dismissed L-1A Case: Automobile Parts

U.S. Department of Homeland Security 
20 Massachusetts Ave.. NW, Rm. A3042 
Washington, DC 20529 
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$np$e~ c$; cp T' U. S. Citizenship 
and Immigration 
Services 
File: WAC-04-069-51200 Office: CALIFORNIASERVICECENTER Date: 
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 1 10 l(a)(15)(L) 
IN BEHALF 3F PETITJONER: 
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. 
bbert P. Wiemann, Director 
binistrative Appeais Office 
1 I 
b 
WAC-04-069-5 1200 
Page 2 
DISCUSSION: The Director, 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 petitioner filed this nonimmigrant petition seeking to employee the beneficiary as its President as an L- 
1A nonimmigrant intracompany transferee pursuant to section 101(a)(15)(L) of the Immigration and 
Nationality Act (the Act), 8 U.S.C. 5 1101(a)(15)(L), in order to open a new office in the United States. The 
petitioner is a corporation organized in the State of California that is engaged in the sale of automobile parts - 
and other goods. The petitioner claims that it is the cated in Zhuji City, 
China. The beneficiary entered the United States as seeks to change 
his status to L-1 A. 
The director denied the petition concluding that the petitioner did not establish that the beneficiary was 
employed abroad in a primarily managerial 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 director 
failed to request all relevant information prior to denying the petition, and that the director did not adequately 
consider the evidence of record. In support of these assertions, counsel submits a brief and previously 
submitted documents. 
To establish eligibility for the L-1 nonimxigrant visa classification, the petitioner must meet the criteria 
outlined in section 1 Ol(a)(15)(L) of the Act. Specifically, 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 within three years preceding the beneficiary's application for admission into the United 
States. In addition, the beneficiary must seek to enter the United States temporariiy 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 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. 
(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 
WAC-04-069-5 1200 
Page 3 
education, training, and employment qualifies him/her 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. 
(v) If the petition indicates that the beneficiary is coming to the United States as a manager 
or executive to open or to 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 heen 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 (l)(!)(ii)(B) or (C) of this section, supported by information 
regarding: 
(I) The proposed nature of the office describing the scope of the entity, iis 
organizational structure, and its financial goals; 
(2) The size of the United States investment and the financial ability of the 
foreign entity to rernlinerate the beneficiary and to commence doing business in 
the United States; and 
(3) The organizational structure of the foreign entity. 
The issue in the present matter is whether the beneficiary was employed by the foreign entity in a primarily 
managerial or executive capacity. 
Section 10 1 (a)(44)(A) of the Act, 8 U.S.C. 8 1 1 Ol(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 coiltrols 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; 
WAC-04-069-5 1200 
Page 4 
(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)(44)(B) of the Act, 8 U.S.C. 9 1 101 (a)(44)(B), defines 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 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. 
In the initial petition filed on January 12, 2004, or, Form 1-129 the petitioner described the beneficiary's 
foreign job duties as follows: 
Established the International Trade Department, separated fromDomesticDepartment [sic]; 
Established detailed sales plans and sales missisns and goals each month; allocated the sales 
jobs and sales markets among sales clerks in the Department, managed the overall aspects of 
the Department; and coordinated and synchronized the relationship of the sales team in the 
Department 
In ii support letter dated January 8, 2004, the petitioner further described the beneficiary's foreign job duties as 
follows: 
[The beneficiary] is responsible for establishing and managing the International Trade 
Department of the parent company. He governed the day-to-day operation relating to 
personnel and international sales. During his tenure, [the beneficiary] has made significant 
contributions to assure the successful operations and achievements of the International Trade 
Department of the parent company, i.e., established the International Trade Department that 
was separated from the Sales Department; tried to find new customers through joining all 
kinds of auto parts shows; established a good trade relationship with many big customers, 
WAC-04-069-5 1200 
Page 5 
such as Midwest, PA1 and CCCN; established detailed sales plans and sales missions and 
goals each month; allocated the sales job and sales markets among sales clerks in the 
Department, managed the overall aspects of the Department; and coordinated and 
synchronized the relationship of the sales team. 
On January 23, 2004, the director requested additional evidence. In part, the director requested: (1) the 
number of employees the beneficiary manages and their titles; (2) a complete description of the beneficiary's 
foreign job duties; (3) an indication of the decision-making powers the beneficiary has; and (4) an 
organizational chart for the foreign entity showing the beneficiary and all employees, including their names 
and job titles. 
In a response dated February 26, 2004, in part the petitioner submitted: (1) a departmental chart of the 
petitioner's International Trade Department; (2) copies of work identification cards for the beneficiary and his 
subordinates; (3) copies of graduation certificates for the beneficiary's subordinates; (4) the foreign entity's 
organizational chart; and (5) a more detailed foreign job description for the beneficiary as follows: 
Position: Manager of the International Trade Department 
Direct Superior: President of the Group Company (Lixiang Chen) 
Job ~lscri~tion: In charge of all the work in the International Trade Departmen1 
Powc:r: Managing all the work in the International Trade Department 
Responsibility: Responsible for the benefits sf the International Trade Department 
Main Responsibilities and Powers in Details: 
in charge of studying and planning the company's development directions; including 
the company's future industrial rationalization, development of new products and 
fund utilization; 
In charge of drawing up and examining the group company's various rules. 
regulations and internal structure organization; 
In charge of the communications between the group company and various 
governmental departments, strengthening the information exchanges for the 
government's better contribution to the economy; 
In charge of the coordination among the group company and subsidiaries as well as 
various departments; 
In charge of the group company's important decision makings, including personnel 
transfers, annual plan approval and significant accidents handling etc.; 
Organizing the making and supervision of export and import subsidiaries' annual 
marketing plans and expenses, as well as plans such as the internal profit targets; 
Organizing the study of development plans concerning export and import 
sgbsidiaries' marketing and market development; 
Arranging the participation in national and international important auto fairs; 
Organizing the participation in the group company's annual meeting, plan 
coordination meeting and other important meetings; 
WAC-04-069-5 1200 
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10. Attending the company's reception for important guests; 
1 1. Implementing the company's requirements and handling other foreign-related affairs; 
12. Be responsible for the International Trade Department and under the direct 
management and supervision of the company's president. 
The departmental chart of the petitioner's International Trade Department shows that the beneficiary has 
supervisory responsibility over seven employees, including six clerks and one planning clerk. The short job 
descriptions for these subordinates reflects that they are involve in sales tasks. The petitioner submitted 
documentation to show that one of the clerks completed a bachelor's degree in gynecology. 
On March 11, 2004, the director denied the petition. The director determined that the petitioner did not 
establish that the beneficiary was employed abroad in a primarily managerial or executive capacity. 
Specifically, the director stated the following: 
The [beneficiary's job] description . . . and the organizational chart shows that the beneficiary 
is a first-line supervisor overseeing six clerks and one planning clerk. The job description 
indicates that the beneficiary's duties primariiy organized and synchronized a group of sales 
clerks. 
Clearly, some of the beneficiary's duties may have involved decision-making processes, 
which are normally attributed to managerial or executive positions . . . . Since a significant 
part of the beneficiary's duties consist of the day-to-day functions, the duties may not be 
considered primarily executive or managerial in nature. 
On appeal, counsel for the petitioner asserts that the director did not consider the job descriptioi~ provided for 
the beneficiary in response to the request for evidence. Counsel alleges that the director failed to consider 
that the department that the beneficiary manages is important to the foreign entity, accounting for 10 percent 
of its gross sales. Counsel alleges that the director failed to request additional information regarding the 
importance of the beneficiary's department, contrary to the requirements of 8 C.F.R. Fj 103.2(b)(8). Counsel 
asserts that an internal Citizenship and Immigration Services (CIS) memorandum from former-Associate 
Commissioner Fujie 0. Ohata, dated December 20,2002, requires the director to reference all elements of the 
definition of managerial capacity as found in section 101(a)(44)(A) of the act, and that the director erred in 
failing to do so. Counsel further asserts that the petitioner established that the beneficiary silpervises 
professionals. Counsel provides that the beneficiary's subordinates are required to have proficiency in a 
foreign language which further establishes that they are 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 the petitioner's description of the job duties. See 8 C.F.R. 
2142(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. In the instant matter, the petitioner has submitted a total of five separate foreign job descriptions 
for the beneficiary, including Form 1-129, a letter submitted with Form 1-129, an employment certificate from 
the foreign entity, and documents provided in response to the director's request for evidence. As the 
WAC-04-069-5 1200 
Page 7 
petitioner has not indicated that any of these descriptions contain errors, they will be considered together in 
order to determine what are the beneficiary's true duties.' 
The foreign job descriptions reflect that the beneficiary is primarily engaged with sales and marketing 
functions, and acting as a first-line supervisor. For example, in a letter accompanying Form 1-129, the 
petitioner stated that the beneficiary "tried to find new customers through joining all kinds of auto parts shows 
[and] established a good trade relationship with many big customers." These functions appear to be routine, 
non-qualifjing sales and marketing tasks. The letter accompanying Form 1-129 as well as the job description 
provided on the foreign entity's depafimental chart reflect that the beneficiary is primarily engaged with 
supervisory responsibilities over his seven subordinates. His tasks in this regard include "establish[ing] 
detailed sales plans and sales missions and goals each month; allocat[ing] the sales job and sales markets 
among sales clerks in the Department, manag[ing] the overall aspects of the Department; and coordinate[ing] 
and synchroniz[ing] the relationship of the sales team." The job description submitted in response to the 
request for evidence states that the beneficiary is "[iln charge of all the work in the International Trade 
Department." The description then lists 12 duties attributed to the beneficiary, largely centered around 
conducting communications of the department and making general management decisions. It is noted that 
this list of twelve duties does not include supervising the beneficiary's seven subordinates in day-to-day 
activities. Thus, as the beneficiary clearly is charged with supervising the seven clerks, the list of 12 duties is 
understood to be a supplement to other job descriptions contained in the evidence of record, and not a 
complete assessment of the beneficiary's daily duties. In aggregate, the job descriptions show that the 
beneficiary is primarily engaged with managing the seven clerks, performing sales and marketing tasks, and 
the day-to-day operation of the International Trade Department. 
Counsel claims that the beneficiary manages seven subordinates. Although the beneficiary is not required to 
supervise personnel, if it is claimed that his duties involve supervising employees, the petitionzr must 
establish that the subordinate employees are supervisory, professional, or managerial. See 5 101(a)(44)(A)(ii) 
of the Act. 
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 lJ.S.C. $ 1101(a)(32), states that "[tlhe termprofession shall include but nct 
be limited to architects, engineers, lawyers, physicians, surgeons, and teachers in elementary or secondary 
schools, colleges, academies, or seminaries." The term "profession" contemplates knowledge or learning, not 
inerely 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. 817 (Comm. 1988); Matter of Ling, 13 I&N Dec. 35 (R.C. 1968); 
Matter of Shin, 11 I&N Dec. 686 (D.D. 1966). 
I While counsel alleges that the director erroi~eously disregarded the more detailed job description the 
petitioner submitted on appeal, the director's decision gives no clear indication that the he gave more weight 
,to a particular job description in the evidence of record. As all of the petitioner's evidence is available for 
consideration, and the petitioner has not indicated that any job description contains errors, the director 
appropriately cited the job description that appeared on the foreign entity's departmental chart. 
WAC-04-069-5 1200 
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Therefore, the AAO must focus on the level of education required by the 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 provides documentation to show that only one of the 
beneficiary's subordinates has a bachelor's degree. As the degree is in gynecology, it is self-evident that such 
academic training is not required to prepare a clerk to sell automobile parts. Further, the fact that the 
petitioner has hired the clerks without relevant bachelor's degrees reveals that a bachelor's degree is not 
necessary in order to perform their respective duties. Thus, the petitioner has failed to show that the 
beneficiary's subordinates are professionals. Nor has the petitioner shown that any of the employees 
supervise subordinate staff members or manage a clearly defined department or function of the petitioner, 
such that they could be classified as managers or supervisors. Accordingly, the petitioner has not shown that 
the beneficiary's subordinate employees are supervisory, professional, or managerial, as required by section 
10 1 (a)(44)(A)(ii) of the Act. 
Whether the beneficiary is a managerial or executive employee turns on whether the petitioner has sustained 
its burden of proving that his duties are "primarily" managerial or executive. See sections 101(a)(44)(A) and 
(R) of the Act. Here, the petitioner fails to document what proportion of the beneficiary's duties would be 
managerial functions and what proportion would be non-managerial. 'The petitioner lists the beneficiary's 
duties as including both managerial and administrative or operational tasks, but fails to quantifq the time the 
beneficiary spends on them. As noted above, without further explanation the evidence cf record shows that 
the beneficiary will spend the majority of his time acting as a first-line supervisor over subordinates who are 
!lot professionals. A managerial or executive employee must have authority over day-to-day operations 
beyond the level normally vested in a first-line supervisor, unless the supervised employees are professionals. 
See Matter of Church Scientology International, 19 I&N Dec. 593, 604 (Comm. 1988). Thus, the time the 
beneficiary invests in supervising his subordinates does not constitute acting in a managerial or executive 
capacity. 
Counsel alleges that the director failed to consider that the department that the beneficiary manages is 
important to the foreign entity. Yet, it is noted that the beneficiary's actual duties themselves reveal the true 
nature of his employment, irrespective of the prominence of his department. Fedin Bros. Co., Ltd. v. Sava, 
724 F. Supp. 1103, 1108 (E.D.N.Y. 1989), aff'd, 905 F.2d 41 (2d. Cir. 1990). As discussed above, the 
petitioner has failed to show that the beneficiary's duties are primarily managerial or executive in nature. 
Co~nsel alieges that the director failed to request additional informztion regarding the importance of the 
beneficiary's department, contrary to the requirements of 8 C.F.R. 5 103.2(b)(8). The regulation states that 
the petitioner shall submit additional evidence as the director, in his or her discretion, may deem necessary. 
The purpose of the request for evidence is to elicit further information that clarifies whether eligibility for the 
benefit sought has been established, as of the time the petition is filed. See 8 C.F.R. 39 103.2(b)(8) and (12). 
It was within the director's discretion whether to explicitly request additional information about the role of the 
International Trade Department within the foreign entity. If the petitioner had determined that such 
information was vital to a clear understanding of the beneficiary's duties, it should have submitted it in 
response to the director's request for information about the beneficiary's employment capacity. In visa 
petition proceedings, the burden of proving eligibility for the benefit sought remains entirely with the 
WAC-04-069-5 1200 
Page 9 
petitioner. Section 291 of the Act, 8 U.S.C. 5 1361. The director's decision not to solicit more information 
regarding the International Trade Department was not in error. 
Counsel asserts that an internal CIS memorandum from former-Associate Commissione 
dated December 20, 2002, requires the director to reference all elements of the definit 
capacity as found in section 101(a)(44)(A) of the act, and that the director erred in failing to do so. In the 
director's decision, he cited the statutory requirements for L-1 classification as defined in section 
I0 1 (a)(15)!L) of the Act, as well as the regulatory definitions of managerial and executive capacity as found 
in 8 C.F.R. $ 214.2(1)(l)(ii)(B) and (C). It is noted that the definitions provided in 8 C.F.R. "3 
214.2(1)(l)(ii)(B) and (C) mirror the definitions found in sections 101(a)(44)(A) and (B) of the Act. The 
director then explained why the petitioner's evidence failed to satisfy the requirements for L-1A classification. 
Thus, the director appropriately informed the petitioner of the relevant legal provisions under which the 
decision was made, and explained why the petitioner failed to establish eligibility. 
Based on the foregoing, the petitioner has not established that the beneficiary has been employed abroad in a 
primarily managerial or executive capacity, as required by 8 C.F.R. $ 214.2(1)(3)(iv). For this reason, the 
appeal will be dismissed. 
Beyond the decision of the director, there is no evidence of the size of the United States investment or the 
financial ability to remunerate the beneficiary as required by 8 C.F.R. 5 214.2(1)(3)(v)(C)(2). The petitioner 
provided financial statements for the foreign entity, yet all monetary figures were presented in a currency 
other than U.S. dollars. Because the petitioner failed to submit translations of the documents showing values 
in U.S. currency, the AAO cannot determine whether the evidence supports the petitioner's claims. See 
8 C.F.R. § 103.2(b)(3). Accordingly, the financial statements are n~t probative and will not be accorded any 
weight in this proceeding. While the petitioner claims that the foreign entity has $500,000 to invest in the 
petitioner's operations, the petitioner has provided no evidence that iunds have been committed to the 
enterprise. Going on record without supporting documentary evidence is not sufficient for purposes of 
meeting the burden of proof in these proceedings. Matter of Treasure Cra$ of California, 14 I&N Dec. 190 
(Keg. Comm. 1972). For this additional reason, the appeal will be dismissed. 
An apflicatien 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 
2;lpencer Enterprises, Inc. v. Unitedstates, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 2001), afd. 345 F.3d 683 
(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). 
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. The petitioner has not met this burden. 
ORDER: The appeal is dismissed.