dismissed L-1A Case: Automobile Wholesale

U.S. Department of Homeland Security 
20 Mass. Ave. N.W. Rm. A3042 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
File: WAC 03 012 50057 Office: CALIFORNIA SERVICE CENTER Date: r 3 3 2, C zfic,$ 
Petition: Petition for a Nonimmigrant Worker Pursuant to section IOl(a)(lS)(L) of the Immigration 
and Nationality Act, 8 U.S.C. 5 1101(a)(15)(L) 
IN BEHALF OF PETITIONER: 
INSTRUCTIONS: 
This is the decislon of the Administrative Appeals Office in your case. All documents haye been returned to 
the office that originally decided your case. Any further inquiry must be made to that office. 
Robert P. Wicrnann, Director 
Administrative Appcals Office 
WAC 03 0 12 50057 
Page 2 
DISCUSSION: The Director, California Service Center. denied the petition for a nonimmigrant visa. The 
matter is now before the Administratwe Appeals Office (AAO) on appeal. The AAO will dismiss the appeal. 
The petitioner filed this nonimmigrant petition seeking to extend the employment of its secretary 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. $ 1101(a)(15)(L). The petitioner is a corporation organized in the State of California 
and is engaged in the ,wholesale of automobiles. The petitioner claims that it is the subsidiary of - 
located in Bombay, India. The beneficiary was initially granted a one-year period of stay to open a new 
office in the United States and the petitioner now seeks to extend the beneficiary's stay. 
Thc director denied the petition concluding that the petitioner did not establish that the beneficiary will be 
employed in the Un~ted States m a prlmarlly managerial or executive capacity. 
The petitroner subsequently filed an appeal. ?'he director declined to treat the appeal as a motion and 
forwarded the appeal to the AAO for review. On appeal, counsel for the pebtioner asserts that the petitloner 
submitted extens~ve documentary evidence in response to the director's request for additional evidence that 
clearly established that the benefic~ary was employed m a primarily managerial or executive capaclty as 
defined by the regulations. In support of this assertion, counsel submits a brief and additional evidence. 
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 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 temporarily to continue rend.ering 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 wlll 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) Evldence 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 hirnher to perform the intended 
Page 3 
services in the United States; however, the work in the United States necd not be the 
same work which the alien performed abroad. 
The regulation at 8 C.F.R. tj 214.2(1)(14)(11) also provides that a visa petition, which mvolved the opening of a 
new office, may be extended by filing a new Form 1-129, accompanied by the following: 
(a) Evidence that the United States and foreign entitles are still qualifying organizations 
as defined m paragraph (l)(l)(ii)(G) of this section; 
(b) Evidence that the United States entity has been doing business as defined in 
paragraph (l)(l)(ii)(H) of this section for the prevlous year; 
(c) A statement of the duties performed by the beneficiary for the previous year and the 
dutles the beneficiary will perform under the extended petition; 
(d) A statement describing the staffing of the new operation, mcludmg the number of 
employees and types of positions held accompanied by evldence of wages pa~d to 
employees when the beneficiary will be employed in a managerial or executive 
capacity; and 
(e) Evidence of the financial status of the United States operation. 
The first issue in the present matter 1s whether the beneficiary will be employed by the United States entity in 
a primar~ly managerial or executive capacity. 
Section 101(a)(44)(A) of the Act, 8 U.S.C. 4 1101(a)(44)(A), defines the term "managerial capacity" as an 
assignment within an organization in which the employee primarily: 
(i) manages the organization, or a department, subdivision, function, or component of 
the organization; 
(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 organtzation; 
(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 
promot~on and leave authorization), or ~f no other employee is directly supemsed, 
functions at a senlor level with~n the organizational hierarchy or with rcspect to the 
funct~on managed; and 
(IV) exercises discretion over the day to day operations of the activity or functlon for 
which the employee has authority. A first llne supervisor is not considered to be 
,WAC 03 012 50057 
Page 4 
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. 3 1101(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, the petitioner described the bgmeficiary's job duties as follows: 
[The beneficiary] came to the Unlted States to direct, manage, and develop the petlt~oner's 
business in the US market. Specifically, [the beneficiary] explored the Indian company's 
business activities to expand their services to the wholesale of tlmber and ply wood [SIC] m 
the United States m order to expand the scope of the& busmess on thls slde of the Pacific 
Rlm. 
In the business plan accompanying the initial petition, the beneficiary's responslbilitles were further defined 
as follows: 
1. Setup the cntire business in the United States of America 
2. Hlre well trained persons to run business 
3. Complete all legal formalities whlch ~nclude the followmg: 
a. Setup Corporation in Califomla 
b. Sign the lease of space or rent a space 
c. File list of Directors['] name[s] w~th the Secretary of State 
d. Malntain Share holders [sic] register and file with the Secretary of State 
e. Obtaln legal whole sale used car license from Department of Motor Vehicle 
f. Open the bank account 
g. Arrangement of funds through banking channel 
Finally, as Financial Officer and Secretary, the petitioner states that: 
[?he beneficiary] will maintain the company records and be in direct Communication ~11th 
the accountant and other advisors. He will also be in charge of the computer system and 
WAC 03 01 2 50057 
Page 5 
perform all of [the] desktop publishing for the Company. He will assist as nceded with sales, 
shipping and receiving and customer service related issues. In addition to his regular duties, 
[the beneficiary] will be doing Internet marketing from his office. We anticipate that 20 
hours every week will be dedicated to this marketing. The revenue that will be generated by 
this is reflected in the Sales Forecast. 
On October 25, 2002, the director requested additional evidence establishing that the beneficiary was 
qualified for the benefit sought. Specifically, the director requested the following documentation: 
(1) Copies of the U.S. entity's stock ledger; 
(2) A copy of the U.S. organizational chart describing its managerial hierarchy and staffing 
levels; 
0 
(3) Copies of the U.S. entity's forms DE-6, State Quarterly Wage Reports, for the preceding four 
quarters; 
(4) Copies of the U.S. entity's forms 941. Federal Quarterly Wage Reports, for the preceding 
four quarters; 
(5) Copies of the U.S. entity's payroll summary, including forms W-2 and W-3, for the preceding 
year; and 
(6) A list of all H-1B and L-1 petitions filed by the petitioner in the preceding twelve 
months. 
On December 2, 2002, the petitioner, through counsel, submitted a detailed response accompanied by the 
documentation requested by the director. Counsel's response, which provided all specifically requested 
documentation, also provided a detailed description of the positions filled by the beneficiary's alleged 
subordinates. 
On December 13, 2002, the director denied the petition. The director determined that the evidence in the 
record did not establish, that the beneficiary would be relieved of the everyday tasks of the organization by the 
two subordinate employees.' In addition, the director determined that the two subordinate employees, 
namely, a detailing manager and a service manager, were not professional employees as provided by the 
regulations. 
On appeal, counsel for the petitioner asserts that the director's decision was erroneous and that the beneficiary 
was in fact acting in a primarily executive capacity. Counsel for the petitioner also alleges for the first time 
1 The AAO notes that the director did not mention the sales and wholesales commissions person, identified as 
an independent contractor, in his decision. The record does not contain evidence that the independent 
coktractor was in fact compensated by the U.S. entity. Although requested by the director, no explanation or 
evidence was provided on how or if this contractor was paid by the petitioner, even though payroll records 
demonstrated the payment of wages to the other two employees named on the organizational chart provided. 
For this reason, the AAO concurs with the director's decision to consider only those employees for which 
evidence of actual employment existed was submitted. 
WAC 03 012 50057 
Page 6 
that in addition to supervising personnel, the beneficiary also served as a function manager in charge of the 
operations of the company. 
The AAO, upon review of the record of proceeding, concurs with the director's finding that thc beneficiary 
was not employed in a primarily managerial or executive capacity. Specifically, upon review of the 
beneficiary's stated duties, the duties of his subordinate employees, and the payroll records which illustrate 
the nature of the company's staffing, it appears that the beneficiary is merely a first-line supervisor. The 
beneficiary does not appear to be supervising other professional or supervisory employees. 
Although the beneficiary 1s not required to supervise personnel, if it is claimed that h~s duties involve 
supervising employees, the pctitloner must establish that the subordinate employees are supervisory. 
professional, or managerial. See section 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 minrmum for entry into the field of endeavor. 
Section 101(a)(32) of the Act, 8 U.S.C. 3 1101(a)(32), states that "[tlhe termprofession shall include but not 
be limited to architects, engineers, lawyers, phys~cians, surgeons, and teachers In elementary or secondary 
schools, colleges, academies, or semnaries." The term "profession" contemplates knowledge or learning, not 
merely slull, of an advanced type in a glven field gained by a prolongcd course of specialized instruction and 
study of at least baccalaureate level, whlch is a realistic prerequisite to entry into the part~cular 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 Shiiz, 11 I&N Dec. 686 (D.D. 1966). 
Therefore, the AAO must focus on the level of education requlred 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 has not, m fact, establ~shed that an advanced degree is 
actually necessary to perform the duties of the two other employees listed on the organizational chart. It is 
presumed, however, that an advanced degree is not required for these positions m light of the m~n~mal salary 
paid to these employees. In add~tion, the stated duties of these employees, which included washing and 
detalllng automobiles and p~clung up automobiles tioin auction sites, does not support a finding that thcse 
, employees are professional. Finally, there IS no evidence that these employees will be supemslng 
subord~nate personnel to perform lower level tasks. Since the record does not establish that the beneficiary 
wlll be supervising professional, supervisory, or rnanagerlal employees, the beneficlay has not met the 
definition of manager under the regulatory definihons. 
Cdunsel argues for the first time on appeal that in addition to supervising personnel, the.beneficiar= is duly 
qualified as a 'function manager. The term "function manager" applies generally when a beneficiary does not 
supervise or c.ontro1 the work of a subordinate staff but instead is primarily responsible for managing an 
"essential function" within the, organization. See section 101(a)(44)(A)(ii) of the Act, 8 U.S.C. 
5 110l(a)(44)(~)(ii).' As previously stated, counsel did not previously introduce a claim or evidence in 
support of this assertion. On appeal, a petitioner cannot offer a new position to the beneficiary, or materially 
change a position's title, its level of authority within the organizational hierarchy, or the associated job 
, . 
WAC 03 012 50057 
Page 7 
responsibilities. The petitioner must establish that the position offered to the beneficiary when the petition 
was filed merits classification as a managerial or executive position. Mutter of Michelin Tire cob., 17 I&N 
Dec. 248, 249 (Reg. Comm. 1978). A petitioner may not make material changes to a petition in & effort to 
make a deficient petition conform to Citizenship and Immigration Services (CIS) reqdirements. See Matter of 
Izurizmi, 22 I&N Dec. '169, 176 (Assoc. Comm. 1998). 
Counsel further refers to an unpubllshed decision involving an employee of the Insh Dairy Roard. In the 
unpubllshed decision, the AAO determined that the beneficiary met the requirements of servlng in a 
managenal and executive capacity for L-1 classificat~on even though he was the sole employee. Counsel has 
furn~shed no evldence to establrsh that the facts of the Instant petition are analogous to those in the Trlsh Dairy 
Roard matter. Golng on record without supporting documentary evidence is not sufficient for purposes of 
meet~ng the burden of proof in these proceedings. See Matter of Treasure Craft of Callforrliu, 14 I&N Dec. 
190 (Reg. Comm. 1972). Furthermore, while 8 C.F.R. 9 103.3(c) prov~des that AAO precedent decisions are 
b~nding on all CIS employee\s In the adm~nistration of the Act, unpubllshed decisions are not slmllarly 
binding.' 
On review, the record as presently constituted is not persuasive in demonstrating that the beneficiary has been 
or will be employed in a, primarily' managerial or executive capacity. The regulation at 8 C.F.R. 5 
214.2(1)(3)(v)(C) allows the intended United States operation one year within the date of approval of the 
petition to support an executive or managerial position. There is no. provision in the regulations that allows 
for an extension of tbs one-year period. If the business is not sufficiently operational after one year, the 
petitioner is ineligible by regulation for an extension. In the instant matter, the'pctitioner has.not reached the 
, . 
point that it can employ the beneficiary in a predominantly managerial or executive position, as required by 8 
C.F.R. 214.2(1)(3). For this reason, the petition may not be approved. 
Beyond the decision of the director, a related issue is whether the petitioner has established that it has secured 
sufficient physical premises to house the new office. The petitioner has submitted a copy of its Icase, which 
indicates that the size of the premises is a mere 150 square feet. There is no indication of an extenor lot or 
storage area in which the automobiles may be stored andlor displayed. Based on the insufficiency of the 
information furnished, it cannot be concluded that the petitioner has secured sufficient space to house the new 
enterprise. For this additional reason, the petiaon may not be approved. 
In visa petition proceedmgs, the burden of proving ellgbility for the benefit sought remalns entlrely wlth the 
petitioner. Sectlon 291 of the Act, 8 U.S.C. 1361. Here, that burden has not been met. Accordmgly, the 
d~rector's decision will be affirmed and the petition will be denled. 
ORDER: The appeal is dismissed. 
' On appeal, counsel cites additional unpublished decisions from the AAO. In accordance with 8 C.F.R. 5 
103.3(c), these examples are not binding on the AAO in rendenng a decision in this matter.