dismissed L-1A Case: Automotive

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U.S. Department of Homeland Security 
20 Massachusetts Ave., N.W., Rm. 3000 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
Services 
File: EAC 07 099 52999 Office: VERMONT SERVICE CENTER Date: 0 3 2008 
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 10 1 (a)(15)(L) 
IN 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. 
Robert P. Wiemann, Chief 
Administrative Appeals Office 
EAC 07 099 52999 
Page 2 
DISCUSSION: The Director, Vermont Service Center, denied the petition. for a nonimrnigrant visa. The 
matter is now before the Administrative Appeals Office (AAO) on appeal. The AAO will dismiss the appeal. 
The petitioner filed this nonimmigrant visa petition seeking to extend the employment of the beneficiary as an 
L- 1 A nonimrnigrant intracompany transferee pursuant to section 10 1 (a)(15)(L) of the Immigration and 
Nationality Act (the Act), 8 U.S.C. 5 1101(a)(15)(L). The petitioner is a corporation organized under the laws 
of the State of California and is allegedly in the automotive business."' The beneficiary was 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. 
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 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, the petitioner asserts that the director erred and that 
the beneficiary will perform primarily qualifying duties. 
To establish eligibility for the L-1 nonimrnigrant 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 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 hll-time employment 
abroad with a qualifying organization within the three years preceding the filing of 
the petition. 
'According to California state corporate records, the petitioner's corporate status in California has been 
"suspended." Therefore, since the corporation has lost all rights and powers to transact business, the company 
can no longer be considered a legal entity in the United States. Accordingly, if this appeal were not being 
dismissed for the reasons set forth herein, this would call into question the petitioner's continued eligibility for 
the benefit sought. 
EAC 07 099 52999 
Page 3 
(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 himlher 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 regulation at 8 C.F.R. 5 214.2(1)(14)(ii) also provides that a visa petition, which involved the opening of a 
new office, may be extended by filing a new Form I- 129, accompanied by the following: 
(A) 
 Evidence that the United States and foreign entities are still qualifying 
organizations as defined in 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 previous year; 
(C) 
 A statement of the duties performed by the beneficiary for the previous year 
and the duties the beneficiary will perform under the extended petition; 
(D) 
 A statement describing the staffing of the new operation, including the 
number of employees and types of positions held accompanied by evidence 
of wages paid 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 primary issue in the present matter is whether the beneficiary will be employed by the United States 
entity in a primarily managerial or executive capacity. 
Section 101(a)(44)(A) of the Act, 8 U.S.C. $ 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; 
(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 
EAC 07 099 52999 
Page 4 
(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 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. 
The petitioner does not clarify in the initial petition whether the beneficiary will primarily perform managerial 
duties under section 101 (a)(44)(A) of the Act, or primarily executive duties under section lOl(a)(44)(B) of 
the Act. A petitioner may not claim that a beneficiary will be employed as a hybrid "executive/manager" and 
rely on partial sections of the two statutory definitions. Given the lack of clarity, the AAO will assume that 
the petitioner is asserting that the beneficiary will be employed in either a managerial or an executive capacity 
and will consider both classifications. 
The petitioner describes the beneficiary's duties as "general manager" of the alleged five-employee enterprise 
in a letter dated February 22, 2007. As this letter is in the record, the job description will not be repeated in 
its entirety here. The petitioner describes the majority of the beneficiary's duties as follows: 
[The beneficiary] utilizes the majority of his time planning and developing the policies and 
objectives for [the petitioner]. [The beneficiary] is [the] only person in the U.S. who sets the 
tone for the company and oversees the day-to-day operations of the company in the U.S. His 
management duties and responsibilities include making decisions and implementing policies 
regarding [the petitioner's] marketing policies and programs in the Japanese market. In this 
capacity, he is charged with developing and implementing the company's intermediate and 
long-term plans and objectives for the company's business expansion projects in Japan. In 
essence, [the beneficiary] exercises discretion over day-to-day activities of the company, 
which encompasses the direct responsibility of developing and managing the Subsidiary, 
including directing activities, gathering and analyzing market information regarding current 
automotive trend and market in the United States. The [beneficiary] is also in charge of 
pricing of the automotive products to be shpped to the [foreign employer] and other 
automotive distributors/companies in Japan. He determines and sets the appropriate prices 
for the products provided by the company. h establishing the prices, [the beneficiary] takes 
into account the minimum profit margin set by the company; current U.S. dollar1Japanese yen 
EAC 07 099 52999 
Page 5 
exchange rate; and the current demand in Japan for the particular makes and model of U.S. 
automobile and automotive products. In addition, [the beneficiary] is responsible for 
arranging the transfer of fund[s] from the [foreign employer] to the [petitioner] for the 
purchase of the automotive products. 
The petitioner also described the five employees allegedly under the beneficiary's supervision in the United 
States in the February 22, 2007 letter. The petitioner claims that the beneficiary will supervise a sales 
manager, an account executivelsecretary, two saleslpurchase executives, and an automotive 
consultantlmechanic. As the job descriptions for these subordinate workers are in the record, the descriptions 
will not be repeated here. Generally, the petitioner describes the five subordinate workers as performing the 
tasks necessary to produce a product or to provide a service. 
On March 22, 2007, the director requested additional evidence. The director requested, inter aha, a "detailed 
explanation" addressing how the duties of the beneficiary's subordinate workers will be supervisory, 
managerial, or professional in nature. The director also requested copies of the workers' educational 
credentials. 
In response, counsel to the petitioner submitted a letter dated May 25, 2007 in which he repeats the job 
descriptions for the subordinate workers submitted with the initial petition. Counsel also claims that the 
petitioner will employ additional workers in the future. 
On October 29, 2007, the director denied the petition. The director concluded that the petitioner failed to 
establish that the beneficiary will be employed primarily in a managerial or executive capacity. 
On appeal, counsel asserts that the beneficiary will primarily perform qualifying duties in the United States, 
repeating the job descriptions previously provided. 
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. 9 214.2(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. A petitioner cannot claim that some of the duties of the 
position entail executive responsibilities, while other duties are managerial. Again, a petitioner may not claim 
that a beneficiary will be employed as a hybrid "executivelmanager" and rely on partial sections of the two 
statutory definitions. 
Title 8 C.F.R. 4 214.2(1)(3)(v)(C) allows the "new office" operation one year within the date of approval of 
the petition to support an executive or managerial position. There is no provision in Citizenship and 
Immigration Services (CIS) regulations that allows for an extension of this one-year period. If the beneficiary 
is not performing qualifying duties within one year of petition approval, the petitioner is ineligible by 
regulation for an extension. In the instant matter, the petitioner has not established that the United States 
operation has reached the point that it can employ the beneficiary in a predominantly managerial or executive 
position. 
EAC 07 099 52999 
Page 6 
As a threshold issue, it is noted that employees hired after the filing of the initial petition may not be 
considered in determining whether the petitioner has established that the beneficiary will be employed in a 
primarily managerial or executive capacity in the United States. A visa petition may not be approved based 
on speculation of future eligibility or after the petitioner or beneficiary becomes eligible under a new set of 
facts. See Matter of Michelin Tire Corp., 17 I&N Dec. 248 (Reg. Comm. 1978); Matter of Katigbak, 14 I&N 
Dec. 45, 49 (Comrn. 1971). Accordingly, counsel's claim that the petitioner will employ additional workers 
in the future is not relevant and will not be considered. Furthermore, 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). 
In this matter, the petitioner's description of the beneficiary's job duties fails to establish that the beneficiary 
will act in a "managerial" or "executive" capacity. In support of the petition, the petitioner has submitted a 
vague and non-specific job description which fails to sufficiently describe what the beneficiary will do on a 
day-to-day basis. For example, the petitioner states that the beneficiary will devote most of his time to 
"planning and developing the policies and objectives for [the petitioner]" and that he will oversee day-to-day 
operations of the five-employee automotive operation. He will also gather and analyze marketing information 
and sets prices. However, the petitioner does not specifically describe these "policies and objectives" or 
explain what, exactly, the beneficiary will do to oversee the petitioner's operations other than to act as a first- 
line supervisor of five subordinate workers. Furthermore, the petitioner has not established that his duties 
pertaining to market research, pricing, purchasing, marketing, and financial affairs are qualifying duties. The 
fact that the petitioner has given the beneficiary a managerial or executive title and has prepared a vague job 
description which includes inflated job duties does not establish that the beneficiary will actually perform 
managerial or executive duties. 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 reiterating the regulations. Fedin Bros. Co., Ltd. v. Suva, 724 F. Supp. 1103 (E.D.N.Y. 1989), afd, 905 
F.2d 41 (2d. Cir. 1990). Going on record without supporting documentary evidence is not sufficient for 
purposes of meeting the burden of proof in these proceedings. Matter of Treasure Craft of California, 14 
I&N Dec. 190 (Reg. Comm. 1972). 
Consequently, the record is not persuasive in establishing that the beneficiary will primarily perform 
qualifying duties in his operation of the business. As noted above, the petitioner asserts that the beneficiary 
will "managei' the petitioner's business operations through five subordinate workers. However, the record 
does not establish that the beneficiary will be relieved of the need to perform many of the other non- 
qualifying tasks inherent to his ascribed duties by a subordinate staff. Accordingly, it appears more likely 
than not that the beneficiary will primarily perform non-qualifying first-line supervisory, administrative, or 
operational tasks in his administration of the business. 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 
International, 19 I&N Dec. 593, 604 (Comm. 1988). A managerial 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. 101(a)(44)(A)(iv) of the Act; see also Matter of Church Scientology International, 19 I&N 
Dec. at 604. 
EAC 07 099 52999 
Page 7 
The petitioner has also failed to establish that the beneficiary will supervise and control the work of other 
supervisory, managerial, or professional employees, or will manage an essential function of the organization. 
As asserted in the record, the beneficiary will directly supervise a sales manager, an account 
executive/secretary, two sales/purchase executives, and an automotive consultant/mechanic. However, it has 
not been established that any of these workers is truly a supervisory or managerial worker given that none of 
them supervises a subordinate staff. Furthermore, the job descriptions provided for these workers indicate 
that each of them performs the tasks necessary to the provision of a service or the production of a product. 
Finally, as the petitioner failed to establish the skills and education required to perform the duties of the 
subordinate positions, even though this evidence was also requested by the director, the petitioner has not 
established that the beneficiary will manage professional employees. Failure to submit requested evidence 
that precludes a material line of inquiry shall be grounds for denying the petition. 8 C.F.R. 5 103.2(b)(14).* 
Accordingly, the petitioner has not established that the beneficiary will be employed primarily in a managerial 
capacity." 
2 
In evaluating whether the beneficiary will manage 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. § 1 101(a)(32), states that "[tlhe term profession shall include but not 
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 
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. 8 17 (Cornrn. 1988); Matter of Ling, 13 I&N Dec. 35 (R.C. 1968); 
Matter of Shin, 11 I&N Dec. 686 (D.D. 1966). 
3 
While the petitioner has not argued that the beneficiary will manage an essential function of the organization, 
the record nevertheless would not support this position even if taken. The term "function manager" applies 
generally when a beneficiary does not supervise or control 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. The term "essential function" is not defined by statute or regulation. 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 in managing the essential function, i.e., identify the 
function with specificity, articulate the essential nature of the function, and establish the proportion of the 
beneficiary's daily duties attributed to managing the essential function. See 8 C.F.R. $ 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 tasks related to the function. In this matter, the petitioner has 
not provided evidence that the beneficiary will manage an essential function. The petitioner's broad job 
description fails to document that the beneficiary's duties will be primarily managerial. Also, as explained 
above, the record indicates that the beneficiary will primarily be a first-line supervisor of non-professional 
employees or will perform non-qualifying tasks. Absent a clear and credible breakdown of the time spent by 
the beneficiary performing his duties, the AAO cannot determine what proportion of his duties will be 
managerial, nor can it deduce whether the beneficiary will primarily perform the duties of a function manager. 
See IKEA US, Inc. v. U.S. Dept. of Justice, 48 F. Supp. 2d 22,24 (D.D.C. 1999). 
EAC 07 099 52999 
Page 8 
Similarly, the petitioner has failed to establish that the beneficiary will act in an "executive" capacity. 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 101(a)(44)(B) of the Act. 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 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-day 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 beneficiary must also exercise "wide latitude in discretionary decision making" 
and receive only "general supervision or direction from higher level executives, the board of directors, or 
stockholders of the organization." Id. For the same reasons indicated above, the petitioner has failed to 
establish that the beneficiary will act primarily in an executive capacity. As explained above, it appears 
instead that the beneficiary will be primarily employed as a first-line supervisor and will perform the tasks 
necessary to produce a product or to provide a service. Therefore, the petitioner has not established that the 
beneficiary will be employed primarily in an executive capacity. 
In reviewing the relevance of the number of employees a petitioner has, federal courts have generally agreed 
that CIS "may properly consider an organization's small size as one factor in assessing whether its operations 
are substantial enough to support a manager." Family, Inc. v. US. Citizenship and Immigration Services, 469 
F.3d 1313, 1316 (9th Cir. 2006) (citing with approval Republic of Transkei v. INS, 923 F.2d 175, 178 (D.C. 
Cir. 1991)); Fedin Bros. Co. v. Sava, 905 F.2d 41, 42 (2d Cir. 1990) (per curiam); Q Data Consulting, Inc. v. 
INS, 293 F. Supp. 2d 25, 29 (D.D.C. 2003). Furthermore, 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). 
Accordingly, the petitioner has failed to establish that the beneficiary will primarily perform managerial or 
executive duties, and the petition may not be approved for that reason. 
Beyond the decision of the director, the petitioner failed to establish that the beneficiary was employed abroad 
in a position that was managerial or executive in nature. 8 C.F.R. §§ 214.2(1)(3)(iii) and (iv). 
The petitioner described the beneficiary's job duties abroad in a letter dated February 22, 2007. As this job 
description is in the record, it will not be repeated verbatim here. Generally, the petitioner claims that the 
beneficiary devoted most of his time to establishing sales territories, quotas, and goals and to advising 
distributors concerning sales and advertising techniques. 
Upon review, the record is not persuasive in establishing that the beneficiary was employed abroad in a 
primarily managerial or executive capacity. Similar to the United States position, it appears that the 
beneficiary primarily performed non-qualifying tasks abroad. Furthermore, to the extent the beneficiary was 
relieved of the need to perform some non-qualifying duties, it appears that the beneficiary served as a fnst- 
EAC 07 099 52999 
Page 9 
line supervisor of non-professional employees, which is also a non-qualifying managerial duty. See sections 
I01 (a)(44)(A) of the Act; see also Matter of Church Scientology International, 19 I&N Dec. at 604. 
Accordingly, the petitioner has not established that the beneficiary was employed abroad in a primarily 
managerial or executive capacity, and the petition may not be approved for this additional reason. 
The previous approval of L-1A petitions does not preclude CIS from denying an extension based on a 
reassessment of the petitioner's qualifications. Texas AM Univ. v. Upchurch, 99 Fed. Appx. 556, 2004 WL 
1240482 (5th Cir. 2004). Despite any number of previously approved petitions, CIS does not have any 
authority to confer an immigration benefit when the petitioner fails to meet its burden of proof in a subsequent 
petition. See section 291 of the Act, 8 U.S.C. fj 1361. 
An application 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 
Spencer Enterprises, Inc. v. United States, 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). 
The petition will be denied for the above stated reasons, with each considered as an independent and 
alternative basis for denial. When the AAO denies a petition on multiple alternative grounds, a plaintiff can 
succeed on a challenge only if it is shown that the AAO abused its discretion with respect to all of the AAO's 
enumerated grounds. See Spencer Enterprises, Inc., 229 F. Supp. 2d at 1043. 
In visa petition proceedings, the burden of proving eligibility for the benefit sought remains entirely with the 
petitioner. Section 291 of the Act. Here, that burden has not been met. Accordingly, the appeal will be 
dismissed. 
ORDER: The appeal is dismissed.