dismissed L-1A Case: Communications And Security Systems

'"o~ f~:.-. _ / ' 
.... " -~- .. o '-~,.,..:-.~" 
.. ,;7~:~~ clearly U!1\'"J['·-
'PlJBIJC COp'l 
'. I .~, 
U.S. Department of Homeland Security 
U. S. Citizenship and Immigration Services 
Administrative Appeals Office (MO) 
20 Massachusetts Ave., N.W., MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
DATE: DEC 1 3 2011 OFFICE: CALIFORNIA SERVICE CENTER FILE: 
INRE: Petitioner: 
Beneficiary: 
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(15)(L) of the 
Immigration and Nationality Act, 8 U.S.C. § 1101(a)(15)(L) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
Enclosed please find the decision of the Administrative Appeals Office in your case. All of the 
documents related to this matter have been returned to the office that originally decided your case. Please 
be advised that any further inquiry that you might have concerning your case must be made to that office. 
If you believe the law was inappropriately applied by us in reaching our decision, or you have additional 
information that you wish to have considered, you may file a motion to reconsider or a motion to reopen. 
The specific requirements for filing such a request can be found at 8 C.F.R. § 103.5. All motions must be 
submitted to the office that originally decided your case by filing a Form 1-290B, Notice of Appeal or 
Motion, with a fee of$630. Please be aware that 8 C.F.R. § 103.5(a)(1)(i) requires that any motion must 
be filed within 30 days of the decision that the motion seeks to reconsider or reopen. 
Thank you, 
PerryRhew 
Chief, Administrative Appeals Office 
www.uscis.gov 
Page 2 
DISCUSSION: The Director, California Service Center, denied the petition for a nonimmigrant 
visa. The matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal 
will be dismissed. 
The petitioner, a claims that it is engaged in "trading guard and other 
protective services, wholesale~ommunication equipment." The petitioner 
states that it is a subsidiary o~ located in Korea. Accordingly, the United 
States entity petitioned United States Citizenship and Immigration Services (USCIS) to classify 
the beneficiary as a nonimmigrant intracompany transferee (L-1A) pursuant to section 
101(a)(15)(L) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1101(a)(15)(L). The 
petitioner was initially granted a one-year period of stay to open a new office. The petitioner 
now seeks to extend the beneficiary's stay in order to continue to fill the position of 
president/chief executive officer for a period of over five years. 
The director denied the petition on December 7, 2009, concluding that the record contains 
insufficient evidence to demonstrate that the beneficiary will be employed in a primarily 
executive or managerial capacity by the U.S. company. 
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 
(1)(1)(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 
himlher to perform the intended services in the United States; however, 
Page 3 
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(l)(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)(1)(ii)(G) of this section; 
(B) Evidence that the United States entity has been doing business as defined 
in paragraph (l)(1)(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 staffmg 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 issue to be addressed in this proceeding is whether the petitioner has established that the 
beneficiary will be employed in a primarily managerial or executive capacity. 
Section 101(a)(44)(A) of the Act, 8 U.S.C. § 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 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 
Page 4 
(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 10 1 (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-making; 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 October 30, 2009. The Form 1-129 indicates that the 
beneficiary will continue to be employed in the position of president/chief executive officer. On the 
Form 1-129, the petitioner claimed to have two employees. In a support letter, the petitioner 
explained that it was established to "assist [the foreign company] and its subsidiaries" on the 
following: 
(I)To buy and import security NT workstation computer systems and parts thereof 
from the U.S.; 
(2)To provide communications/internet solutions and system back-up solutions for 
the same systems in Korea; 
(3)To invest in real estate and other businesses such as golf courses and restaurants. 
~tated that it already invested in real estate and businesses by purchasin~ 
______ The petitioner provided a description of the beneficiary's duties in the United 
States as follows: 
Since his entry into the U.S. as an intracompany transferee, in 2009, [the 
beneficiary] has successfully performed in his current position of President of [the 
petitioner] and will continuously manage [the petitioner] in the United States. He 
functions as Founder and Owner of [the petitioner]. He enters and makes all 
agreements such as OEM agreements, product supply agreements, and purchase 
agreements with vendors. He entered into a real estate and business investment 
transaction on behalf of for the of 
Page 5 
In the area of human resources management, [the beneficiary] exercises authority in 
regard to investing, hiring, firing, training, delegation of assignments according to 
capabilities, preferences and technical goals, discipline, promotions, and 
remuneration. He conducts performance reviews and ensures that his staff follows 
corporate procedures. 
Functioning autonomously, [the beneficiary] is responsible for managing and 
directing all development and sales (exports and imports) activities of 
pertain to our international operations. The 
of [the petitioner] promotes standardization across our 
international affiliates using head office policies and practices as a model. This 
includes communicating the technological and development direction of [the 
petitioner] to our international offices on a regular basis. [The beneficiary] routinely 
meets with various technical specialists from the international units and with 
managing directors of [the foreign company] to ensure that our corporate philosophy 
is understood and is being delivered accurately. He represents the unique concerns 
and requirements of the intentional operations to headquarters and provides 
significant contributions in the formulation of strategic product plans to ensure that 
the business and strategic policies are effectively incorporated into our international 
business activities. 
[The beneficiary] also establishes and promotes the standardization of technical 
support and services based upon our corporate model. He meets regularly with 
various developmental units of [the foreign company] to review current policies and 
procedures and develop appropriate plans necessary to ensure consistency of 
development of practices in accordance with corporate standards. [The beneficiary] 
enhances the level of direct development expertise available in Korea and in the 
United States. He formulates strategies and plans to improve the communication 
between [the petitioner] and [the foreign company] and establishes and promotes 
standardization in the delivery of technical information and services to [the 
petitioner's] clients. 
The petitioner submitted an organizational chart of both the foreign and U.S. offices. The petitioner 
in the United States is made up of the beneficiary as president who supervises one individual in each 
department: "Trade," "Security" and "Golf Course;" who in tum supervise seven administrative 
staff. 
On November 12, 2009, the director determined that the petitioner did not submit sufficient 
evidence to process the petition and requested additional evidence to establish that the beneficiary 
will be performing the duties of a manager or executive with the U.S. company. 
In response to the director's request for evidence, the petitioner submitted a list of all current 
employees. The list has 11 employees who fill the following positions: President; Trade Team 
Manager; Security Team Manager; two Security Team Administration/Clerks; Golf Course 
Manager/Trade Team Clerk; Golf Course Clerk/Trade Team Clerk; and four Golf course 
Page 6 
Administration/Clerks. The petitioner explained that in the first year of operations, it purchased a 
Golf course and thus it employs the individuals that run the golf course. 
The petitioner also submitted the beneficiary's duties in an executive capacity in the United States 
as follows: 
1. Direct managers of the company. 
2. Establish the goals and policies of company. 
3. Exercise total and complete discretion in decision-making as the owner and sole 
investor. 
4. [The beneficiary] has no one above him in [the petitioner]. 
5. The decision to expand international transactions. 
6. The decision to more investment in the United States. 
7. Choosing and hiring all employees. 
8. Developing new business relationships with American vendors for the Trade with 
[the foreign company] in Seoul, Korea. 
9. Entering into transaction agreements with vendors. 
10. Managing the Golf Course and its clubhouse including a restaurant. 
The petitioner also stated the percentage of time spend on each duty as follows: 
1. 40% in working with the international trading manager, to develop 
the trading business items. 
2. 20% in marketing searching of the Security System products for international trade 
business. 
3. 5% in oversight of the Golf Course (a turnkey operation with established 
management and staff). 
4. 30% Research and planning for development of [the petitioner] (including 
development of new relationships and contracts with vendors). 
5. 5% Miscellaneous business - related activities. 
On appeal, counsel for the petitioner provides the following information about the duties to be 
performed by the beneficiary: 
As President and Owner of [the petitioner], [the beneficiary] makes all decisions in 
regards to the management of the company. [The petitioner] employs eleven 
individuals and as President [the beneficiary] oversees the duties of all employees 
and implements all company policies. The management team at [the petitioner] then 
ensures that all other employees follow the company policies and work to meet 
company goals. Included with this motion to appeal is a list of all employees and an 
organizational chart . by [ the beneficiary]. [The be~ees 
and· the international trading manager_ the 
security manager, and the golf course manager. [The beneficiary] 
supervises and oversees all aspects of the marketing of security systems products for 
the international trade business of [the petitioner], specifically directing _ 
Page 7 
is the manager in charge of the day to of the 
security systems department but [the beneficiary] n"'~r"'~"" 
beneficiary] also oversees and manages all operations 
associated clubhouse. The golf course manager, the day to 
day operations of the golf course and the golf course staff but [the beneficiary] 
oversees the entire operation and directs_ as he carries out his duties. 
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. § 214.2(l)(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 
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). 
Based on the current record, the AAO is unable to determine whether the claimed managerial 
duties constitute the majority of the beneficiary'S duties, or whether the beneficiary primarily 
performs non-managerial administrative or operational duties. 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. at 604. 
The beneficiary'S proposed job description is vague, stating that the beneficiary "makes all 
decisions in regards to the management ofthe company executive decision making;" "oversees the 
duties of all employees and implements all company policies;" "develop the trading business 
items;" and, "establishes and promotes the standardization of technical support and services based 
upon our corporate model." 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. Sava, 724 F. Supp. 1103, 1108 
(E.D.N.Y. 1989), affd, 905 F.2d 41 (2d. Cir. 1990). 
The petitioner stated that the beneficiary will spend 40 percent of his time "working with the 
international trading manager, to develop the trading business items." The 
petitioner did not, however, provide any information regarding what the trading business entails. 
The petitioner stated that the beneficiary is responsible for "managing and directing all development 
and sales (exports and imports) activities of [the petitioner] as they pertain to our international 
Page 8 
operations" but never explained what products the petitioner imports or exports and how that part of 
the company functions. Without further information about the trading department, it is impossible 
to determine that the 40 percent of the beneficiary's time in this department is in a managerial or 
executive capacity. 
In addition, the petitioner stated that 30 percent of the beneficiary's time will be "research and 
planning for development of [the petitioner] (including development of new relationships and 
contracts with vendors)." Since the petitioner does not have a marketing or sales department, it 
appears that the beneficiary will be responsible for all of the business development and marketing. 
Again, based on the current record, the AAO is unable to determine whether the claimed 
managerial duties constitute the majority of the beneficiary's duties, or whether the beneficiary 
primarily performs non-managerial administrative or operational duties. The petitioner's 
description of the beneficiary's job duties does not establish what proportion of the beneficiary's 
duties is managerial in nature, and what proportion is actually non-managerial. See Republic of 
Transkei v. INS, 923 F.2d 175, 177 (D.C. Cir. 1991). 
If the beneficiary is in fact researching the distributors and vendors, and negotiating the 
contracts, or simply ordering inventory from suppliers, these duties have not been shown to be 
managerial or executive in nature. Going on record without supporting documentary evidence is 
not sufficient for purposes of meeting the burden of proof in these proceedings. Matter of 
Sofjici, 22 I&N Dec. 158, 165 (Comm. 1998) (citing Matter of Treasure Craft of California, 14 
I&N Dec. 190 (Reg. Comm. 1972)). 
The job description submitted by the petitioner provides little insight into the true nature of the 
tasks the beneficiary will perform or how his time will be divided among managerial and non­
managerial duties. 
On appeal, counsel asserts that the position offered to the beneficiary is 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, 8 U.S.C. § 1101(a)(44)(B). 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 managerial 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-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." !d. A managerial or executive 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. See Matter of Church Scientology International, 19 I&N Dec. 593, 
604 (Comm. 1988). As the petitioner provided a very vague description of the duties to be 
performed by all of the employees supervised by the beneficiary, it is impossible to determine if 
Page 9 
the U.S. company has established a complex organizational structure which would elevate the 
beneficiary beyond a first-line supervisor. The petitioner has not established that the beneficiary 
is serving in an executive capacity with the U.S. entity. 
As discussed above, the beneficiary's job description was not sufficient to establish that he would 
be employed in a primarily managerial or executive capacity, and the petitioner has not provided 
sufficient information regarding the duties to be performed by the employees within the 
petitioner's organization subordinate to the beneficiary. Thus, it is impossible to determine 
whether the employees 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 an 
executive or manager as contemplated by the governing statute and regulations. 
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. § 1361. Here, that burden has not 
been met. Accordingly, the appeal will be dismissed. 
ORDER: The appeal is dismissed.