dismissed L-1A Case: Automotive Design

btifying data delaed 3 
pnvmt clearly url  anted 
hvasion of pasonal privscy 
PUBLIC COPY 
U.S. Department of FIomeland Security 
20 Mass. Ave, N.W. Rm. A3042 
Wash~ngton, DC 20529 
U. S. Citizenship 
and Immigration 
File: WAC 04 133 501 84 Office: CALIFORNIA SERVICE CENTER Date: APR 0 3 2006 
Petition: 
 Petition for a Nonimmigrant Worker Pursuant to Section 101 (a)(15)(L) of the Immigration 
and Nationality Act, 8 U.S.C. $ 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. 
," 
.- , - i - 
~obert'k-~reiii&n, Director 
Administrative Appeals Office 
WAC 04 133 50184 
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 seeks to employ the beneficiary temporarily in the United States as an L-IA 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 U.S. petitioner, an interior automotive design manufacturer organized under 
The director denied the petition concluding that the petitioner did not establish that (1) the beneficiary had 
been employed abroad in a primarily managerial or executive position; and (2) the beneficiary would be 
employed in the United States in a primarily managerial or executive position. 
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 
misinterpreted the evidence that had been presented and contends that the beneficiary will have sufficient 
personnel underneath him in the United States entity to classify him in a managerial capacity. 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 10l(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. 8 214.2(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 (I)(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 04 133 50184 
Page 3 
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. 
Section 101(a)(44)(A) of the Act, 8 U.S.C. 4 1 101(a)(44)(A), defines the term "managerial capacity" as an 
assignment within an organization in which the employee primarily: 
(i) 
 manages the organization, or a department, subdivision, function, or component of 
the organization; 
(ii) 
 supervises and controls the work of other supervisory, professional, or managerial 
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 
(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. 4 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. 
This first issue in this matter is whether the beneficiary had been employed abroad in a primarily managerial 
or executive capacity. 
In the initial documents submitted, the petitioner provided a letter dated February 28, 2004 from its chairman 
of the board which discussed the beneficiary's duties abroad. Specifically, the petitioner stated: 
WAC 04 133 50184 
Page 4 
In 1999, the parent company . . . appointed [the beneficiary] as SalesISupport manager in 
Sweden to head up a team entrusted with creating and developing a new computer-based 
sales support system for the company's products. In this capacity, [the beneficiary] was 
responsible for overseeing and coordinating the efforts of 2 employees to develop such 
program. The fmits of this massive effort was a program termed SESS. The purpose of this 
system was to simplify the company's Distributor's understanding of the complexity of the 
company's [sic] so the Distributors can offer total flexibility to the end user in choosing van 
interior configurations for every profession. 
The petitioner further stated that 
[The beneficiary] has since immersed himself in learning every aspect of the interior van 
design business. Specifically, from 1999 to present, [the beneficiary] has been employed as 
the SalesISupport Manager for [the foreign entity] in Sweden. As previously discussed, in 
this position, [the beneficiary] was responsible for the concept creation of SESS and the 
program's implementation with [the foreign entity's] international distributors. 
On April 15, 2004, the director requested additional evidence establishing that the beneficiary had the 
requisite year of continuous employment abroad with the foreign entity, and further requested additional 
information with regard to the nature of the beneficiary's managerial andlor executive duties while employed 
abroad. Specifically, the director requested payroll records and personnel information, the total number of 
employees employed abroad, a more specific statement with regard to the beneficiary's duties while in that 
position, and a more definitive explanation regarding the reasons for his transfer to the United States. 
In a response received on June 7, 2004, the petitioner submitted a statement addressing the director's request 
for further evidence regarding the beneficiary's position abroad. Specifically, the petitioner stated that the 
beneficiary oversaw two other employees who occupied the positions of sales support assistants. In addition, 
the petitioner provided the following breakdown of the beneficiary's duties: 
The beneficiary's duties 
5% Assist in calculations for quotes to customers within the SESS System 
10% Educate new customers and dealers with the SESS program 
15% Develop and update the SESS program with new products and also update new 
[configurations] for every new vehicle model and make introduced on the 
European/International market 
5% Assist in [shows] nation wide and world wide [sic]. With focus on displaying the SESS 
- system for customers[,] etc. 
WAC 04 133 50184 
Page 5 
15% Develop special "feature" leaflets from the SESS program for [slpecific targeted sales- 
programs together with, for instance, [dlealers, [alutomotive [industry] or vehicle 
manufacturers. 
5% As [manager fulfill] all duties against the two employe[es] working under him. 
5% Together with the rest of the managers in the company make yearly budgets for the 
whole company, and follow up on results during the year. 
10% Constantly working the next generation of SESS. Evaluate all information that [is] 
coming in to the company concerning the SESS program, for instance suggestion about new 
ways of operating the system, demands from end users in changing working methods and 
configuration [of] the SESS program. 
10% Assist the sales team in their sales efforts towards [sic] "Fleet Customers." Creating 
special customized - versions of the SESS program. 
10% Managing the back office and order[]registration for incoming orders. 
On June 10, 2004, the director denied the petition. 
 Specifically, the director noted that the beneficiary's 
primary duties appeared to involve specialized skills and experience in dealing with the SESS system, and did 
not include such qualifying duties as supervising subordinate managers or professionals or managing a 
function of the organization. The director concluded that the record contained insufficient evidence that the 
beneficiary's duties were primarily managerial or executive, and thus the petition was denied. 
On appeal, counsel alleges that the beneficiary oversees a subordinate staff of professionals, thus qualifying 
him as a manager, while simultaneously claiming that the beneficiary manages an essential component of the 
organization abroad. 
The AAO, upon review of the record of proceeding, concurs with the director's finding. Specifically, upon 
review of the beneficiary's stated duties abroad and the minimal information regarding his role in the 
business, it appears that the petitioner has failed to establish that it will employ the beneficiary in a capacity 
that is primarily managerial or executive. 
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. § 214.2(1)(3)(ii). In this case, the petitioner listed each 
of the beneficiary's duties and claimed that the majority of his time abroad was spent developing and 
updating the SESS computer program. This primary task, coupled with the other identified duties such as 
assisting in shows nationwide and making yearly budgets, did little to define the exact nature of the 
beneficiary's obligations to the company. 
On appeal, counsel disparages the director's decision and dismisses it as erroneous, specifically asserting that 
contrary to the director's decision, the beneficiary has in fact been functioning at a senior level within the 
WAC 04 133 50184 
Page 6 
organizational hierarchy. Counsel contends that the two subordinate sales assistants relieve the beneficiary 
from performing non-qualifying duties and that the beneficiary answers only to the president of the 
organization. Furthermore, counsel contends that the petitioner has clearly satisfied its burden of showing 
that the beneficiary's position specifically conforms to the regulatory definitions and thus the beneficiary has 
been working abroad in a qualifying capacity. The AAO disagrees. 
There are two problems with the beneficiary's stated duties. First, the beneficiary's duties abroad include 
numerous non-managerial tasks that are essential to the daily operations of the business. Specifically, the 
assertions that the beneficiary is responsible for assisting with shows, managing the back office and ordering 
registration for incoming orders, and assisting in calculations for quotes to customers within the SESS system 
suggests that he is performing many undertakings that would normally be delegated to sales assistants or other 
non-managerial personnel. In this case, it is clear that the beneficiary's stated duties abroad include many 
practical obligations that would normally be delegated by a manager or supervisor to a subordinate employee. 
The actual duties themselves reveal the true nature of the employment. Fedin Bros. Co., Ltd. v. Suva, 724 F. 
Supp. 1 103, 1 108 (E.D.N.Y. 1989), aff'd, 905 F.2d 41 (2d. Cir. 1990). 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 the alternative, counsel implies on appeal that the beneficiary is a function manager and that as a result, his 
duties in this respect are primarily managerial. 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 10 1 (a)(44)(A)(ii) of the Act, 8 
U.S.C. tj 1101(a)(44)(A)(ii). 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, 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. 8 C.F.R. 5 214.2(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 pe~forms the 
duties related to the function. 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. Boyang, Ltd. v. 
I.N.S., 67 F.3d 305 (Table), 1995 WL 576839 (9th Cir, 1995)(citing Matter of Church Scientology 
International, 19 I&N Dec. at 604. 
In this matter, the petitioner has not provided evidence that the beneficiary manages an essential function. 
Moreover, the petitioner repeatedly alleges that the beneficiary is in fact a qualified manager because he 
oversees a staff of professionals, yet simultaneously claims he is a function manager. This inconsistency is 
neither explained nor supported, as generally a function manager does not supervise or control the work of a 
subordinate staff. Counsel appears to be relying on multiple grounds for eligibility in this matter without 
regard for the discrepancies in the record. 
The mere assertion that the beneficiary will be acting in a primarily managerial or executive capacity by 
virtue of his position title and position at the top of the organizational hierarchy, without more details 
WAC 04 133 50184 
Page 7 
regarding the nature of his interaction with his subordinates and the exact nature of their positions, is 
insufficient to satisfy the petitioner's burden of proof in these proceedings. In this matter, it is clear that the 
beneficiary has intricate and unique knowledge of the petitioner's computer system known as SESS. The 
beneficiary's primary duties abroad revolve around the expansion of this system, and he was selected to go to 
the United States subsidiary to implement the SESS system. In this case, there is insufficient evidence to 
disprove the evidence in the record which indicates that the beneficiary is primarily responsible for the 
implementation, expansion, and maintenance of the SESS system. 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. at 604. 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 Id. This has not been established 
here. 
For this reason, the petitioner may not be approved. 
This second issue in this matter is whether the beneficiary will be employed in the United States in a 
primarily managerial or executive capacity. 
In the initial petition, the petitioner provided a letter dated February 28, 2004 from its chairman of the board 
which discussed the beneficiary's proposed duties in the United States. Specifically, the petitioner stated: 
As sales/support manager, [the beneficiary] will be responsible for overseeing all of [the 
petitioner's] North American Distributor's education, direction, and implementation of SESS. 
The specific duties are as follows: 
Daily review of accounts; 
Handling special circumstances and difficult cases; 
Further concept development and implementation of SESS program to enhance 
company products; 
Responsible for development and direction control of investment of company 
resources into SESS program in North America; 
Offer guidance and instill confidence for all our clients with company products; 
Keep abreast of International and United States marketing to enhance and to improve 
SESS to increase sales; 
Assisting clients['] product satisfaction, and deigning and implementing new 
products; 
Develop ongoing training classes as new concepts are developed and offered through 
the SESS program to the various managers and distributors in North America. 
The position of SalesISupport Manager requires a minimum of three years work related 
experience in the development and management of the SESS program in the context of 
producer-distributor-end user context. The most important qualification of this position is the 
manager's familiarity with the SESS program to ensure effective communication with the 
WAC 04 133 50184 
Page 8 
Distributors working underneath him or her in an effort to increase end user purchases and 
satisfaction. 
The petitioner further stated that 
[The beneficiary] has since immersed himself in learning every aspect of the interior van 
design business. Specifically, from 1999 to present, [the beneficiary] has been employed as 
the SalesISupport Manager for [the foreign entity] in Sweden. As previously discussed, in 
this position, [the beneficiary] was responsible for the concept creation of SESS and the 
program's implementation with [the foreign entity's] international distributors. 
On April 15, 2004, the director requested additional evidence establishing that the beneficiary would be 
employed in the United States in a primarily managerial or executive capacity. Specifically, the director 
requested an organizational chart for the U.S. entity showing the beneficiary's position in the organizational 
hierarchy. In addition, the director requested details about all employees under the beneficiary's supervision, 
including their position titles, duties, and educational levels. Finally, wage verification and employment 
documentation was requested t'o verify the actual staffing levels at the U.S. entity. 
In a response received on June 7, 2004, the petitioner submitted a statement addressing the director's request 
for further evidence regarding the beneficiary's position in the United States. The petitioner stated that the 
reason for the beneficiary's entering the United States was primarily "to implement and effectively utilize the 
SESS program to the U.S. market." More specifically, the petitioner stated: 
As the company in [the] U.S. today [is] increasing [its] numbers [sic] of distributors 
constantly it is of increasing importance for the [company's] well being and development that 
the SESS program is introduced to the distributors and integrated [into] their daily work with 
the company and [its] product[s]. The SESS program has also to be adopted to the [specifics] 
of the North American market to meet the needs of the market. [The beneficiary] will also 
keep a close eye on needed new products for the U.S. market. Designing and implementing 
them. [sic] Last but not least, he will develop ongoing training classes as new concepts are 
developed and offered through the SESS program to the various managers, distributions [sic] 
and [their sales personnel] in North America. 
The petitioner further stated: 
A lower level manager or executive is not selected to this work because of the complexity of 
the SESS program, and an understanding [of] the program is needed, to be able to adopt it to 
the North American market. Remember that the program is a unique program developed for 
[the petitioner] and its product in this specialized market by [the beneficiary]. 
The petitioner also provided a list entitled "Job Duties for the beneficiary on an everyday basis," which stated 
as follows: 
WAC 04 133 50184 
Page 9 
30% Educate new customers and dealers/distributors on the SESS program. 
20% Assist in calculations for quotes to customers within the SESS program[.] 
10% Develop special "feature" leaflets from the SESS program for specific targeted sales 
programs. 
10% Assist the sales representatives in their sales effort towards "Fleet customers" creating 
special customized versions of the SESS program. 
20% Update the SESS program for the North American market. 
10% Managing the back office and order registration for incoming orders and shipping. 
Finally, the petitioner stated that all work for the U.S. subsidiary to date had been done on a consulting basis, 
and therefore there had been no need for its own warehouse facilities or full-time employees. Therefore, the 
petitioner was unable to submit wage and employment verification documentation. The petitioner claimed 
that it would initially have independent sales representatives in its employ and would eventually hire 5-10 
actual employees over the course of twelve to eighteen months. 
On June 10, 2004, the director denied the petition. The director found that the record indicated that the 
beneficiary would be performing most of the tasks necessary to provide the petitioner's services, and thus 
concluded that the petitioner had not established that the beneficiary would assume a position that was 
primarily managerial or executive in the United States. On appeal, counsel for the petitioner alleges that due 
to changes in the petitioner's circumstances since the filing of the petition, the beneficiary's services were now 
essentially based on the rapid growth and unforeseen developments of the petitioner. 
Upon review of counsel's arguments and the evidence contained in the record, the AAO concurs with the 
director's findings. In this matter, the petitioner proposed that the beneficiary enter the United States as an 
intracompany transferee to assume the position of sales support manager. The petitioner, however, failed to 
submit sufficient evidence to establish that the beneficiary would in fact be performing in such a capacity. 
The petitioner and counsel freely admit that at the time of the position's filing, the U.S. entity, though 
incorporated in 1995, had no full-time employees and no legitimate business premises. The petitioner further 
claimed that at the time of filing, the petitioner retained the services of independent contractors acting as sales 
associates, and that in twelve to eighteen months it would hire at least five full-time employees for the 
beneficiary to oversee. 
This scenario is not conducive to supporting the beneficiary in a primarily managerial capacity. 
 The 
petitioner must establish eligibility at the time of filing the nonimmigrant 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 1&N Dec. 248 (Reg. Comm. 1978). Furthermore, although the petitioner 
states that the petitioner had contractual employees in the area of sales, the petitioner has neither presented 
evidence to document the existence of these employees nor identified the services these individuals provide. 
WAC 04 133 50184 
Page 10 
Additionally, the petitioner has not explained how the services of the contracted employees obviate the need 
for the beneficiary to primarily conduct the petitioner's business. Without documentary evidence to support 
its statements, the petitioner does not meet its burden of proof in these proceedings. Matter of Soffici, 22 I&N 
Dec. 158, 165 (Comm. 1998). 
The limited evidence and explanations provided prior to adjudication suggested that the beneficiary, whose 
main goal was to implement the SESS program in the United States entity, would be coming to the U.S. to 
produce the product or services of the U.S. entity. With no documentation corroborating the fact that 
independent sales associates existed, in addition to an admission that the petitioner had no employees or 
permanent warehouse facilities, the director correctly denied the petition. Upon review, the uncontradicted 
evidence contained in the record suggests that the beneficiary would be working independently to establish 
the SESS system in the United States, and would not be primarily engaged in managerial or executive duties. 
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. at 604. 
Furthermore, counsel now asserts on appeal that, due to changes beyond the beneficiary's control 
(specifically, the expansion of the U.S. operation and the terminal illness of a fellow employee), the 
beneficiary's executive services are absolutely essential and claims that the beneficiary would now be 
functioning as the petitioner's vice-president instead of the original position offered. Counsel proceeds on 
appeal to introduce a new position description for the beneficiary's duties as vice-president and relies on this 
new job title as proof that the beneficiary will be functioning in a primarily executive capacity in the United 
States. 
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 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. Matter of Michelin Tire Corp., 17 I&N Dec. at 249. A petitioner may not 
make material changes to a petition in an effort to make a deficient petition conform to CIS requirements. See 
Matter of Izummi, 22 I&N Dec. 169, 176 (Assoc. Comm. 1998). 
In this matter, at the time of filing the U.S. operation had no employees. The petitioner failed to provide 
evidence that the beneficiary would nevertheless function in a primarily managerial or executive capacity. 
Instead of filing a new petition, the petitioner offers on appeal a more senior executive position to the 
beneficiary, and asserts that unforeseen circumstances warrant this change. Once again, insufficient evidence 
has been provided to establish the beneficiary's eligibility for the L classification at the time of filing. For this 
additional reason, the petition may not be approved. 
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. 9 1361. Here, that burden has not been met. Accordingly, the 
director's decision will be affirmed and the petition will be denied. 
ORDER: The appeal is dismissed.