dismissed L-1A Case: Automotive Parts

Department of Homeland Security 
20 Massachusetts Ave , N W , Rm ~3042 
Wash~ngton, DC 20529 
ppevmg clear1 y +awm*er U. S. Citizenship 
and Immigration 
Services 
T 
JUN 17 2005 
FILE: EAC 0 1 243 54508 Office: VERMONT SERVICE CENTER Date: 
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 10 1 (a)(15)(L) of the Immigration 
and Nationality Act, 8 U.S.C. 3 1 10 1 (a)(15)(L) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
This is the decision of the Administrative AppealsOffice in your case. A11 documents have been returned to 
the office that originally decided your case. Any further inquiry must be made to that office. 
kW4,' 
r-Robert P. Wiemann, Director 
'3 
dministrative Appeals Office 
EAC 0 1 243 54508 
Page 2 
DISCUSSION: The nonimrnigrant visa petition was denied by the Director, Vermont 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 incorporated in 2000, and 
claims to be a distributor of automotive parts and accessories. The petitioner claims that the U.S. entity is an 
ompany, located in Amman, Jordan. The petitioner seeks to extend its 
temporarily in the United States as its executive manager for a period 
of two years, at a yearly salary of $80,000. The director determined that the petitioner had not submitted 
sufficient evidence to demonstrate that the beneficiary had been or would be employed by the U.S. entity 
primarily in a managerial or executive capacity. 
On appeal, counsel disagrees with the director's determination and asserts that the beneficiary's duties have 
been and will continue to be managerial or executive in nature. 
To establish L-1 eligibility under section lOl(a)(15)(L) of the Immigration and Nationality Act (the Act), 
8 U.S.C. 9 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. $ 214.2(1)(l)(ii) states, in part: 
Intracompany 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 firm 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. 3 214.2(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 with the three years preceding the filing of the 
petit~on. 
(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 hirnher to perform the intended serves 
EAC 01 243 54508 
Page 3 
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. fj 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 (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. 
Section 101(a)(44)(A) of the Act, 8 U.S.C. 4 1101(a)(44)(A), provides: 
The term "managerial capacity" means an assignment within an organization in which the 
employee primarily- 
(1) 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. 5 1 101(a)(44)(B), provides: 
EAC 01 243 54508 
Page 4 
The term "executive capacity" means an assignment within an organization in which the 
employee primarily- 
(1) Directs the management of the organization or a major component or 
function of the organization; 
(i i) Establishes the goals and policies of the organization, component, or 
function; 
(iii) Exercises wide latitude in discretionary decision-making; and 
(iv) Receives only general supervision or direction from higher level 
executives, the board of directors, or stockholders of the organization. 
In a letter of support, dated July 26,200 1, the foreign entity's president stated that the beneficiary's position 
involved the management of the U.S. entity as follows: 
[The beneficiary] has been employed in the position of executive manager that involves 
executive functions. As director of US operations, [the beneficiary] works closely with [the 
foreign entity's] senior managers in Jordan in development of American markets. He evaluates 
and reviews US demands for various automotive parts and accessories that we distribute and 
advise the Jordanian management of any modifications in the products which he finds to be more 
marketable in the USA. He supervises implementation of marketing strategies, advertisement 
and promotional activities, in order to broaden US awareness of the products we distribute. 
In response to the director's request for evidence counsel described the beneficiary's job duties as: 
With regard to the manageriaVexecutive nature of beneficiary's duties withn the US entity, 
please be advised that the beneficiary has been performing the following duties: directing 
distribution, purchasing and marketing operations for the company's US affiliate . . . . He 
performs executive duties by selecting US customs and establishing a US client base, evaluating 
business options, financial aspects of business arrangement and quality of products offered by 
US sellers and profitability of these arrangements for the parent company overseas. He also 
evaluates US demand for parent company's various products and advises Jordanian management 
of any modifications in these products which he finds to be more marketable in the USA. 
[Tlhe beneficiary really performs managerial functions by establishing, proposing, developing 
and applying different aspects of business plans between US customers and Jordanian company 
and execute[s] all details of business arrangements and decisions pertaining to US affiliate 
business [sic]. 
With regard to a breakdown of his duties, [the beneficiary] spends 30% of each week working on 
the development of US market share by establishing, maintaining and developing a client base. 
He spends approximately 20% per week conferring about business details with the management 
of the foreign entity and maintaining business contacts with USA distnbutors as set forth above, 
and 20% overseeiilg distribution, as well as financial, marketing and promotional issues [sic]. 
EAC 01 243 54508 
Page 5 
He further spends 20% monitoring market response to their product lines, and 20% attending to 
normal managerial and financial responsibilities [sic]. 
In reference to a complete job description of all employees, please be advised that one 
administrative assistant was hired as of November 1, 2001. She spends 100% of her week 
performing normal administrative assistant's duties such as word processing, typing letters and 
maintaining beneficiary's calendar and files. 
The director stated that, based upon the evidence, it appeared that the beneficiary has performed and will perform 
predominantly the duties of a customer service/sales representative, marketing representative, and purchasing 
agent rather than managerial or executive duties. The director also noted that the U.S. entity did not employ any 
person who has or would relieve the beneficiary from performing non-managerial functions associated with the 
company's distribution, purchasing, sales, marketing, and promotions activities. The director stated that it was 
difficult to understand how the beneficiary could perform predominantly managerial or executive functions when 
the only other employee, an administrative assistant, was solely responsible for word processing and typing. 
On appeal, counsel argues that the beneficiary has performed and will perform the duties of a customer service 
representative, marketing representative, and purchasing agent. Counsel also argues that the beneficiary's job 
duties were clearly described in the letter of support dated July 26, 2001, and in the letter of support dated 
December 13, 2001. Counsel reiterates the beneficiary's job duties as described by the petitioner. Counsel 
argues that the duties described are equivalent to that of a branch manager as described in the Department of 
Labor's Dictionary of Occupational Titles. Counsel contends that the beneficiary's job duty description is 
identical to that which was submitted with a previous petition that was approved. 
On reviewing the petition and the evidence, the petitioner has not established that the beneficiary has been or 
will be employed in a managerial or executive capacity. The petitioner implies throughout the record that the 
U.S. entity is still in its developmental stages. In a letter of support dated July 26, 2001, the foreign entity's 
president stated, "...[the beneficiary] has had a great role in the expansion plans, and his continuing presence is 
essential to bring the expansion effort to a successful conclusion. It is anticipated that the expansion plans will be 
completed by December 2003." The record reveals that the petitioner has been doing business for more than one 
year. The petitioner does not qualify as a "new office" pursuant to 8 C.F.R. 9 214.2(1)(3)(v)(C) which allows the 
petitioning business one year to become sufficiently operational. The fact that the petitioner is in a preliminary 
stage of organizational development does not relieve it from meeting statutory requirements. The petitioner must 
establish eligbility at the time of filing the nonirnmigrant visa petition. A visa petition may not be approved 
based on speculation of future eligibility or after the petitioner 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 (Comm. 197 1). 
Counsel noted that Citizenship and Immigration Services (CIS) approved other petitions that had been 
previously filed on behalf of the beneficiary that contained the same information as provided in the instant 
petition. The director's decision does not indicate whether he reviewed details pertaining to the prior 
approvals of the other nonimmigrant petitions. If the previous nonimmigrant petitions were approved based 
on the same information as that contained in the current record, the approval would constitute clear and gross 
error on the part of the director. The AAO is not required to approve applications or petitions where 
eligibility has not been demonstrated, merely because of prior approvals that may have been erroneous. See, 
e.g. Matter of Church Scientology International, 19 I&N Dec. 593,597 (Comrn. 1988). It would be absurd to 
EAC 0 1 243 54508 
Page 6 
suggest that CIS or any agency must treat acknowledged errors as binding precedent. Szlssex Engg. Ltd. v. 
Montgomery, 825 F.2d 1084,1090 (6th Cir. 1987), cert denied 485 U.S. 1008 (1988). 
Furthermore, the AAO's authority over the service centers is comparable to the relationship between a court 
of appeals and a district court. Even if a service center director had approved the nonimmigrant petitions on 
behalf of the beneficiary, the AAO would not be bound to follow the contradictory decision of a service 
center. Louisiana Philharmonic Orchestra v. INS, 2000 WL 282785 (E.D. La.), afyd, 248 F.3d 1139 (5th Cir. 
2001), cert. denied, 122 S.Ct. 5 1 (2001). 
Counsel asserts that in comparison to the definitions of "branch manager" and "sales manager" found in the 
Department of Labor's Dictionary of Occupational Titles, the beneficiary's job duties qualify as managerial 
activities. Contrary to counsel's contentions, the petitioner has not shown that the Department of Labor's 
description of a branch manager in the DOT has any bearing on this proceeding. The petitioner has not 
shown that the Department of Labor reserves the title of manager to those working in a managerial capacity as 
defined at section 101(c)(44)(A) of the Act. Further, the Department of Labor's Dictionary of Occupational 
Titles is not considered a primary source in evaluating the petitioner's eligibility for benefits and services and 
will not be considered as such in the adjudication of petitions or applications. CIS policy dictates that the 
petitioner's eligibility is primarily based upon statutory and regulatory interpretations. 
See 8 C.F.R. 5 214.2(1)(14)(ii). Although the definitions may be useful as an aid in weighing the evidence of 
record, such evidence is not binding on any CIS officer as it merely indicates the Department of Labor's 
occupational definitions. 
When examining the managerial or executive capacity of the beneficiary, the AAO will look first to the 
petitioner's description of the beneficiary's job duties. See 8 C.F.R. $ 214.2(1)(3)(ii). The petitioner's 
description of the job duties must clearly desclbe the duties to be performed by the beneficiary and indicate 
whether such duties are either in an executive or managerial capacity. Id. In addition, the position must 
involve significant authority over the generalized policy of an organization or a major subdivision of an 
organization, and the majority of the employee's duties must be at the managerial or executive level. In this 
matter, the evidence shows that the majority of the beneficiary's duties will be non-qualifying, functional 
duties rather than managerial or executive duties. Furthermore, there is insufficient evidence to demonstrate 
that the beneficiary possesses significant authority over the generalized policy of the organization or a major 
subdivision of the organization. 
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: directing the distribution, purchasing, and marketing operations of the U.S. 
entity. 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). 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), am, 905 F.2d4 1 (2d. Cir. 
1990). 
The petitioner describes the beneficiary as being involved in the marketing, sales, purchasing, and distribution 
of the petitioner's and foreign entity's products. Since the beneficiary is directly involved in the sales, 
purchasing, distribution and marketing of the petitioner's product he is performing tasks necessary to provide 
a service or product, and these duties are not considered to be managerial or executive in nature. An employee 
EAC 01 243 54508 
Page 7 
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, supra. In the 
instant case, it appears that the beneficiary is an agent of the foreign entity rather than a manager of a division 
or function of the U.S. entity. 
The record does not demonstrate that the U.S. entity contains the organizational complexity to support a 
managerial or executive staff position. The petitioner claims to employ two individuals. Counsel stated in a 
letter dated December 3 1, 2001, that the only other employee, an administrative assistant, had been hlred by the 
U.S. entity on November 1, 2001. Counsel stated that the administrative assistant's duties consist of word 
processing, typing letters, and maintaining beneficiary's calendar and files. Although counsel asserts that a 
subordinate staff assists the beneficiary, 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. 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. 
Furthermore, because there is no independent documentary evidence to substantiate the petitioner's claim that 
the subordinate relieves the beneficiary from performing non-qualifying duties, the beneficiary cannot be 
deemed to be primarily acting in a managerial or executive capacity. 
Although the petitioner claims that the beneficiary directs and manages the petitioner's sales, distribution, 
customer service, and marketing activities, there is no evidence to show that it has anyone on its staff to 
actually perform those functions. It is noted by the AAO that the administrative assistant was not hired by 
the U.S. entity until after the petition was filed on August 10, 2001. Thus, either the beneficiary himself is 
performing the sales, distribution, customer service, and marketing functions or he does not actually manage 
the functions as claimed by the petitioner. If the beneficiary is performing the sales, distribution, customer 
service, and marketing 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, supra. For this reason, the petition may not 
be approved. 
Beyond the decision of the director, the record is not persuasive in demonstrating that a qualifying 
relationship exists between the petitioner and a foreign entity as required by 8 C.F.R. 9 214.2(1)(l)(ii)(G). 
The petitioner claims that the U.S. entity is an affiliate of the foreign entity. In a letter of support, dated 
December 5, 2001, the foreign entity's president provided the following breakdown of stock distribution for 
both the US and foreign entities. 
US ENTITYIFAQIR AND COMPANY, L.L.C. 
NAME % OF STOCK OWNED 
EAC 01 243 54508 
Page 8 
FOREIGN ENTITYIAHMAD AL FAQIR COMPANY 
NAME % OF STOCK OWNED 
The petitioner has failed to establish that there is an affiliate relationship between the U.S. and foreign entities as 
the record does not show that both entities are owned and controlled by the same group of individuals, each 
owning and controlling approximately the same share or proportion of each entity. Furthermore, there is 
insufficient evidence to show that a parent-subsidiary relationship exists between the U.S. and foreign 
entities. Although specifically requested by the director, the petitioner has failed to submit copies of stock 
certificates, stock ledgers, corporate meeting minutes, Notice of Transactions, or annual reports as proof of 
ownership and control. In addition, the petitioner has failed to establish that it has secured sufficient physical 
premises to house the office. The petitioner submitted as evidence a copy of a lease agreement, dated 
November 1, 2001, for the lease of a "cubicle." The petitioner also submitted copies of invoices dated 
October, November, and December 2001, which indicate that the petitioner paid $500.00 monthly for "cube 
rental." There is no evidence to show that the "cubicle" is sufficient to house the petitioner's business as a 
distributor of automotive parts and accessories. For these additional reasons, 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. fj 1361. The petitioner has not sustained that burden. 
ORDER: The appeal is dismissed.