dismissed L-1A Case: Business

U.S. Department of Homeland Security 
20 Mass 4vc. N W . Rm A.3042 
Wash~ngtol~. DC 20520 
data delekd to 
prevent dearly onwm 
ia~oIped~marY 
Citizenship 
and Immigration 
Ftle: WAC 03 246 52680 Office: CALIFORNIA SERVICE CENTER Date: NOV 2 8 zw 
IN RE: Petitloner: 
Beneficiary: 
Petlt~on: Petltlon for a Nonlmmlgrant Worker Pursuant to Sect~on 101(a)(15)(L) of the Imm~grat~on 
and Nationality Act. 8 1J.S.C. 5 1101(a)(15)(L) 
IN BEHALF OF PETITIONER: 
INSTRUCTIONS: ' 
This is the decis~on of the Admln~strat~ve Appeals Office In your case. All documents have been returned to 
the office that or~glnally declded your case Any further inqulry must be made to that office. 
WAC 03 246 52680 
Page 2 
DISCUSSION: The Director, Cal~fom~a Serv~ce Center, denled the petlt~on for a non~mmlgrant vlsa The 
matter 1s now before the Administrative Appeals Office (AAO) on appeal. The AAO w~ll dismiss the appeal. 
The pet~tloner filed th~s non~mm~grant petltlon seek~ng to extend the employment of ~ts president and chlef 
executive officer as an L-1A non~mm~grant intracompany transferee pursuant to sectlon 101(a)(15)(L) of the 
Imm~grat~on and Nat~onality Act (the Act), 8 U S C, g; 1 lOl(a)(lS)(L) The petltloner 1s a corporation 
organized In the State of Callforn~a that 1s en 
petitioner claims that it 1s thc subs~dlary of 
Shangha~, Chlna. The benefic~ary was initla 
United States and the petitioner now seeks to extend the beneficiary's stay. 
The dlrector denled the pet~tion conclud~ng that the petltloner d~d not establlsh that the beneficlary w~ll be 
employed in the Un~ted States in a primarily managerla1 or executive capaclty. 
The petitloner subsequently filed an appeal, The dlrector declined to treat the appeal as a nlot~on and 
forwarded the appeal to the AAO for revlew On appeal, counsel for the petitloner d~sputes the director's 
findlngs and asserts that as the beneficlary supervises managerial employees and as substantially all of his 
duties are managerlal and executlve In nature, he 1s qual~fied for an extension of status. In support of these 
assertions, counsel submlts a bnef and addit~onal ev~dence. 
To establlsh eligibllrty for the L-l nonimmigrant vlsa class~ficat~on. the petitloner must meet the crlterla 
outlined In section 101(a)(15)(L) of the Act. Spec~fically, a qualifying organlzatlon must have employed the 
benefic~ary In a qual~fylng managerlal or executlve capaclty, or In a spec~al~zed knowledge capaclty. for one 
contlnuous year w~thln three years preceding the benefic~ary's appl~cat~on for admlsslon Into the IJnlted 
States. In add~t~on, the beneficlary must seek to enter the Unlted States temporarily to cont~nue rendering h~s 
or her servlces to the same employer or a subs~dlary or affil~ate thereof In a managerial, executive, or 
special~zed knowledge capaclty. 
The regulat~on at 8 C.F.R. 9 214.2(1)(3) states that an individual pet~tlon filed on Form 1-129 shall be 
accompanied by: 
(1) Ev~dence that the petlt~oner and the organization whlch employed or will employ the 
allen are quallfy~ng organlzat~ons as defined rn paragraph (1)(1)(11)(G) of th~s section 
(11) Evldence that the allen will be employed In an executlve, managerla], or speclal~zed 
knowledge capaclty, mclud~ng a detalled descrlptlon of the servlces to be performed 
(111) Ev~dence that the allen has at least one contlnuous year of full tlme employment 
abroad w~th a quahfy~ng organlzat~on w~thin the three years preced~ng the fillng of 
the petltlon. 
(iv) Evidence that the alien's prior year of employment abroad was in a position'that was 
managerial, executive or involved specialized kn~wledge~ and that the alien's prior 
WAC 03 246 52680 
Page 3 
education, traming. and employment qual~fies himher to perform the Intended 
services in the United States; however, the work In the Unlted States need not be the 
same work which the alien performed abroad. 
The regulation at 8 C.F.R. 5 214 2(1)(14)(11) also prov~des that a visa pet~tlon, whlch lnvdlved the openlng of a 
new office, may be extended by fillng a new Form 1-129, accompanied by the following: 
(A) Evldence that the Un~ted States and fore~gn ent~t~es are still quallfylng organjzat~ons 
as defined ~n paragraph (1)(1)(11)(G) of this sectlon; 
(B) Ev~dence that the Un~ted States entity has been doing business as defined in 
paragraph (1)(1)(11)(H) of th~s sectlon for the prev~ous year; 
(C) A statement of the duties performed by the benefic~ary for the previous year and the 
dut~es the beneficlary w~ll perform under the extended petition; 
(D) A statement descr~blng the staffing of the new operation, mcludlng the number of 
employees and types of positions held accompanted by evidence of wages paid to 
employees when the beneficlary wlll be employed In a managerlal or executive 
capacity; and 
(E) Evidence of the financial status of the United States operation. 
The Issue In the present matter 1s whether the bencfic~ary w~ll be employed by the Un~ted States elntity in a 
pr~rnarily managerla1 or execut~ve capac~ty. 
Sect~on IOl(a)(44)(A) of the Act, 8 U.S.C. 8 1101(a)(44)(A), defines the term "managenal capac~ty" as an 
assignment within an organization in which the employee primarily: 
(1) manages the organization, or a department, subdlvis~on, funct~on, or component of 
the organization; 
(11) supervises and controls the work of other supervisory, profess~onal, or managerla1 
employees, or manages an essential functton within the organlzatlon, or a department 
or subdivlslon of the organlzat~on, 
(111) ~f another employee or other employees are dlrectly supervised, has the authority to 
hire and fire or recommend those as well as other personnel act~ons (such as 
promot~on and leave author~zatlon), or ~f no other employee 1s directly supervised, 
funct~ons at a senlor level wlth~n the organizat~onal h~erarchy or with respect to the 
funct~on managed; and 
WAC 03 246 52680 
Page 4 
(IV) exercrses discret~on over the day to day operations of the actlvity or functlon for 
which the employee has authonty. A first llne supervisor IS not considered to be 
actlng In a managerial capacity merely by vlltue of the supervisor's supervisory , 
duties unless the employees superv~sed arc profess~onal. 
Sectlon 101(a)(44)(B) of the Act, 8 U S.C S; 1101(a)(44)(B), defines the term "executive capacity" as an 
assignment wlthln an organ~zatlon In whlch the employee pnmarily: 
(i) directs the management of the organization or a major component or function of the 
organkation; 
(ii) establishes the goals and policies of the organization, component, or function; 
(111) exercises wlde lat~tude rn dlscretlonary decis~on maklng; and 
(IV) recelves only general supervision or direction from h~gher level executives, the board 
of d~rectors, or stockholders of the organrzation. 
In the initial petition, the petitioner described the beneficiary's job duties as follows in a letter dated August 
20,2003: 
[PJlan and develop organization policics and implement goals through administrative 
personnel; coordinate activities of department to effect operational efficiency and economy; 
allocate operating budget, analyze department budget requests to identify areas in which 
reduction can be made; confer with administrative personnel, review activity, operation and 
sales reports to determine changes in operations required; direct preparation of directives to 
departmental administrators outlining pol~cies, programs, or operation improvements; and 
hire, fire and train managerial employees of the Petitioner. 
The petitloner also submitted an organizational chart showlng that the beneficiary supervises two employees, 
one who 1s responsible for the sales department, and another who is responsible for both customer service and 
documentation. The chart also depicts the beneficiary as respons~blc for the company's admin~strat~on and 
accounting department. 
On September 9, 2003, the director requested additional evidence to establish that the beneficiary has been or 
w~ll be performing the duties of a manager or executive with the U.S. company. Specifically, the dtrector 
requested: (1) the total number of employees in the U.S. company; (2) a copy of the U.S. company's 
organizational chart listing all employees by name and job title and lncludlng a bnef descript~on ofjob duties, 
educational level and annual salar~es and wages for all employees under the benefic~ary's supervision; (3) 
Form 941, Quarterly Wage Reports for the last four quarters; (4) payroll summary, W-2s and W-3s 
evldenclng wages pa~d to employees In 2002; (5) the petlt~oner's California Employment Development 
Department (EDD) Form DE-6, Quarterly Wage Reports for the last four quarters. 
WAC 03 246 52680 
Page 5 
In response, the pet~tioner stated that it has three employees and subm~tted the requested federal and state 
wage reports for the first three quarters in 2003. notlng that the company did not h~re any employees until 
January 2003. The petrtioner also provided a new organizat~onal chart depictlng the same organlzat~onal 
structure cons~sting of the beneficlary as both presldentfCE0 and manager of the administrat~on and 
accountlng department, a sales manager, and a department manager responsible for both documentat~on and 
customer servlce Also Included were job descriptions for the benefi c~ary and the department managers The 
benefic~ary's job description as president/CEO was identical to the descnptlon previously provided, and the 
following descnptlon was provided for hls concurrent role as administration and accountlng department 
manager: 
[cloordrnate activities of departments to effect operational efficiency and economy; dlrect 
preparation of dlrectlves to departmental administrator outlining policy, program or 
operations changes to be implemented; coordinate all employees In the~r working schedules; 
approach landlord to slgn office lease and deal with related matters; approach accountlng 
firm/CPA to arrange employees' salary, tax deduct~on and employer's tax payment; approach 
custom[s] when there are any problems In custom[s] declare, such as discrepancy In 
merchandise name, qual~ty and quant~ty; approach, and negotiate with banks when there are 
any problems In payment collection. 
On October 11, 2003, the director denied the petition concluding that the beneficiary's duties are not 
pr~rnarlly managerla1 or executlve. In his declslon, the director emphas~zed the non-profess~onal duties 
performed by the beneficiary's two subord~nates, and the lack of subord~nate staff in the accountlng and 
adm~n~strative department who could relieve the beneficiary from perform~ng non-qualifying dut~es related to 
these funct~ons. The d~rector therefore concluded that the U S entity lacks the organizational complexity to 
support an executive position. 
On appeal, counsel for the petitloner asserts that the d~rector erred in focus~ng on whether the benefic~ary's 
subordlnates are professionals and contends that hls two subord~nates are in fact perfonn~ng managerial 
dut~es, therefore mak~ng the beneficiary more than a first-line supervisor In support of thls assertion, counsel 
submits a new organizat~onal chart depictlng five sales representatives report~ng to the sales manager, and two 
to three proposed adminlstrati\e assistant poslt~ons reporting to the customer service manager Counsel 
explains that the sales persons are independent contractors and therefore were not Included in the inltial 
organizational chart. The petitioner submits copies of four checks allegedly paid to the sales representatives as 
commlsslon In June, August and September 2003. Counsel also notes that the beneficlary, In his role as 
admlntstration and accounting manager, directs an outs~de accountant who handles all of the company's 
financ~al and bookkeeping duties. Flnally, counsel notes rhat the beneficiary Intends to transfer admmistrat~ve 
and financial management duties to another managerial employee in the near future, and states that "lt would 
be unreasonable for the Service to forcibly impose a cut-off date to relinquish such dutles at the exact one- 
year anniversary for the beneficlary to renew h~s status." 
Upon revlew of the record, counsel's assertions are not persuasive. When examining the executlve or 
managerial capacity of the benefictary, the AAO will look first to the petitioner's description of the job dut~es. 
See 8 C.F.R. 5 214 2(1)(3)(11). The petitloner's descnptlon of the job dutles must clearly descrlbe the dunes to 
WAC 03 246 52680 
Page 6 
be performed by the beneficlary and mdicate whether such dutles are either in an executlve or managerlal 
capacity. Id. In this case, the petitioner states that the beneficlary 1s servlng In both cxecutlve and manager~al 
capacltles and therefore must meet the requirements Imposed by both statutory definltlons 
Rather than providing a specific description of the beneficiary's duties as presidentiCE0, the petitioner 
provides only a brief, vague description that fails to demonstrate what the beneficiary does on a day-to-day 
basis. For example, the petitioner states that the beneficiary's will "plan and develop organization policies and 
implement goals" and "direct preparation of directives to departmental administrators outlining' policies, 
programs, or .operation improvements." The petitioner did not, however, define the beneficiary's goals, 
policies or directives. Going on record without supporting documentary evidence is not sufficient for 
purposes of meeting the burden of proof in these proceedings. Mutter of Soflc!i. 22 I&N Dec. 158, 165 
(Comm. 1998) (citing Matter of Treasure Crujt ofCalifornia, 14 I&N Dec. 90 (~eg'. Comm. 1972)). Specitics 
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 matterof reiterating the regulations. Frdin Bros. 
Co. Ltd, v. Suva, 724 F. Supp. 1 103 (E.D.N.Y. 1989), afri, 905 F.2d 41 (2d. Cir. 1990). 
Whether the benefic~ary IS a managerial or executive employee turns on whether the petitioner has susta~ned 
~ts burden of prov~ding that hls duties are "primanly" managerlal or executlve. See sectlons 101(a)(44)(A) and 
(B) of the Act. Based on the current record, the AAO is unable to deterrnlne whether the claimed manager~al 
dut~es constitute the majonty of the benefic~ary's dutles, or whether the beneficlary prlmarlly performs non- 
managerial admlnlstratlve or operational dutles. The petitloner's descr~ption of the beneficiary's dutles does 
not establish what proport~on of the beneficiary's dut~es IS manager~al in nature, and what proportion IS 
actually non-managerla]. See Republic of Transket v INS, 923 F 2d. 175, 177 (D C Cir. 1991). This failure 
of documentatlon IS Important because the job descnptton for the beneficiary's concurrent role as manager of 
the pet~tloner's adrnln~stratlve and accounting department reveals that he wlll be perfohlng varlous tasks, 
such as coordinating work schedules, prepanng documentatlon for an outs~de accountant, resolving customs 
Issues, and ensunng collect~on of payments, which do not fall dlrectly under traditional manager~al dutles as 
defined In the statute. For th~s reason, the AAO cannot determine whether the beneficiary IS primarily 
performing the dut~es of a manager or executlve. See IKEA US, Inc. v US Depf ofhcstrce, 48 F Supp. 2d 
22.24 (D D C 1999). 
Although the petitloner asserts that the benefic~ary is managing a subordlnate staff, the record does not 
establish that the subordlnate staff IS composed of supervisory, professional or managerlal employees See 
sectlon lOl(a)(44)(11) of the Act. In hls declslon, the director determined that because the beneficlary IS 
prlmarlly supervising a staff of non-professional employees, the beneficlary cannot be deemed to be actrng In 
a managerlal capac~ty. Counsel IS correct m his statement that the benefic~ary need not supervise professionals 
~n order to qual~fy as a manager. However, contrary to counsel's contention on appeal, the petltloner has not 
estabhshed that the benefic~ary's subordlnates are managers or supervisors. 
On appeal, counsel asserts that the benefic~ary's subordlnates are In fact managers and claims that the sales 
manager has been supervlslng a staff of five sales representatives who were not previously named because 
they are independent contractors. The petitloner submlts a new organlzat~onal chart on appeal that lists five 
additional employees. However, the AAO does not accept counsel's explanation wlth respect to the earller 
WAC 03 246 52680 
Page 7 
omission of these employees from the petitioner's descript~on of ~ts staffing levels In his request for 
evldence, the dlrector asked the petitloner to provide a detailed organizational chart and to fully descnbe the 
dutles of each employee The job description submitted by the petrtioner, which is quoted In full In the 
d~rector's decision, revealed that the sales manager was actively involved in performing the sales funct~on and 
llsted no duties related to select~on or superv~s~on of a subordinate staff of sales representatives. In addit~on. 
the organizational chart submitted in response to the request for ev~dence showed no staff reporting to the 
sales manager. Where, as here, a pehtloner has been put on notlce of a deficiency in the evidence and has 
been glven an opportunity to respond to that deficiency, the AAO will not accept evidence offered for the first 
t~me on appeal See Matter- of Sorzano, 19 I&N Dec. 764 (BIA 1988). see also Matter of Obatghena,, 19 I&N 
Dec. 533 (BIA 1988). If the petitloner had wanted the submitted evldence to be cons~dered, it should have 
submitted the documents In response to the director's request for ev~dence. Id. Under the clrcumstances, the 
AAO need not and does not conslder the sufficiency of the evidence submitted on appeal For the same 
reason, the AAO will not consider counsel's assertion on appeal that the beneficiary, in hls role as accounting 
and administration manager, supervises a professlonal accountant. 
A review of the job descriptions provided for the sales manager and customer service manager reveals that 
these employees were actively lnvolved In performing the sales and customer services fuilct~ons. rather than 
supervlslng a staff of subordinates who actually perform the day-to-day tasks associated w~th the function. 
The AAO is not persuaded that these employees are performing duties whlch are profcss~onal, supervisory, or 
managerial, regardless of counsel's attempt to create a subordinate staff for these employees on appeal, and 
therefore cannot find that the benefic~ary manages a subordinate staff of managerial, supervisory or 
professlonal employees 
The AAO recognizes counsel's statement on appeal that the petttioner Intends to hire add~tlonal staff who will 
report to the customer servlce manager, and that the beneficiary Intends to transfer hls financial and 
admln~stratlve duties to another employee m the future. However, the petitioner must establ~sh eligibility at 
the time of fil~ng the nonirnmigrant visa petltlon. A visa petltlon may not be approved at a future date after the 
petltloner or beneficiary becomes ehgible under a new set of facts. Mailer of Mzcheliri 7'1l-e Corp , 17 I&N 
Dec. 248 (Reg. Comm 1978). 
Counsel for the petitioner notes on appeal that it is "myopic at best and arbitrary at worst" for Citizenship and 
Immigration Services (CIS) to "force a running business to become a full-fledged operation at exactly the one 
year anniversary' of the beneficiary's stay in the United States as an executive." However, 8 C.F.R: $ 
214.2(1)(3)(~)(~) 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 anextension of this one-year period. As discussed above, the record does not establish that at the time the 
petition was filed a majority of the beneficiary's duties consisted primarily of directing the management of the 
organization or supervising a subordinate staff of professional, managerial or supervisory personnel.'Nor has 
the petitioner demonstrated that at the time the petition was filed it had reached a level of organizational 
complexity wherein the hir~ngJfiring of personnel, discretionary decision-making, and setting company goals 
and policies constituted significant components of the duties performed by the beneficiary. Therefore, in the 
instant matter, the petitioner has not reached the point that it can employ the beneficiary in a predominantly 
managerial or executive position. For this reason, the petition cannot be approved. 
WAC 03 246 52680 
Page 8 
In visa petition proceedings, the burden of proving eligib~lity for the benefit sought remains entirely with the 
petitioner. Section 291 of the Act, 8 U.S.C. 5 1361. Here, that burden has not been met. ~ccordin~l~, the 
director's decision will be affirmed and the petition will be denied. 
ORDER: The appeal is dismissed.