dismissed L-1A Case: Computer Accessories

U.S. Department of Romelnnd Security 
20 Massachusetts Ave., N.W.. Rm. A3042 
Washington. DC 20529 
U. S. Citizenship 
and Immigration 
FILE: WAC 03 257 51286 Office: CALIFORNIA SERVICE CENTER Date: ; 1 iLj[j5 
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(15)(L) of the Immigration 
and Nationality Act, 8 U.S.C. § 1 101 (a)(] 5)(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. 
Administrative Appeals Office 
b 
WAC 03 257 5 1286 
Page 2 
DISCUSSION: The nonimmigrant visa petition was denied by the Director, California Service Center. The 
matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. 
According to the documentary evidence contained in the record, the petitioner was established in 2000 and 
claims to be a computer accessories business. The petitioner claims to be a subsidiary of Shanghai Pengo 
Computer Accessories Co., Ltd., located in China. The petitioner seeks to extend its authorization to employ 
the beneficiary temporarily in the United States as a general manager for three years, at an annual salary of 
$32,400.00. The director determined that the petitioner had failed to submit sufficient evidence to establish 
that the beneficiary would be employed by the U.S. entity in a primarily managerial or executive capacity. 
The beneficiary was initially granted a one-year period of stay in L-1A classification in the United States and 
the petitioner now seeks to extend the beneficiary's stay. 
On appeal, counsel argues that the beneficiary is a function manager. 
To establish L-I eligibility under section lOl(a)(lS)(L) of the Immigration and Nationality Act (the Act), 
8 U.S.C. 4 1101(a)(15)(L), the petitioner must demonstrate that the beneficiary, within three years preceding 
the beneficiary's application for admission into the United States, has been employed abroad in a qualifying 
managerial or executive capacity, or in a capacity involving specialized knowledge, for one continuous year 
by a qualifying organization, and seeks to enter the United States temporarily in order to continue to render 
his or her services to the same employer or a subsidiary or affiliate thereof, in a capacity that is managerial, 
executive, or involves specialized knowledge. 
The regulation at 8 C.F.R. 4 214.2(1)(l)(ii) states, in part: 
lntracornpany transferee means an alien who, within three years preceding the time of his or 
her application for admission into the United States, has been employed abroad continuously 
for one year by a firm or corporation or other legal entity or parent, branch, affiliate, or 
subsidiary thereof, and who seeks to enter the United States temporarily in order to render his 
or her services to a branch of the same employer or a parent, affiliate, or subsidiary thereof in 
a capacity that is managerial, executive, or involves specialized knowledge. 
The regulation at 8 C.F.R. 4 214.2(1)(3) states that an individual petition filed on Form 1-129 shall be 
accompanied by: 
(i) Evidence that the petitioner and the organization which employed or will employ the 
alien are qualifying organizations as defined in paragraph (l)(l)(ii)(G) of this section. 
(ii) Evidence that the alien will be employed in an executive, managerial, or specialized 
knowledge capacity, including a detailed description of the services to be performed. 
(iii) Evidence that the alien has at least one continuous year of full-time employment 
abroad with a qualifying organization with the three years preceding the filing of the 
petition. 
(iv) Evidence that the alien's prior year of employment abroad was in a position that was 
managerial, executive or involved specialized howledge and that the alien's prior 
education, training, and employment qualifies hirn/her to perform the intended serves 
WAC 03 257 5 1286 
Page 3 
in the United States; however, the work in the United States need not be the same 
work which the alien performed abroad. 
Section 101 (a)(44)(A) of the Act, 8 U.S.C. 3 1 10 l(aj(44)(Aj, provides: 
The term "managerial capacity" means an assignment within an organization in which the 
employee primarily- 
(1) Manages the organization, or a department, subdivision, function, or 
component of the organization; 
(i i) 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 
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)(M)(B) of the Act, 8 U.S.C. ij 1 101(a)(44)(B), provides: 
The term "executive capacity" means an assignment within an organization in which the 
employee primarily- 
(1) Directs the management of the organization or a major component or 
function of the organization; 
(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. 
Section 10 l(a)(44)(Cj of the Act, 8 U.S.C. 5 1 10 1 (a)(44)(C), provides: 
If staffing levels are used as a factor in determining whether an individual is acting in a 
managerial or executive capacity, the Attorney General shall take into account the reasonable 
WAC 03 257 5 1286 
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needs of the organization component, or fhction in light of the overall purpose and stage of 
development of the organization, component, or function. An individual shall not be considered 
to be acting in a managerial or executive capacity (as previously defined) merely on the basis of 
the number of employees that the individual supervises or has supervised or directs or has 
directed. 
The petitioner initially described the beneficiary's proposed job duties as: "Alien will continue to manage the 
U.S. subsidiary. He will be responsible for making personnel decisions and managing logistics and marketing 
of new flash memory and mini-CD products." 
In a letter of support, dated September I 1,2003, counsel described the beneficiary's job duties as: 
1) Marketing strategy planning; 
2) Office management, including setting operating policy and making personnel decisions; 
3) Recruitment of new workers; 
4) Interfacing with the China parent company and affiliate companies; 
5) Attending exhibitions and seeking new distribution channels; [and] 
6) Logistics planning. 
In a letter of support, dated September 5, 2003, the petitioner described the breakdown in the percentage of 
time the beneficiary would spend performing his job duties to include: 
1) Spend 35% of his time on marketing strategy planning. 
2) Spend 25% of his time on office management. 
3) Spend 10% of his time on recruitment of new sales engineers. 
4) Spend 10% of his time on conferencing and interacting with the China parent company 
and affiliated companies. 
5) Spend 10% of his time on exhibitions and seeking new distribution channels. 
6) Spend 10% of his time in logistics planning. 
As evidence, the petitioner submitted copies of its Form DE-6, Quarterly wage report for the quarter ending 
March 3 1, 2003, which showed five employees employed by the organization. The petitioner also submitted 
a copy of its organizational chart. The chart depicted the beneficiary as general manager, Lihua Chen as 
logistics specialist, Michael Huang as sales engineer, Su C Huang as sales engineer, and Pae K Tu as 
application engineer, all under the beneficiary's direction. The chart also showed a contract engineering 
research and development division. 
In response to the director's request for evidence on the subject, counsel described the beneficiary's and his 
subordinate's duties as: 
1) (L- 1 Status, extension pending) 
Position: General Manager 
Education: College Degree 
Job Duties: [The beneficiary] is responsible for the overall management of [the U.S. 
entity]. He is in charge of the following: setting pricing terms to compIiment marketing 
efforts, office management, training workers . . . hold company meetings, review 
financial documents, improve employee relations, hire new workers, negotiate contracts 
WAC 03 257 51286 
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... interact with China parent company, attend industry exhibitions relating to high 
technology computer products, and plan logistics, etc. 
2) (Lawful permanent resident) 
Position: Sales Engineer 
Education: University Degree 
Job duties: Responsible for sales of computer media products . . . and flash memory 
cards. Manage contract sales representatives.. . . Perform customer service duties.. .. 
Attend trade shows.. . . Train sales agents. Negotiate sales contracts 
3) (u.s. citizen) 
Position: SalesIPresident 
Education: University Degree 
Job duties: Presently, Ms. is responsible for developing marketing strategies for 
[the U.S. entity] products. Her work includes developing advertisements for the 
Internet, trade magazines, research market conditions, etc. She works cIosely with 
independent advertising specialists and market research analysts to access market 
conditions and forecast market risks. Ms. coordinates her marketing activities 
with guidance from the general manager. 
4) (Logistics/accounting) (Adjustment applicant through marriage with U.S. 
citizen, case unrelated to 01 Media, Inc.) 
Position: Logistics/Accountant 
Education: University Degree 
Job duties: Ms. is responsible for maintaining financial records. Her duties 
include analyzing financial data for inconsistencies, auditing assets, draft financial 
reports for review by the general manager, prepare tax documents, coordinate logistics, 
and manage contract warehouse workers. 
The petitioner submitted a revised organizational chart which depicted as company 
president, the beneficiary as general manager,as logistics specialist, and as sales 
engineer. The chart also listed a vacant marketing manager and application engneer's position. The chart 
showed contract warehouse workers under the direction of the logistics specialist, and contract sales 
representatives under the direction of the sales engineer. The chart also showed the contract engineering 
research and development division under the beneficiary's direction. The petitioner submitted a copy of its 
Form DE-6, Quarterly Wage Report for the quarter ending June 30, 2003, which showed the company 
empIoyed four employees. 
The director noted that the petitioner employed four individuals, including the beneficiary. The director 
further noted that the beneficiary's subordinate's salary, according to the DE-6, was at minimum wage or the 
equivalent to part-time salaries, not that paid for executives andor managers in the field. The director also 
noted that neither the sales engineer nor the logistic speciaIist supervised other company employees and that 
their duties performed were not at a professional level. The director stated that it was clear from the evidence 
that the beneficiary does not supervise managers as defined or employees whose duties were professional in 
nature. 
WAC 03 257 51286 
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On appeal, counsel argues that the petitioner is not seeking to qualify the beneficiary as a first-line supervisor, 
but rather as a "functional manager." Counsel further argues that the beneficiary qualifies as a functional 
manager in that he plans, organizes, and controls the marketing and distnbution function, and in so doing is 
not required to supervise professional employees. Counsel cites unpublished AAO decisions to substantiate 
his claim. Counsel submits an activities flowchart depicting the beneficiary's duties as general manager. 
Counsel contends that the organization employs six full-time workers, including three sales engineers, and 
therefore, the beneficiary does not directly perform the functions that he manages. 
Counsel argues that the beneficiary has full budgetary authority over the U.S. subsidiary; has full authority to 
negotiate contracts on behalf of the U.S. subsidiary; is working at a senior level in the organization in relation 
to the function; makes strategic decisions that affect the business and workers, reviews products 
testlperformance reports related to marketing of computer peripheral products, and will exercise full 
discretion in managing the day-to-day operations. Counsel further argues that the beneficiary supervises the 
sales engineers who are professionals. Counsel also argues that the director's reasoning is flawed in that it 
fails to distinguish between "sales of high-technology products and basic items such as groceries." Counsel 
quotes from the Department of Labor's (DOL) Occupational Outlook Handbook (OOH) and the Dictionary of 
Occupational Titles (DOT) to demonstrate that the entity's sales engineer's duties are complex and require the 
application of a highly specialized body of knowledge (computer electronics). Counsel contends that in 
addition to managing the in-house sales engineers, the beneficiary also manages independent sales engineers 
who work on a commission basis and who possess a university level science background. 
Counsel's argument is not persuasive. Although the beneficiary is not required to supervise personnel, if it is 
claimed that hisher duties involve supervising employees, the petitioner must establish that the subordinate 
employees are supervisory, professional, or managerial. See 5 101(a)(44)(A)(ii) of the Act. Further, In 
evaluating whether the beneficiary manages 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. 5 f lOl(a)(32), states that "[tlhe termprofession 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. Mutter of Sea, 19 I&N Dec. 817 (Comm. 1988); Mutter of Ling, 13 I&N Dec. 35 (R.C. 1968); 
Matter ofshin, 11 I&N Dec. 686 (D.D. 1966). 
Therefore, the AAO must focus on the level of education required by the position, rather than the degree held 
by a subordinate employee. The possession of a bachelor's degree by a subordinate employee does not 
automatically lead to the conclusion that an employee is employed in a professional capacity as that term is 
defined above. There has been insufficient evidence submitted to substantiate the petitioner's claim that the 
beneficiary's subordinates possess college and university degrees. In addition, there has been no evidence 
submitted to show that the duties to be performed by the subordinates require an advanced degree. 
Further, the petitioner has not shown that the Department of Labor's description of a sales engineer in the 
OOH or DOT or sales manager in the DOT has any bearing on this proceeding. The petitioner has not shown 
that the Department of Labor reserves the title of sales engineer and sales manager to those working in a 
managerial capacity as defined at section 101(c)(44)(A) of the Act. Although commonality in job duty 
descriptions may be noted, the petitioner must establish on a case-by-case basis the beneficiary's 
qualifications. 
WAC 03 257 51286 
Page 7 
Counsel refers to an unpublished decision in which the AAO determined that the beneficiary met the 
requirements of serving in a managerial and executive capacity for L-1 classification even though he was the 
sole employee. Counsel has furnished no evidence to establish that the facts of the instant petition are 
analogous to those in the unpublished decision. Going on record without supporting documentary evidence is 
not sufficient for purposes of meeting the burden of proof in these proceedings. See Mutter of Treasure Craj 
of Calqornin, 14 I&N Dec. 190 (Reg. Comm. 1972). Furthermore, while 8 C.F.R. 8 103.3(c) provides that 
AAO precedent decisions are binding on all CIS employees in the administration of the Act, unpublished 
decisions are not similarly binding. 
Whether the beneficiary is an "activity" or "function" manager turns in part on whether the petitioner has 
sustained its burden of proving that his duties are "primarily" managerial. Here, the petitioner fails to 
document what proportion of the beneficiary's duties would be managerial functions and what proportion 
would be non-managerial. The petitioner lists the beneficiary's duties as managerial, but fails to quantify the 
time the beneficiary spends on them. This failure of documentation is important because several of the 
beneficiary's daily tasks, such as review financial documents, improve employee relations, negotiate 
contracts, and attend industry exhibitions do not fall directly under traditional managerial duties as defined in 
the statute. For this reason, the AAO cannot determine whether the beneficiary is primarily performing the 
duties of a function manager. See IKEA US, Inc. v. US. Drpt. of Justice, 48 F. Supp. 2d 22, 24 (D.D.C. 
1999). 
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 lOl(a)(44)(A)(ii) of the Act, 8 U.S.C. Ij 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, 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. 
8 C.F.R. 4 214.2(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 dut~es 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)). 
To allow the broad application of the term "essential function" to include any minor or low-level function 
within a business would render the term meaningless. The term "essential" is defined as "inherent" or 
"indispensable." Webster 's I1 New College.Dictionary 384 (200 1). Accordingly, the petitioner must establish 
that the function is inherent and indispensable to the business rather than a low-level collateral task that is 
superfluous to the company's essential operations. The petitioner has not provided evidence that the 
beneficiary manages an essential function of the organization. For this reason, the petition may not be 
approved. 
In visa petition proceedings, the burden of proving eligibility for the benefit sought remains entirely with the 
petitioner. Section 291 of the Act, 8 U.S.C. 9 1361. The petitioner has not sustained that burden. 
ORDER: The appeal is dismissed.