage other managers and professionals." 
Upon review, counsel's assertions are not persuasive. When examining the executive or managerial capacity 
of the beneficiary, the AAO will look first to thc petitioner's description of the job duties. See 8 C.F.R. 
242()(3)(ii) The petitioner's dcscription of thc job duties must clearly describe the duties to be 
performed by the beneficiary and indicate whcther such duties are either in an executive or managerial 
capacity. Id. 
In the instant matter, counsel asserts that the beneficiary will be cmployed in both a prtmarily managerial and 
executive capacity. To sustain such an assertion, the petitioner must establish that the beneficiary meets each 
of the four criteria set forth in the statutory definition for executive duties under section 1 Ol(a)(44)(B) of the 
Act, and the statutory definition for managerial dutics under section 101 (a)(44)(A) of the Act. At a minimum, 
the petitioner must establish that the beneficiary is primarily employed in one or the other capacity. See 
8 C.F.R. 3 21 4.2(1)(3)(ii). 
However, the job descriptions submitted by the petitioner arc brief and vague, providing little insight into the 
true nature of the tasks the beneficiary will perform in the United States. For example, the petitioner stated 
that the beneficiary "has been engaged mainly in business expansion and organi~ational aspects of the 
company, establishing colnmitments with U.S. companies, developing the company's imagelpresence in the 
U.S. market, and supervising the company's advertising and personnel hnctions." Yet, this broad statement 
does not indicate what tasks the beneficiary will perform on a daily basis. The petitioner provided that the 
beneficiary "has been granted total autonomy and decision-making discretion with regards to all financial 
WAC-04-1 14-5 16 17 
Page 6 
operations of the [petitioner]." yet this statement fails to specie what associated tasks the beneficiary will 
perform. The petitioner stated that the beneficiary "has been responsible for directing and coordinating U.S. 
company operations to achieve maximum efficiency, economy of cost. and optimum profit." However, this 
general assertion fails to describe any of the beneficiary's actual duties. The petitioner stated that the 
beneficiary will "[elstablish, implement and enforce goals and policies pertaining to marketing and 
operations," "[dlevelop, execute and supervise marketing strategies," and "[dlevelop the company's 
imagelpresence in the U.S. market." Yet, in the absence of fitrther explanation, the petitioner has failed to 
show that these are managerial duties rather than non-qualifying marketing and sales tasks. Specifics are 
clearly an important indication of whether a beneficiary's duties are primarily executive or managerial in 
nature, otherwise nlceting the definitions would simply be a matter of reiterating the regulations. Fedirz Bros. 
Co., Ltd v. Sma, 724 F. Supp. 1103 (E.D.N.Y. 1989), aff'cl, 905 F.2d 41 (2d. Cir. 1990). The actual duties 
themselves reveal the true nature of the employment. /d. 
The definitions of executive and managerial capacity have two parts. First, the petitioner must show that the 
beneficiary performs the high-level responsibilities that are specifiedlin the definitions. Second, the petitioner 
must prove that the beneficiary prirna~.r@ performs these specified responsibilities and does not spend a 
majority of his or her time on day-to-day functions. Cha~np~on World, Inc. v. IATS, 940 F.2d 1533 (Table), 
1991 WL 144470 (9th Cir. July 30, 1991). The petitioncr provided a breakdown of the percentage of time the 
beneficiary will devote to her respect duties. fIowever, the categories of tashs are described in too general of 
terms to establish that they are in fact managerial or executive duties. For example, the petitioner indicated 
that the beneficiary will devote 40 percent or her lime to "Operations Management (e.g. creating, revising. 
implementing goals and policies of the company)." Yet, this statement fails to identify the beneficiary's 
specific daily duties. The petitioner stated that the beneficiary will commit 40 percent of her time to 
"Marketing Management (e.g. developing marketing plans, customer service and maintenance)." Yet, as 
discussed above, the petitioner has failed to adequately define tile beneficiary's marketing duties such to show 
that they are managerial or executive in nature. Accordingly, as much as 80 percent of the beneficiary's time 
has not been shown to be devoted to managerial or euecutive tasks See 8 C.F.K. Q: 214.2(1)(3)(ii). 
Counsel states that the cmphasis of this proceeding should be on "whether the beneficiary Iias supervised 
other managers or professionals.'' not whether the petitioner has provided sufficient details of the 
beneficiary's duties. However, as indicated by the director, the beneficiary's duties are at issue in this 
proceeding. The petitioner has the burden of proof to establish that the beneficiary will be employed in a 
primarily managerla1 or executive capacity. 8 C.F.R. 214.2(1)(3)(ii); section 291 of the Act, 8 U.S.C. 
5 1361. Assessing whether the beneficiary supervises managerial or professional subordinates is but one 
factor in determining the beneficiary's employment capacity. Section lOi(a)(44)(A)(ii) of the Act. The 
petitioner must provide sufficient evidence to show that the beneficiary's duties meet each of the criteria 
listed in section 101(a)(44)(A) of the Act. 'To that end, 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 re~terating the regulations. Feclm Bros. Co.. Ltd. v. Suva, 724 F. 
Supp. at 1103. The director appropriately examined the level of detail the petitioner provided in describing 
the beneficiary's duties. 
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Nevertheless, the beneficiary's subordinates are an important consideration in this proceeding. The petitioner 
claims that the beneficiary will oversee subordinates that are managerial and supervisory employees. The 
petitioner explains that the beneficiary will have oversight authority over the employees of its purchased 
subsidiary company. However, whilc the evidence of record supports that the petitioner owns a 70 percent 
interest in its subsidiary, the petitioner has not clearly described the beneficiary's daily interaction with thc 
employees of the subsidiary. The subsidiary has another employee in the position of president, and it is 
presumed that this employee also exercises significant oversight of the subsidiary's employees and operations. 
From the documentation presented, it is unclear whether the beneficiary in fact supervises the employees of 
the subsidiary. Going on record without supporting documentary evidence is not sufficient for purposes of 
meeting the burden of proof in these proceedings. Matter of SofJici, 22 I&N Dec. 158. 165 (Comm. 1998) 
(citing Matter of Treasure Craft of Cuf$urnia. 14 I&N Dec. 190 (Rcg. Comm. 1972)). 
The evidence of record shows that the beneficiary supenrises an assistant manager, a sales manager, a 
purchasing manager, a clerk, and the president of the petitioner's subsidiary. Although the beneficiary is not 
required to supervise personnel, if it is claimed that her duties involve supervising employees, the petitioner 
must establish that the subordinate employees are supervisory, professional. or managerial. See 
5 101(a)(44)(A)(ii) of the Act. 
i 
In evaluating whether the beneficiary manages professional employees. the AAO must evaluate whether the 
subordinate positions require a baccalaureate degree as a minimum for entry into the field of endeavor. 
Section 101(a)(32) of the Act, 8 U.S.C. 4 110l(a)(32), states that "[t]hc termprofession shall include but not 
bc limited to architects, engineers, lawyers. physicians. surgeons, and teachers in elementary or secondary 
schools, colleges, academies, or seminaries." The term "profession" contcrnplates knowledge or learning. not 
merely skill, of an advanced type in a given field gained by a prolonged course of specialized instruction and 
study of at least baccalaureate level, which is a realistic prerequisite to entry into the particular field of 
endeavor.  matter of Sea, 19 I&N Dec. 81 7 (Comm. 1988): Molter of Ling, 13 I&N Dec. 35 (R.C. 1968); 
Matter of Shin, 11 I&N Dec. 686 (D.D. 1966). 
Therefore, the AAO must focus on the level of education required by thc position, rather than the degree held 
by a subordinate employee. The possession of a bachelor's degree by a subordinate employee does not 
automatically lead to the conclusion that an employee is employed in a professional capacity as that term is 
defined above. In the instant case, the petitioner has not provided the level of education obtained by the 
beneficiary's subordinates. Nor has the petitioner shown that at least a bachelor's degree is required for their 
respective duties. Thus, thc petitioner has failed to establish that the beneficiary's subordillates are 
professionals. 
While three of the beneficiary's subordinates have managerial titles, the petitioner has not sufficiently 
described their duties such to show that they manage a clearly defined department or function of the 
petitioner. The fact that they possess managerial titles does not scrve as prima facie evidence that they are 
managers. Again, the actual duties of a position reveal the true nature o'f the employment. Fedin Bros. Co., 
Ltd. v. Snva, 724 F. Supp. at 1103. Nor has the petitioner shown that its managers are supervisors. While the 
petitioner's organizational chart reflects that the assistant manager has authority over the clerk, the description 
of the assistant manager's duties does not describe any supervisory tasks. Thus, the petitioner has failed to 
WAC-04- 1 14-5 16 17 
Page 8 
show that the assistant manager, the sales manager, thc purchasing manager, or the clerk are supervisory, 
professional, or managerial, as contemplated by section 101 (a)(44)(A)(ii) of the Act. 
The president of the petitioner's subsidiary appears to be both a managerial and supervisory employee. Thus, 
the evidence of record shows that the beneficiary has one managerial and supervisory subordinate. However, 
the petitioner states that the beneficiary will devote 20 percent of her time to "Human Resource Management 
(e.g. recruiting and dismissal of employees, training and supervision)." As the beneficiary will directly 
supervise five subordinates, it is clear that a fraction of this portion of her time will be devoted to supervising 
the subsidiary's president. The fact that the beneficiary will oversee the president less than 20 percent of the 
time does not show that she will be engaged with mallagerial or executive duties for a majority of her time. 
As discussed above, the duties comprising the majority of the beneficiary's time have not been shown to be 
managerial or executive in nature. 
Counsel cites two unpublished AAO decisions to stand for the proposition that the sole employee of a 
petitioner can qualifying as a manager or executive. Counsel discusses the facts of a third unpublished AAO 
decision, and states that "[iln light of the reasoning of [the i~npublished matter], . . . [CIS] has abused its 
discretionary authority in denying the petition by assuming that 1) the beneficiary spent most of her time 
performing nonmanagerial duties, 2) the beneficiary did not manage other managers and professionals." 
However, counsel has furnished no evidence to establish that the facts of the instant petition are analogous to 
those in the cited matters. Counsel's conclusory statement that the reasoning in the third cited matter renders 
the director's decision an abuse of discretion is not persuasive. Again, going on record without supporting 
documentary evidence is not sufficient for purposes of meeting the burden of proof in these proceedings. 
Matter of Soffici, 22 I&N Dec. at 165. Furthermore, while 8 C.F.R. 5 103.3(c) provides that AAO precedent 
decisions are binding on all CIS employees in the administration of the Act, unpublished decisions are not 
similarly binding. The cited decisions will not be considered in this proceeding. 
Based on the foregoing, the petitioner has not established that the beneficiary will be employed in a primari'Iy 
managerial or executive capacity, as required by 8 C.F.R. 3 214.2(1)(3)(ii). For this reason, the appeal will be 
dismissed. 
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.