dismissed L-1A Case: Automotive Products

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U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. 3000 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
FILE: SRC 04 217 50229 Office: TEXAS SERVICE CENTER Date: a 1 9 2006 
PETITION: 
 Petition for a Nonimmigrant Worker Pursuant to Section 10 1 (a)(15)(L) of the 
Immigration and Nationality Act, 8 U.S.C. $ 1 101(a)(15)(L) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Office in your case. All documents have been returned 
to the office that originally decided your case. Any further inquiry must be made to that office. 
Pbert P. Wiemann, Chief 
Administrative Appeals Office 
SRC 04 217 50229 
Page 2 
DISCUSSION: The Director, Texas Service Center, denied the petition for a nonimmigrant visa. The 
matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. 
The petitioner claims to be a Texas corporation and an affiliate of Impulsora de Lubricantes y Aditivos, 
S.A. de C.V. located in Mexico. The petitioner states that the United States entity is engaged in the sales 
and distribution of automotive and lubricant products. Accordingly, the United States entity petitioned 
Citizenship and Immigration Services (CIS) to classify the beneficiary as a nonimmigrant intracompany 
transferee (L-1A) pursuant to section 101(a)(15)(L) of the Act. The beneficiary was initially granted a 
one-year period of stay to open a new office in the United States and the petitioner now seeks to extend 
the beneficiary's stay for three additional years in order to continue to fill the position of president. 
On October 1, 2004, the director denied the petition concluding that the record contains insufficient 
evidence to demonstrate that the beneficiary will be employed in a primarily managerial or executive 
capacity. 
On November 1, 2004, the petitioner's counsel timely submitted the instant appeal. On appeal, counsel 
for the petitioner asserts that the U.S. entity showed sufficient growth in the first year of operations and at 
the current rate of growth, the U.S. entity will increase its income of over 50% by the second year of 
operation. Counsel for the petitioner also states that the position offered to the beneficiary is 
managerial/executive in nature since he is the "sole person establishing and directing the financial and 
representative goals of the company." Further, counsel for the petitioner indicates that the U.S. entity 
employs the beneficiary as president, the vice president of sales and marketing, and recently hired an 
assistant secretary. Counsel for the petitioner also indicates that the U.S. entity will hire additional 
employees at a future date as the "Petitioner's business and distribution operations are properly organized 
and fully functional." Counsel submits a brief and additional documentation in support of the appeal. 
To establish eligibility under section 101(a)(15)(L) of the Act, the petitioner must meet certain criteria. 
Specifically, within three years preceding the beneficiary's application for admission into the United 
States, a firm, corporation, or other legal entity, or an affiliate or subsidiary thereof, must have employed 
the beneficiary for one continuous year. Furthermore, 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. $ 214.2(1)(3) further 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. 
SRC 04 217 50229 
Page 3 
(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 hirnlher to perform the 
intended services in the United States; however, the work in the United States 
need not be the same work which the alien performed abroad. 
The regulation at 8 C.F.R. 
 214.2(1)(14)(ii) also provides that a visa petition, 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. 
The first issue to be addressed in this proceeding is whether the petitioner has established that the 
beneficiary has been and will be employed in a primarily managerial or executive capacity. 
Section 101(a)(44)(A) of the Act, 8 U.S.C. 9 1101(a)(44)(A), provides: 
The term "managerial capacity" means 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 
SRC 04 217 50229 
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leave authorization), or if no other employee is directly supervised, hctions at a senior 
level withn the organizational herarchy or with respect to the fbnction 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. 
 1101(a)(44)(B), provides: 
The term "executive capacity" means 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-malung; and 
(iv) 
 receives only general supervision or direction from higher level executives, the 
board of directors, or stockholders of the organization. 
The nonimmigrant petition was filed on August 9, 2004. The Form 1-129 indicates that the beneficiary will 
continue to be employed in the position of president. In the letter of support, the petitioner described the 
duties to be performed by the beneficiary as the following: 
In connection with its desire to expand and market its proprietary line of automotive 
products and lubricants, [the petitioner] wishes to continue to employ on a full-time, 
temporary basis a President to implement the distribution and market its proprietary line to 
the United States. The President will continue to exercise all decision-malung authority and 
administrate all day-to-day activities. He will continue to have fulldiscretionary [sic] 
authority over the hiring and firing of all company personnel and coordinates all liaising 
activities involving international marketing between [the petitioner] and U.S. companies. He 
will continue to establish all financial goals, objectives and operations as well as develop the 
local market and procurement base. He will continue to oversee the research and analysis of 
new product lines and determine the feasibility of marketing same into Mexico [sic]. He 
will continue to oversee all the day-to-day international marketing and trade operations 
involving proper documentation, letter of credit, new venture planning, budgeting and global 
purchasing and licensing. He will continue to have sole discretionary authority in 
determining and directing all financial goals and policies by determining investment 
projects. 
On August 18, 2004, the director requested an organizational chart of the U.S. company, specifiing the 
beneficiary's position withln the organizational hierarchy, as well as the names, job titles and duties of the 
SRC 04 21 7 50229 
Page 5 
employees the beneficiary supervises. In addition, the director requested copies of the company's Texas 
Employer's Quarterly Reports and the Employer's Quarterly Federal Tax Return, Form 941, for 2004. 
In the response, the petitioner submitted an organizational chart for the U.S. entity indicating the 
beneficiary as president supervises an assistant secretary and the vice president of marketing. The chart 
also indicated that the assistant secretary supervises two administrative employees, whose positions were 
not filled, and the vice president of marketing supervises one salesperson position which was also not 
filled at the time of filing the petition. The petitioner indicated that the vice president of marketing is "in 
charge of the company's sales and marketing programs," while the assistant secretary is "in charge of 
compliance reporting for financial institutions and government agencies." 
In addition, the petitioner submitted the Employer's Quarterly Federal Tax Return, Form 941, and the 
Texas Employer's Quarterly Report for the first and second quarter of 2004. According to the submitted 
documentation, the U.S. company employed two employees, rather then three employees as indicated on 
the organizational chart. The petitioner's quarterly wage report did not confirm the employment of the 
individual identified as the petitioner's "assistant secretary." 
The director denied the petition on October 1, 2004 stating that the submitted evidence is not persuasive 
in establishing that the position is in a capacity that is managerial or executive in nature. The director 
noted that the Employer's Quarterly Federal Tax Return and the Texas Employer's Quarterly Report 
indicated that the U.S. entity only hired two employees rather then three employees as indicated on the 
organizational chart. Thus, the beneficiary will only supervise the vice president of marketing. The 
director concluded that the petitioner has not demonstrated that the duties to be performed by the 
beneficiary will be primarily those of an executive or managerial nature. 
On appeal, counsel for the petitioner submits the company's IRS Form 941, Employer's Quarterly Federal 
Tax Return for the quarter ending on September 20, 2004 to establish that the Assistant Secretary has 
indeed been hired in August 2004. In addition, counsel for the petitioner explains why the U.S entity has 
not hired administrative employees and sales personnel stating the following: 
The U.S. company is currently spending time developing and converting the sales and 
distribution of products from Mexican resources before adding on highly specialized 
employees to the staff. Such personnel must be added as the Petitioner's business and 
distribution operations are properly organized and fully functional. The business must 
come 1" and the employees then are needed to implement the business. The Houston 
office is still only one-year old, but is growing. 
In addition, counsel for the petitioner asserts that the position offered to the beneficiary is primarily 
managerial/executive in nature. Counsel for the petitioner further described the duties to be performed by 
the beneficiary as the following: 
As President for [the petitioner], [the beneficiary] primarily directs management of and 
exercises total authority over all day-to-day activities and operations of the Petitioner's 
office. In effect, he is the function manager of all aspects of the U.S. representative 
function, a vital interface with the U.S. market and business customers. He exercises 
total discretionary decision-malung and authority over the day-to-day operations 
SRC 04 2 17 50229 
Page 6 
including personnel and financial decisions. He exercises total discretionary authority 
over all major corporate functions including the Company budget, and long-term 
financial goals and business plan. He also establishes the organizational goals and 
policies of the Company as the on site executive officer along with the Vice President. 
He directly supervises and controls the work of the Vice President thus indirectly 
supervising and controlling the activities of all company personnel. He is ultimately 
responsible for the return on the investment, the cash flow, and the overall corporate 
health and development of the Company. [The beneficiary] receives no supervision or 
direction from higher-level executives and reports only to the Board of Directors of [the 
petitioner]. 
Upon review of the petition and evidence, the petitioner has not established that the beneficiary will be 
employed in a managerial or executive capacity. 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. 4 
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. 
In addition, the definitions of executive and managerial capacity have two parts. First, the petitioner must 
show that the beneficiary performs the high-level responsibilities that are specified in the definitions. 
Second, the petitioner must prove that the beneficiary primarily performs these specified responsibilities 
and does not spend a majority of his or her time on day-to-day functions. Champion World, Inc. v. INS, 
940 F.2d 1533 (Table), 1991 WL 144470 (9th Cir. July 30, 1991). 
The beneficiary's position description is too general and broad to establish that the preponderance of his 
duties is managerial or executive in nature. The beneficiary's job description includes vague duties such 
as the beneficiary will "exercise all decision-mahng authority and administrate all day-to-day activities," 
"have fdldiscretionary authority over the hiring and firing of all company personnel and coordinates all 
liaising activities involving international marketing between [the petitioner] and U.S. companies," "establish 
all financial goals, objectives and operations as well as develop the local market and procurement base," 
"exercises total discretionary authority over all major corporate functions including the Company budget, 
and long-term financial goals and business plan," and "establishes the organizational goals and policies of 
the Company as the on site executive officer along with the Vice President." Reciting the beneficiary's 
vague job responsibilities or broadly-cast business objectives is not sufficient; the regulations require a 
detailed description of the beneficiary's daily job duties. The petitioner has failed to provide any detail or 
explanation of the beneficiary's activities in the course of his daily routine. The actual duties themselves 
will reveal the true nature of the employment. Fedin Bros. Co., Ltd. v. Suva, 724 F. Supp. 1103, 1108 
(E.D.N.Y. 1989), afyd, 905 F.2d 41 (2d. Cir. 1990). The petitioner's descriptions of the beneficiary's 
position do not identi@ the actual duties to be performed, such that they could be classified as managerial 
or executive in nature. 
The job description also includes several non-qualifying duties such as the beneficiary will "oversee the 
research and analysis of new product lines and determine the feasibility of marketing same into Mexico 
[sic]," and "oversee all the day-to-day international marketing and trade operations involving proper 
documentation, letter of credit, new venture planning, budgeting and global purchasing and licensing." 
Furthermore, a document submitted on appeal entitled "First Year Resume" for the U.S. company states 
SRC 04 217 50229 
Page 7 
that all sales are being made through the President, Vice President, and through an outsourced company 
paid by commission. The petitioner has not submitted documentary evidence to confirm the existence of 
this external sales staff, and the petitioner's Profit and Loss statement for the year ended on September 30, 
2004 does not include commission payments among the company's expenses. As the petitioner indicates 
that it will hire sales representatives in December 2005, it is reasonable to conclude that the beneficiary 
will continue to be responsible for sales of the petitioner's products. It appears that the beneficiary will be 
providing the services of the business rather then directing such activities through subordinate employees. 
An employee who "primarily" performs the tasks necessary to produce a product or provide a service 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). 
As noted above, the petitioner indicates that it will hire sales representatives in December 2005. On 
appeal, counsel for the petitioner explains that the company is currently in the development stage and 
more personnel will be hired in the future "as the Petitioner's business and distribution operations are 
properly organized and fully functional." 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 I&N Dec. 248 
(Reg. Comm. 1978). 
According to the petitioner, in addition to the beneficiary, the company has hired a vice president of 
marketing and has recently hired an assistant secretary. The petitioner's quarterly wage report confirms 
that "A. Camarillo" was hired in August 2004 at a salary of $400.00 per month. However, this individual 
did not appear on the organizational chart submitted in response to the director's request for evidence, and 
the record in fact contains no evidence of payments to the employee identified as the company's "assistant 
secretary," Robert Camp. It is incumbent upon the petitioner to resolve any inconsistencies in the record 
by independent objective evidence. Any attempt to explain or reconcile such inconsistencies will not 
suffice unless the petitioner submits competent objective evidence pointing to where the truth lies. Matter 
ofHo, 19 I&N Dec. 582, 591-92 (BIA 1988). The petitioner's above-referenced "First Year Resume" 
indicates that the employee hired in August 2004 is a temporary administrative assistant responsible for 
maintaining books and assisting in processing receivables, payables and payroll. Neither of the 
beneficiary's subordinates has a staff to supervise. Thus, there is no evidence that the U.S. company has 
hired employees to perform the shipping, merchandising, purchasing, credit and accounting operations 
and budget that are necessary to produce or provide services. As the United States company has only 
three employees, it can be reasonably assumed, and has not been proven otherwise, that the beneficiary is 
directly performing purchasing, marketing, sales and financial development, and all of the various 
operational tasks inherent in operating a company on a daily basis, such as acquiring products, 
maintaining inventory, monitoring shipments, paying bills, and customer service. Based on the record of 
proceeding, the beneficiary's job duties are principally composed of non-qualifying duties that preclude 
him from functioning in a primarily managerial or executive role. Accordingly, the director reasonably 
concluded that the beneficiary will be performing the day-to-day operations and directly providing the 
services of the business rather than directing such activities through subordinate employees. 
On appeal, counsel for the petitioner indicates that the beneficiary is a functional manager. However, the 
petitioner has not established that the beneficiary will be managing an essential function of the U.S. 
SRC 04 2 17 50229 
Page 8 
company. 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, 8 U.S.C. $ 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 in managing the essential functiqn, 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. 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. 593, 604 (Comm. 1988)). In this 
matter, the petitioner has not provided evidence that the beneficiary manages an essential function. 
As discussed above, the beneficiary's job description included primarily non-qualifying duties associated 
with the petitioner's day-to-day functions, and the petitioner has not identified any other employees within 
the petitioner's organization, subordinate to the beneficiary, who would relieve the beneficiary from 
performing routine duties inherent to operating the business. The fact that the beneficiary has been given 
a managerial job title and general oversight authority over the business is insufficient to elevate his 
position to that of a "function manager" as contemplated by the governing statute and regulations. 
Finally, on review, the record as presently constituted is not persuasive in demonstrating that the 
beneficiary has been or will be employed in a primarily managerial or executive capacity. The petitioner 
has not demonstrated that the U.S. company has hired additional employees who would relieve the 
beneficiary from performing primarily non-qualifying duties associated with operating a salon and retail 
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 Int 'I., 19 I&N Dec. at 604. The regulations at 8 
C.F.R. $ 214.2(1)(3)(v)(C) allows the intended United States operation one year within the date of 
approval of the petition to support an executive or managerial position. There is no provision in CIS 
regulations that allows for an extension of this one-year period. If the business is not sufficiently 
operational after one year, the petitioner is ineligible by regulation for an extension. In the instant matter, 
the petitioner has not reached the point that it can employ the beneficiary in a predominantly managerial 
or executive position. Accordingly, the appeal will be dismissed. 
Beyond the decision of the director, the petitioner has not established that a qualifying relationship exists 
with the beneficiary's overseas employer. To establish a "qualifying relationship" under the Act and the 
regulations, the petitioner must show that the beneficiary's foreign employer and the proposed U.S. 
employer is the same employer (i.e. one entity with "branch" offices), or related as a "parent and 
subsidiary" or as "affiliates." See generally section 101 (a)(15)(L) of the Act; 8 C.F.R. $ 214.2(1). 
The regulation and case law confirm that ownership and control are the factors that must be examined in 
determining whether a qualifying relationship exists between United States and foreign entities for 
purposes of this visa classification. Matter of Church Scientology International, 19 I&N Dec. 593 (BIA 
SRC 04 217 50229 
Page 9 
1988); see also Matter of Siemens Medical Systems, Inc., 19 I&N Dec. 362 (BIA 1986); Matter of 
Hughes, 18 I&N Dec. 289 (Comm. 1982). In the context of this visa petition, ownership refers to the 
direct or indirect legal right of possession of the assets of an entity with full power and authority to 
control; control means the direct or indirect legal right and authority to direct the establishment, 
management, and operations of an entity. Matter of Church Scientology International, 19 I&N Dec. at 
595. 
As general evidence of a petitioner's claimed qualifying relationship, the company's annual report, the 
stock certificates, corporate stock certificate ledger, stock certificate registry, corporate bylaws, and the 
minutes of relevant annual shareholder meetings must be examined to determine the total number of 
shares issued, the exact number issued to the shareholder, and the subsequent percentage ownership and 
its effect on corporate control. Additionally, a petitioning company must disclose all agreements relating 
to the voting of shares, the distribution of profit, the management and direction of the subsidiary, and any 
other factor affecting actual control of the entity. See Matter of Siemens Medical Systems, Inc., supra. 
Without full disclosure of all relevant documents, CIS is unable to determine the elements of ownership 
and control. 
In the instant matter, the petitioner submitted a notarized "Certificate of Corporate Relationship" from the 
claimed Assistant Secretary of the U.S. entity indicating that "The Company [U.S. entity] and Impulsora 
de Lubricantes y Aditivos, 
 company], a Mexican company, are both 
majority-owned subsidiaries of 
 The petitioner did not submit any additional 
documentation. As mentioned above, a notarized letter from an employee of the U.S. entity is not 
sufficient evidence to demonstrate that the qualifying relationship is still present between the U.S entity 
and the foreign company. For the foregoing reasons, the petitioner has not established that a qualifying 
relationship exists between the U.S. company and the beneficiary's foreign employer. 
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 (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 petitioner will be denied and the appeal dismissed for the above stated reasons, with each considered 
as an independent and alternative basis for denial. 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 appeal will be dismissed. 
ORDER: The appeal is dismissed.