dismissed L-1A Case: Automotive Parts

U.S. Department of Homeland Security 
20 Massachusetts Ave., N.W., Rm. 3000 
Washington, DC 20529-2090 
tdentifltag data deleted to 
prevent clearly unwarranted 
 U. S. Citizenship 
invasion of personal privacy 
 and Immigration Services 
P'UBLIC COPY 
 h .- 
File: EAC 08 167 5 1712 Office: TEXAS SERVICE CENTER Date: APR 0 2 2009 
Petition: 
 Petition for a Nonimrnigrant Worker Pursuant to Section 10 1 (a)(15)(L) of the Immigration 
and Nationality Act, 8 U.S.C. 9 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. 
If you believe the law was inappropriately applied or you have additional information that you wish to have 
considered, you may file a motion to reconsider or a motion to reopen. Please refer to 8 C.F.R. 5 103.5 for 
the specific requirements. All motions must be submitted to the office that originally decided your case by 
filing a Form I-290B, Notice of Appeal or Motion, with a fee of $585. Any motion must be filed within 30 
days of the decision that the motion seeks to reconsider or reopen, as required by 8 C.F.R. 5 103.5(a)(l)(i). 
John F. ~rGsom, Acting Chief 
Administrative Appeals Office 
EAC 08 167 51712 
Page 2 
DISCUSSION: The Director, Vermont 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-1 A nonimmigrant intracompany transferee pursuant to section 101 (a)(15)(L) of the Immigration and 
Nationality Act (the Act), 8 U.S.C. 5 1 101 (a)(15)(L). The petitioner is a corporation organized under the laws 
of the State of Texas and is allegedly a transmission parts dealer. 
 , 
The director denied the petition concluding that the petitioner did not establish that the beneficiary will be 
employed in the United States in a primarily managerial or executive capacity. 
The petitioner subsequently filed an appeal. The director declined to treat the appeal as a motion and 
forwarded the appeal to the AAO for review. On appeal, the petitioner asserts that the director erred and that 
the beneficiary will perform primarily qualifying managerial duties in the United States. 
To establish eligibility for the L-1 nonimmigrant visa classification, the petitioner must meet the criteria 
outlined in section 10 1 (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. 
EAC 08 167 51712 
Page 3 
Section 10 1 (a)(44)(A) of the Act, 8 U.S.C. 9 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. 8 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. 
Although the beneficiary is described as a "branch manager," the petitioner does not specify in the initial 
petition whether the beneficiary will primarily perform managerial duties under section 101(a)(44)(A) of the 
Act, or primarily executive duties under section 101(a)(44)(B) of the Act. Given the lack of clarity, the AAO 
will assume that the petitioner is claiming that the beneficiary will be employed in either a managerial or an 
executive capacity and will consider both classifications. 
The petitioner claims in a letter dated April 1, 2008 to employ a total of 16 workers in its two locations in 
Laredo, Texas and McAllen, Texas. The beneficiary is described as the "branch manager" of the McAllen 
location and as having the following duties: 
EAC 08 167 51712 
Page 4 
[The beneficiary] is the Branch Manager in McAllen. She is fluent in both English and 
Spanish, has thorough knowledge of the automotive transmission parts business and is highly 
competent to implement computer systems and inventory control and procurement, as well as 
cash management procedures. As Branch Manager she has the authority to hire and fire 
personnel, make marketing decisions, commit funds, procure inventory, and responsibility for 
cash management and reporting. 
On June 3, 2008, the director requested additional evidence. The director requested, inter alia, a more 
detailed description of the beneficiary's proposed duties and position descriptions for all subordinate 
employees in the United States, including breakdowns of the number of hours devoted to each of the 
employees' job duties on a weekly basis. 
In response, the petitioner submitted a letter dated June 16, 2008 in which it lists six employees under the 
beneficiary's supervision at the McAllen location: two truck driversldelivery persons, a standard transmission 
specialistlretail and wholesale salesman, an assistant manager, a front deskfretail and wholesale salesman, and 
an automatic transmission specialistlretail and wholesale sales manager. The petitioner also indicated that 
none of the beneficiary's subordinates has earned a university degree. However, the petitioner did not 
describe the duties of the subordinate employees. 
The petitioner further describes the beneficiary's duties in the United States in the June 16, 2008 letter as 
follows: 
As the Branch Manager at McAllen, [the beneficiary] is responsible for all personnel matters, 
including the hiring and termination of employees, the decision to purchase and, within 
guidelines, setting of prices of products sold. She is also responsible for scheduling of 
employees and their activities. She is responsible for the physical facility and its efficient 
operation. She is responsible for fleet maintenance, building and inventory security, and all 
aspects [of] store operations. She is responsible for the collection and transfer to accounting 
in Laredo, all of the billing and financial information related to McAllen operations. She 
approves all purchasing decisions related to the McAllen store. She is responsible for 
controlling costs and revenues to meet projected budgets for store operation. She is also 
charged with maintaining customer relations and resolving important customer issues as they 
arise. She is also charged with learning of new suppliers, industry trends, and to maintain her 
expertise as a buyer of specialized transmission products. She does this by constant study 
and attending national trade events, such as her attendance last October/November in Las 
Vegas at the national annual convention of our association of transmission and related 
automotive parts manufacturers. 
On July 24, 2008, the director denied the petition. The director concluded that the petitioner failed to 
establish that the beneficiary will be employed primarily in a managerial or executive capacity. 
On appeal, counsel asserts that the beneficiary will primarily perform qualifying duties in the United States. 
Counsel argues that the beneficiary will manage a component, department, or subdivision of the organization, 
namely the McAllen wholesale distribution center. 
EAC 08 167 51712 
Page 5 
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. fj 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. 
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 her administration of the seven-employee wholesale 
distribution center. In support of the petition, the petitioner has submitted a vague and non-specific job 
description which fails to sufficiently describe what the beneficiary will do on a day-to-day basis. For 
example, the petitioner states that the beneficiary will approve all purchasing decisions, control costs and 
revenues, be responsible for all aspects of store operations, maintain customer relations, and resolve important 
customer issues. However, the petitioner does not explain what, exactly, the beneficiary will do to perform 
these duties other than to act as the sole administrative employee of the McAllen branch and as the first-line 
supervisor of six subordinate distribution center employees. Furthermore, the petitioner has not established 
that the beneficiary's administrative and operational duties, e.g., purchasing, setting prices, scheduling 
employees, maintaining the physical facility and the fleet, collecting billing and financial information, 
working with customers, and attending trade events, are bona fide managerial or executive duties. The fact 
that the petitioner has given the beneficiary a managerial or executive title and has prepared a vague job 
description which includes inflated job duties does not establish that the beneficiary will actually perform 
managerial or executive duties. Specifics are clearly an important indication of whether a beneficiary's duties 
are primarily executive or managerial in nature; otherwise meeting the definitions would simply be a matter 
of reiterating the regulations. Fedin Bros. Co., Ltd. v. Suva, 724 F. Supp. 1103 (E.D.N.Y. 1989), 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. 190 (Reg. Comm. 1972). 
Consequently, the record is not persuasive in establishing that the beneficiary will primarily perform 
qualifying duties in her administration of the wholesale distribution center. As noted above, the petitioner 
asserts that the beneficiary will oversee the petitioner's business operation as the first-line supervisor of six 
subordinate workers. The petitioner also asserts that the beneficiary will perform a variety of operational and 
administrative tasks associated with billing, purchasing, scheduling, customer relations, and facilities 
maintenance. However, the record does not establish that the beneficiary will be relieved of the need to 
perform these non-qualifying administrative, operational, and first-line supervisory tasks by a subordinate 
staff. Accordingly, it appears more likely than not that the beneficiary will primarily perform non-qualifying 
first-line supervisory, administrative, or operational tasks in her administration of the branch. 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 IOl(a)(44)(A) and (B) of the 
Act (requiring that one "primarily" perform the enumerated managerial or executive duties); see also Matter 
of Church Scientology International, 19 I&N Dec. 593, 604 (Comm. 1988). A managerial employee must 
have authority over day-to-day operations beyond the level normally vested in a first-line supervisor, unless 
the supervised employees are professionals. 101(a)(44)(A)(iv) of the Act; see also Matter of Church 
EACO816751712 
Page 6 
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 six subordinate distribution center workers, 
i.e., two truck driverstdelivery persons, a standard transmission specialisthetail and wholesale salesman, an 
assistant manager, a fi-ont deskhetail and wholesale salesman, and an automatic transmission specialistlretail 
and wholesale sales manager. However, it has not been established that any of these workers is truly a 
supervisory or managerial worker. To the contrary, it appears that these workers will perform the tasks 
necessary to the operation of the distribution center. Furthermore, the petitioner failed to describe the duties 
of these subordinate workers, even though this evidence was specifically requested by the director. 
Therefore, it cannot be concluded that any of these subordinate workers is truly a managerial, supervisory, or 
professional employee. Failure to submit requested evidence that precludes a material line of inquiry shall be 
grounds for denying the petition. 8 C.F.R. 5 103.2(b)(14). Finally, 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. $ 1101 (a)(32), states that "[tlhe term profession shall include but not 
be limited to architects, engineers, lawyers, physicians, surgeons, and teachers in elementary or secondary 
schools, colleges, academies, or seminaries." The term "profession" contemplates knowledge or learning, not 
merely skill, of an advanced type in a given field gained by a prolonged course of specialized instruction and 
study of at least baccalaureate level, which is a realistic prerequisite to entry into the particular field of 
endeavor. Matter of Sea, 19 I&N Dec. 81 7 (Comm. 1988); Matter of ling, 13 I&N Dec. 35 (R.C. 1968); 
Matter of Shin, 11 I&N Dec. 686 (D.D. 1966). 
2 
While the petitioner has not specifically 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 will manage 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. 5 214.2(1)(3)(ii). In 
addition, the petitioner's description of the beneficiary's daily duties must demonstrate that the beneficiary 
will manage the function rather than perform the tasks related to the function. In this matter, the petitioner 
has not provided evidence that the beneficiary will manage an essential hnction. 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 
employees and will perform non-qualifying tasks. Absent a clear and credible breakdown of the time spent 
by the beneficiary performing her duties, the AAO cannot determine what proportion of her duties will be 
EAC 08 167 51712 
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 U.S. Citizenship and Immigration Services (USCIS) "may properly consider an organization's small size 
as one factor in assessing whether its operations are substantial enough to support a manager." Family, Inc. v. 
US. Citizenship and Immigration Services, 469 F.3d 1313, 1316 (9th Cir. 2006) (citing with approval 
Republic of Transkei v. INS, 923 F.2d 175, 178 (D.C. Cir. 1991); Fedin Bros. Co. v. Sava, 905 F.2d 4 1,42 (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 USCIS 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 has failed to establish that the beneficiary was employed 
abroad in a primarily managerial or executive capacity. 
The petitioner describes the beneficiary's duties abroad as "director of purchasing" in a letter dated April 1, 
2008 as follows: 
[The beneficiary's] position with [the foreign employer] as Director of Purchasing required a 
solid foundation in the tools of forecasting, budgeting and inventory control. Thousands of 
parts are inventoried and determination of optimum stocking levels and optimum re-supply 
timing is critical to both properly service our customers and to minimize and control costs. In 
managerial, nor can it deduce whether the beneficiary will primarily perform the duties of a function manager. 
See IKEA US, Inc. v. US. Dept. of Justice, 48 F. Supp. 2d 22,24 (D.D.C. 1999). 
EAC 08 167 51712 
Page 8 
this position she had the responsibility for procurement, budgeting, cast-flow forecasting, and 
inventory control. 
The petitioner also claims that the beneficiary supervised seven employees abroad. 
Upon review, it has not been established that the beneficiary primarily performed managerial or executive 
duties abroad. To the contrary, based on the extremely vague job description provided, it appears instead that 
the beneficiary primarily performed administrative, operational, and first-line supervisory tasks. Absent 
evidence to the contrary, the duties ascribed to the beneficiary, e.g., procurement, budgeting, cash-flow 
forecasting, and inventory control, do not appear to be qualifying managerial or executive duties. Once again, 
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; see also Matter of Church Scientology International, 19 I&N Dec. at 604. Also, to the extent 
the beneficiary supervised subordinate workers, this first-line supervisory task would also be non-qualifying. 
As the petitioner failed to describe the duties of the beneficiary's subordinates abroad, it cannot be discerned 
whether any of these workers was a managerial, supervisory, or professional employee. Once again, a 
managerial or executive employee generally must have authority over day-to-day operations beyond the level 
normally vested in a first-line supervisor. 101(a)(44) of the Act; see also Matter of Church Scientology 
International, 19 I&N Dec. at 604. 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. 
Accordingly, as the petitioner failed to establish that the beneficiary was employed abroad in a primarily 
managerial or executive capacity, the petition may not be approved for this additional reason. 
While the AAO acknowledges that USCIS previously approved L-1A nonimmigrant petitions filed on behalf 
of the beneficiary, the prior approvals do not preclude USCIS from denying an extension of the original visa 
based on reassessment of the petitioner's qualifications. Texas Ad24 Univ. v. Upchurch, 99 Fed. Appx. 556, 
2004 WL 1240482 (5th Cir. 2004). Each nonimmigrant petition filing is a separate proceeding with a 
separate record of proceeding and a separate burden of proof. See 8 C.F.R. 5 103.8(d). In making a 
determination of statutory eligibility, USCIS is limited to the information contained in that individual record 
of proceeding. See 8 C.F.R. 5 103.2(b)(16)(ii). Despite any number of previously approved petitions, USCIS 
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. 5 1361. 
If other nonimmigrant petitions were approved based on the same unsupported assertions that are contained in 
the current record, the approvals would constitute material and gross error on the part of the director. Neither 
the director nor the AAO is 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. at 597. 
An application or petition that fails to comply with the technical requirements of the law may be denied by 
the AAO even if the Service Center does not identify all of the grounds for denial in the initial decision. See 
Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 2001), afd, 345 F.3d 683 
EAC 08 167 51712 
Page 9 
(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 nova 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.