dismissed L-1A Case: Automotive

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U.S. Department of Homeland Security 
20 Massachusetts Ave., N.W., Rm. A3042 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
FILE: SRC 03 227 56474 Office: TEXAS SERVICE CENTER Date: AUG 1 1 2003 
IN RE: 
PETITION: Petition for a Nonirnmigrant Worker Pursuant to Section 101(a)(15)(L) of the Immigration 
and Nationality Act, 8 U.S.C. 3 1101(a)(15)(L) 
ON 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. 
M \ Robert P. Wiernann, Director 
\Afministrative Appeals Office 
SRC 03 227 56474 
Page 2 
DISCUSSION: The nonimrnigrant visa petition was denied by the Director, Texas Service Center. The 
' 
matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. 
According to the documentary evidence contained in the record, the petitioner was established in 2002 and 
of automobiles and automobile parts. The petitioner claims to be a 
subsidiary o located in Japan. The petitioner seeks to extend its authorization to 
employ the beneficiary temporarily in the United States as its president for three years, at an annual salary of 
$35,000.00. The beneficiary was initially granted a one-year period of its stay to open a new office in the 
United States and the petitioner now seeks to extend the beneficiary's stay. 
The director determined that the petitioner had not submitted sufficient evidence to demonstrate that the job 
duties performed by the beneficiary have been and would be primarily in a managerial or executive capacity. 
On appeal, counsel disagrees with the director's determination and asserts that the evidence submitted is 
sufficient to demonstrate that the duties performed by the beneficiary have been and will be managerial or 
executive in capacity. 
To establish L-1 eligibility under section lOl(a)(15)(L) of the Immigration and Nationality Act (the Act), 
8 U.S.C. 5 1101(a)(15)(L), the petitioner must demonstrate that the beneficiary, within three years preceding 
the beneficiary's application for admission into the United States, has been employed abroad in a qualifying 
managerial or executive capacity, or in a capacity involving specialized knowledge, for one continuous year 
by a qualifying organization, and seeks to enter the United States temporarily in order to continue to render 
his or her services to the same employer or a subsidiary, or affiliate thereof, in a capacity that is managerial, 
executive, or involves specialized knowledge. 
The regulation at 8 C.F.R. 5 214.2(1)(l)(ii) states, in part: 
lntracompany transferee means an alien who, within three years preceding the time of his or her 
application for admission into the United States, has been employed abroad continuously for one 
year by a fm or corporation or other legal entity or parent, branch, affiliate, or subsidiary 
thereof, and who seeks to enter the United States temporarily in order to render his or her 
services to a branch of the same employer or a parent, affiliate, or subsidiary thereof in a capacity 
that is managerial, executive, or involves specialized knowledge. 
The regulation at 8 C.F.R. 214.2(1)(3) states that an individual petition filed on Form 1-129 shall be 
accompanied by: 
(i) Evidence that the petitioner and the organization which employed or will employ the 
alien are qualifying organizations as defined in paragraph (l)(l)(ii)(G) of this section. 
(ii) Evidence that the alien will be employed in an executive, managerial, or specialized 
knowledge capacity, including a detailed description of the services to be performed. 
(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. 
SRC 03 227 56474 
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(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 himher 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. 9 214.2(1)(14)(ii) states that a visa petition under section 101(a)(15)(L) which involved 
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 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 
(I)( l)(ii)(H); 
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 issue in this proceeding is whether the petitioner has established that the beneficiary's employment with 
the U.S. entity has been and will be primarily managerial or executive in nature. 
Section 101(a)(44)(A) of the Act, 8 U.S.C. 5 1 101(a)(44)(A), provides: 
The term "managerial capacity" means an assignment within an organization in which the 
employee primarily- 
(0 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 
SRC 03 227 56474 
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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. 3 1101(a)(44)(B), provides: 
The term "executive capacity" means an assignment within an organization in which the 
employee primarily- 
(0 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 initially described the beneficiary's duties in the petition as: "[The beneficiary] is president of 
the US corporation, and oversees all operations, including the establishment and expansion of the business, 
inventory, and clientlvendor contract." 
In a letter of support, dated August 15, 2003, the petitioner described the beneficiary's position in the United 
States as: 
[The beneficiary] directs and coordinates business contracts in the entire operation of the 
company's policies and procedures implementing the 
He scouts for additional investment opportunities, 
for use by the parent company in 
Japan. 
The petitioner submitted as evidence copies of the U.S. entity's IRS Form 1 120, U.S. Corporate Income Tax 
Return for 2002, and IRS Form 941, Employer's Quarterly Federal Tax Return for the quarters ending 
December 31, 2002, March 31, 2003, and June 30, 2003. The petitioner also submitted photographs of a 
gasoline stationlconvenience store, which it stated had recently been purchased by the U.S. entity. The 
petitioner stated that the U.S. entity staffed the newly acquired business with a full-time clerk and a general 
manager. 
In response to the director's request for evidence, the petitioner submitted a copy of an organizational chart, 
which depicted the hierarchical structure of the organization. The chart depicted the beneficiary as president 
of the U.S. entity, with a sales and marketing agent and office administrator as his subordinates. The 
petitioner noted on the chart "company outsource[s] all the jobs other than administrative functions such as 
shipping, transportation and maintenance." 
SRC 03 227 56474 
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The director subsequently denied the petition determining that the evidence contained in the record was 
insufficient to establish that the beneficiary had been or would be employed by the U.S. entity primarily in a 
managerial or executive capacity. The director stated that according to the evidence contained in the record, 
the beneficiary supervised a person in charge of sales and marketing and a person in charge of the office 
administration. The director further stated that although the beneficiary evidently exercised discretion over 
the day-to-day activities of the business, he also performed much of the activity. The director also stated that 
the beneficiary did not supervise professional employees. The director noted that the petitioner had failed to 
demonstrate that the beneficiary's primary assignment had been and would be directing the management of 
the organization or primarily directing or supervising a subordinate staff of professional, managerial, or 
supervisory personnel, who could relieve him from performing non-qualifying duties. 
On appeal, counsel disagrees with the director's decision and asserts that the evidence is sufficient to establish 
that the beneficiary has been and will be employed in an executive capacity. Counsel contends that the 
beneficiary is responsible for establishing all policies and procedures for the U.S. entity. Counsel also 
contends that although the beneficiary reports back to the board of director's of the foreign entity, he makes 
all decisions for the U.S. entity. Counsel further contends that the beneficiary hopes to hire additional 
employees in the corning year. Counsel argues that the beneficiary is not called upon to perform the day-to- 
day functions of the organization due to the nature of the entity's importlexport business. 
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. 5 214.2(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. The petitioner must specifically state whether the beneficiary is primarily employed in a 
managerial or executive capacity. A petitioner cannot claim that some of the duties of the position entail 
executive responsibilities, while other duties are managerial. A beneficiary may not claim to be employed as 
a hybrid "executive/manager" and rely on partial sections of the two statutory definitions. 
On review, the petitioner has provided a vague and nonspecific description of the beneficiary's duties that 
fails to demonstrate what the beneficiary does on a day-to-day basis. For example, the petitioner states that the 
beneficiary's duties include establishing policies and procedures and overseeing all operations of the entity. 
The petitioner did not, however, define the organization's policies and procedures, or clarify what actually 
constitutes the business operations of the company. 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). 
Further, rather than providing a specific description of the beneficiary's duties, the petitioner generally 
paraphrased the statutory definition of executive capacity. See section 101(a)(44)(A) of the Act, 
8 U.S.C. 5 1101(a)(44)(A). For instance, the petitioner depicted the beneficiary as directing the entire 
operation of the organization, establishing policies and procedures of the organization, and exercising sole 
discretionary decision making authority. However, conclusory assertions regarding the beneficiary's 
employment capacity are not sufficient to meet the petitioner's burden of proof. 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. 1 103 (E.D.N.Y. 1989), aff d, 905 F.2d 41 (2d. Cir. 1990). 
SRC 03 227 56474 
Page 6 
The petitioner fails to document what proportion of the beneficiary's duties would be executive functions and 
what proportion would be non-executive. The petitioner lists the beneficiary's duties as executive, but it fails 
to quantify the time the beneficiary spends on them. This failure of documentation is important because 
several of the beneficiary's daily tasks, such as researching and marketing the petitioner's product, contract 
negotiations, and other administrative tasks do not fall directly under traditional executive duties as defined in 
the statute. For this reason, the AAO cannot determine whether the beneficiary is primarily performing the 
duties of an executive or function manager. See IKEA US, Inc. v. U.S. Dept. of Justice, 48 F. Supp. 2d 22, 24 
(D.D.C. 1999). 
Although the petitioner infers that the beneficiary is managing a subordinate staff in overseeing the entire 
business operation in the United States, the record does not establish that the subordinate staff is composed of 
supervisory, professional, or managerial employees. See section 101(a)(44)(A)(ii) of the Act. In the instant 
matter, the director noted that although the evidence showed that the beneficiary supervised a sales and 
marketing person and an office administrative person, there had been no evidence submitted to demonstrate 
that he primarily supervised a subordinate staff of professional, supervisory, or managerial personnel 
sufficient to relieve him from performing non-qualifying duties. The petitioner has failed to submit 
sufficient evidence to rebut the director's contention. A first-line supervisor will not be considered to be 
acting in a managerial capacity merely by virtue of his or her supervisory duties unless the employees 
supervised are professional. Section 101(a)(44)(A)(iv) of the Act. Because the beneficiary is primarily 
supervising a staff of non-professional employees, the beneficiary cannot be deemed to be primarily acting in 
a managerial capacity. 
There has been no evidence submitted to demonstrate that the U.S. entity employs any personnel on a regular 
basis to perform non-qualifying tasks sufficient to relieve the beneficiary from performing those duties. The 
petitioner has failed to overcome the objections made by the director. Although counsel claims that the 
beneficiary is not called upon to perform the day-to-day functions of the U.S. entity due to the nature of its 
business, it does not claim to have anyone on its staff to actually perform the day-to-day clerical and other 
administrative functions. The petitioner submitted copies of the U.S. entity's IRS Form 941, Employer's 
Quarterly Tax Return for the quarter ending June 30, 2003, which showed a total of three employees 
employed by the organization during that period. Based upon the salary figures, it appears that the U.S. entity 
employs the beneficiary and the sales and marketing person on a full-time basis and the office administrative 
person on a part-time basis. Thus, either the beneficiary himself is performing the clerical and administrative 
functions or he does not actually manage the clerical and administrative functions as claimed by the 
petitioner. In either case, the AAO is left to question the validity of the petitioner's claim and the remainder 
of the beneficiary's claimed duties. Doubt cast on any aspect of the petitioner's proof may, of course, lead to a 
reevaluation of the reliability and sufficiency of the remaining evidence offered in support of the visa petition. 
Matter of Ho, 19 I&N Dec. 582, 591 (BIA 1988). Further, the petitioner has failed to clarify whether the 
second and third employee listed on its payroll work at the gasoline station and convenience store or IAZ 
Trading (USA), Inc. If the beneficiary is performing the clerical and administrative functions, the AAO notes 
that an employee who primarily performs the tasks necessary to produce a product or to provide services is 
not considered to be employed in a managerial or executive capacity. Matter of Church Scientology 
International, 19 I&N Dec. 593,604 (Comm. 1988). 
In response to the director's request for evidence, the petitioner stated in the organizational chart that the 
company outsourced "all the jobs other than administrative functions such as shipping, transportation and 
maintenance." However, there is nothing in the record to substantiate the petitioner's claim. There has been 
SRC 03 227 56474 
Page 7 
no evidence submitted to demonstrate the beneficiary's authority to manage the contracted employees. 
Additionally, the petitioner has not explained how the services of the contracted employees obviate the need 
for the beneficiary to primarily perform non-qualifying duties. Without documentary evidence to support its 
statements, the petitioner does not meet its burden of proof in these proceedings. Matter of Treasure Craft of 
California, supra. 
The petitioner indicates that it plans to hire additional employees in the future. However, the petitioner must 
establish eligibility at the time of filing the nonirnrnigrant visa petition. A visa petition may not be approved 
at a future date after the petitioner or beneficiary becomes eligible under a new set of facts. Matter of 
Michelin Tire Corp., 17 I&N Dec. 248 (Reg. Comm. 1978). Furthermore, 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 CIS regulations that allows for an extension of this 
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 petitioner has not reached the point that it can employ 
the beneficiary in a predominantly managerial or executive position. 
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 petitioner has not demonstrated 
that the beneficiary has been or will be primarily directing the management of the organization. The record 
indicates that the beneficiary's primary duties have been and will continue to be that of providing the day-to- 
day services of the company rather than managing the operations of the U.S. entity. The petitioner has not 
demonstrated that it has reached or will reach a level of organizational complexity wherein the hiring and 
firing of personnel, discretionary decision making, and setting company goals and policies constitute 
significant components of the duties performed by the beneficiary on a day-to-day basis. Nor does the record 
demonstrate that the beneficiary primarily manages an essential function of the U.S. entity. Further, 
regardless of the beneficiary's position title, the record is not persuasive that the beneficiary has been 
functioning or will function at a senior level within an organizational hierarchy. Accordingly, the appeal will 
be dismissed. 
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.SU~~.~"* 1025, 1043 (E.D. Cal. 2001), aff'd. 345 F.3d 683 
(9' 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 sustained that burden. 
ORDER: The appeal is dismissed.