dismissed L-1A Case: Automotive Parts

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PUBLIC COPY 
U.S. Department of Homeland Security 
20 Massachusetts Ave., N.W., Rm. 3000 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
Services 
File: WAC 07 193 55228 Office: CALIFORNIA SERVICE CENTER Date: AU6 8 1 2008 
IN RE: Petitioner: 
Beneficiary: 
Petition: 
 Petition for a Nonimmigrant Worker Pursuant to Section 10 1 (a)( 15)(L) of the Immigration 
and Nationality Act, 8 U.S.C. 5 1101(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 
WAC 07 193 55228 
Page 2 
DISCUSSION: The Director, California Service Center, denied the petition for a nonimmigrant visa. The 
matter is now before the Administrative Appeals Office (AAO) on appeal. The AAO will dismiss the appeal. 
The petitioner filed this nonimmigrant visa petition seeking to extend the employment of the beneficiary as an 
L- 1A nonimmigrant 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 Kansas and is allegedly an "after market auto parts manufacturer and wholesaler." 
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, counsel to the petitioner asserts that the director 
erred and that the beneficiary's duties are primarily those of a manager and an executive. 
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 rendering his 
or her services to the same employer or a subsidiary or affiliate thereof in a managerial, executive, or 
specialized knowledge capacity. 
The regulation at 8 C.F.R. 5 214.2(1)(3) states that an individual petition filed on Form 1-129 shall be 
accompanied by: 
(i) 
 Evidence that the petitioner and the organization which employed or will employ the 
alien are qualifying organizations as defined in paragraph (l)(l)(ii)(G) of this section. 
(ii) 
 Evidence that the alien will be employed in an executive, managerial, or specialized 
knowledge capacity, including a detailed description of the services to be performed. 
(iii) 
 Evidence that the alien has at least one continuous year of full-time employment 
abroad with a qualifying organization within the three years preceding the filing of 
the petition. 
(iv) 
 Evidence that the alien's prior year of employment abroad was in a position that was 
managerial, executive or involved specialized knowledge and that the alien's prior 
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 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. 
WAC 07 193 55228 
Page 3 
Section 10 1 (a)(44)(A) of the Act, 8 U.S.C. $ 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. €j 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 clarifjr in the initial petition whether the beneficiary will primarily perform managerial 
duties under section 10 1 (a)(44)(A) of the Act, or primarily executive duties under section 10 1 (a)(44)(B) of 
the Act. 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. If the petitioner is indeed representing the beneficiary 
as both an executive and a manager, it must establish that the beneficiary meets each of the four criteria set 
forth in the statutory definition for executive and the statutory definition for manager. 
The petitioner describes the beneficiary's duties in a letter dated May 1,2007 as follows: 
As the President and Chief Executive Officer of the Petitioner and as an executive officer of 
WAC 07 193 55228 
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the US Parent, [the beneficiary's] employment role in the United States comprises 
considerable executive function. [The beneficiary] devotes approximately 25% of his time, 
or some 20 hours a week, to product distribution and new strategic development. The 
remainder of his time, up to 40 hours a week, is spent in a managerial and executive function, 
overseeing the continued growth and development of the Petitioner, its staff (in addition to 
the employees of the Petitioner), developing infi-astructure and marketing of the Petitioner as 
an effective business in the United States. 
As an engineering technician in his own right, the Beneficiary also devotes time to the 
development and testing of additional products, in response to the demand for these products 
as automobile after-market parts for [automobiles]. 
The petitioner also claims that the beneficiary's subordinate staff relieves him of the need to perform any 
"operational or non-executive functions" and that he primarily "coordinate[es] the work and efforts of its 
employees so that each of them operates in a manner that is consistent with the others." The beneficiary is 
allegedly "concerned with setting the overall strategies for the [pletitioner" by solidifying the Petitioner's 
presence in the United States through marketing, by maintaining its products' high quality, and by expanding 
product lines. The petitioner also claims that the beneficiary is "the face of the [pletitioner" and that he 
appears at automobile shows and functions. 
The petitioner also describes its staffing in the letter dated May 1, 2007. In the letter, the petitioner claims to 
employ the beneficiary and a "public relations" employee in the United States. The petitioner also asserts that 
a third worker, a "product representative" who is actually employed by the foreign entity in Germany, devotes 
about 40% of his time to the United States operation. The public relations employee, Luciana Jackson, is 
described as focusing on the dissemination of the petitioner's name, product, and reputation in the United 
States through press releases, articles, and advertising. The "product representative" is described as 
responding to end-user feedback, performing sales tasks, and developing the petitioner's websites. The 
petitioner does not clarify whether the "product representative" performs all, or just some, of these tasks for 
the United States operation. 
On July 23, 2007, the director requested additional evidence. 
 The director requested, inter alia, an 
organizational chart for the United States operation, job descriptions for each of the beneficiary's proposed 
subordinate employees, and a more detailed description of the beneficiary's duties in the United States. 
In response, counsel submitted a letter dated October 11, 2007, in which he further describes the beneficiary's 
duties in the United States. Counsel claims that the beneficiary will devote 30% of his time to marketing, 
maintaining the quality of the petitioner's products, and expanding the petitioner's product line. Counsel 
further claims that these strategies "can only be furthered by directing the [pletitioner's staff." Counsel also 
claims that the beneficiary will spend 20% of his time formulating strategies, 10% of his time considering 
expansion and relocation plans, 10% of his time appearing at trade shows, 15% of his time on financial 
matters, and 5% of his time on hiring additional staff. 
On December 17, 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. 
WAC 07 193 55228 
Page 5 
On appeal, counsel asserts that the beneficiary's duties are primarily those of a manager and an executive. 
Specifically, counsel argues that the director erred by overly simplifying the petitioner's sales business, by 
incorrectly ascribing marketing duties to the beneficiary, and by failing to properly analyze the beneficiary's 
allegedly qualifying duties. 
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. § 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 "executive/manager" and rely on partial sections of the two 
statutory definitions. 
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 no~i-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 
implementing a "rigorous" marketing strategy, maintaining the high quality of the petitioner's products, 
expanding the petitioner's product lines, "seeking out strategies that may enhance the business," considering 
expansion and relocation plans, attending trade shows, researching financial issues, and recruiting staff. The 
petitioner also claims that the beneficiary will devote much of his time to "product distribution and new 
strategic development." However, the petitioner does not define these future business enhancing strategies or 
explain what, exactly, the beneficiary will do to "manage" many of these ascribed duties, especially given that 
the petitioner only employs one additional full-time staff member who appears to perform solely advertising 
and public relations tasks. 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. Sava, 724 F. 
Supp. 1103 (E.D.N.Y. 1989), aff'd, 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. 1 90 (Reg. Comm. 1 972). 
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 "manage" the petitioner's business operations through a single full-time "public relations" employee and a 
"product representative" who intermittently assists with end-user feedback, website development, and sales. 
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. For example, the 
petitioner claims that the beneficiary engages in product distribution, strategic development, product line 
expansion, maintaining the high quality of ,the petitioner's products, financial and investment research, 
business expansion and relocation research, staff recruitment, and marketing at trade shows and automobile 
WAC 07 193 55228 
Page 6 
events. However, despite counsel's arguments to the contrary, the tasks inherent to these duties are not 
qualifying managerial or executive duties. 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. 
10 l(a)(44)(A)(iv) of the Act; see also Matter of Church Scientology International, 19 I&N Dec. at 604. 
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 "public relations" employee and an 
intermittent "product representative." However, it does not appear as if these workers are supervisory or 
managerial employees given that neither employee supervises a subordinate staff. Moreover, as the petitioner 
failed to establish the skills and education required to perform the duties of the subordinate positions, the 
petitioner has not established that the beneficiary will manage professional employees.' Accordingly, the 
petitioner has not established that the beneficiary will be employed primarily in a managerial capacity.2 
1 
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. fj 1 101 (a)(32), states that "[tlhe tern 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. 817 (Comm. 1988); Matter of ling, 13 I&N Dec. 35 (R.C. 1968); 
Matter of Shin, 1 1 I&N Dec. 686 (D.D. 1966). 
2 
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 duties related to the function. In this matter, the petitioner has 
not provided evidence that the beneficiary will manage an essential function. The petitioner's vague 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 
.. 
WAC 07 193 55228 
Page 7 
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 Citizenship and Immigration Services (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 13 13, 13 16 (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 
for at least one continuous year in a position that was managerial or executive in nature. 8 C.F.R. $8 
214.2(1)(3)(iii) and (iv). 
Counsel described the beneficiary's job duties abroad in a letter dated October 11, 2007. 
 As this job 
description is in the record, it will not be repeated verbatim here. Generally, the petitioner claims that the 
beneficiary directed the foreign employer's business abroad. He is described as primarily "administering the 
affairs" of the foreign operation, e.g., deciding how to develop and refine products and overseeing the 
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. US. Dept. ofJustice, 48 F. Supp. 2d 22,24 (D.D.C. 1999). 
i 
WAC 07 193 55228 
Page 8 
dishnbution, marketing, and manufacturing departments. The petitioner also claims that the beneficiary 
supervised one worker, the foreign employer's only other employee, in his administration of the foreign 
operation. 
Upon review, the record is not persuasive in establishing that the beneficiary was employed abroad in a 
primarily managerial or executive capacity. The beneficiary's vague job description fails to describe the 
beneficiary as primarily performing managerial or executive duties abroad. Similar to the United States 
position, it appears that the beneficiary primarily performed non-qualifying tasks in his administration of the 
foreign operation. It is not credible that a single subordinate worker relieved the beneficiary of the need to 
perform the non-qualifying tasks inherent to his duties. 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 first- 
line supervisor of a single subordinate employee, which is also a non-qualifying managerial duty. See 
sections 10l(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 for one continuous year in the three years preceding the filing of the 
petition, and the petition may not be approved for this additional reason. 
The previous approval of an L-1A petition does not preclude CIS from denying an extension based on a 
reassessment of the petitioner's qualifications. Texas A&M 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. tj 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), affd, 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.