dismissed L-1A Case: Construction

U.S. Department of Homeland Security 
20 Mass. Ave, N.W , Rm. A3000 
Wash~ngton. DC 20529 
iaemfng data d&v t.@ 
u 
pm~~llb c~!~PI U. S. Citizenship 
of oe and Immigration Services 
File: WAC 04 198 50807 Office: CALIFORNIA SERVICE CENTER Date: JuL 1 -8 2006 
Petition: 
 Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(15)(L) of the Immigration 
and Nationality Act, 8 U.S.C. 9 1101(a)(15)(L) 
IN BEHALF OF PETITIONER: ' 
INSTRUCTIONS : 
Thls IS the dec~sion of the Adm~nistrat~ve Appeals Office in your case. All ddcuments have been returned to 
the office that originally decided your case. Any further inquiry must be made to that office. 
M 
1 Robert P. Wiemann,,C&ief 
Hdministrative ~~6;eals Office 
WAC 04 198 50807 
Page 2 
DISCUSSION: The Director, California Service Center, denied the petition for a nonirnmigrant visa. The 
matter is now before the Administrative Appeals Office (AAO) on appeal. The AAO will dismiss the appeal. 
. I 
The petitioner seeks to extend the temporary employment of the beneficiary as its construction manager in the 
United States as an L-1 A nonimmigrant intracompany transferee pursuant to section 10 1 (a)(15)(L) of the 
Immigration and Nationality Act (the Act), 8 U.S.C. 5 1101(a)(15)(L). The petitioner, a domestic corporation 
lesale, retail, and construction, and claims to be the 
ocated in Manila, Philippines. The petitioner seeks to 
extend the benefichy's stay for an additional three years.' 
The director denied the pitition concluding that the petitioner did not establish that the beneficiary: will be 
employed in the United States in a.primarily managerial or executive capacity. On appeal, counsel for the 
petitioner alleges that the petitioner hadsatisfied its burden, and specifically states that "the ~etitioner's 
construction division 'is ,managed by the Beneficiary. +,,The division employs. ten (10) employees including a 
1 
business'manager and office manager. Contrary tb the denial decision, the duties of the beneficiary were ' 
described ~ith~articulafity." Additionally documentary evidence is submitted in support of this contention. 
*. 
To establish eligibility for the L;-1 nonimmigrant visa classification, the petitioner must meet the critkria . ' 
outlined in section 10l(a)(l5)(~) of the Act. Specifically, a'qualifying organization must have employed the 
beneficiary in a qualifying managerial or executive capacity, or in a specialized knowledge capacity, for one 
continuous year within the years preceding the beneficiary's application for admission' into the United 
States. In addition, the beneficiary must seek to ~nter the Uniteg States temporarily to continue rendering his 
or her services to the same employer pr a subsidiary or ,affiliate thereof in a mkagerial, executive, or 
specialized knowledge capacity. . .. 
,. . 
The primary issue in this matter is whether the beneficiary will be employed by the United States entity in a 
primarily managerial or executive capacity. 
Section 101(a)(44)(A) of the Act, 8 U.S.C. 6 1101(a)(44)(A), defines the term "managerial capacity" as an 
assignment within an organization in which the employee primarily: 
(i) 
 manages the organization, or a department, subdivision, function, or component of 
the organization; 
(ii) 
 supervises and,controls the work of other supervisory; professional, or managerial 
4 
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 
WAC 04 198 50807 
Page 3 
(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. 5 1101(a)(44)(B), defines the term "executive capacity" as an 
assignment within an organization in which the employee primarily: 
(i) 
 directs the management of the organization or a major component or function of the 
organization; 
. (ii) 
 establishes the goals and policies of the organization, compon'ent, or function; 
(iii) 
 exercises wide latitude in discretionary decision making; and 
(iv) 
 receives,orily general supervision or direction fiom higher level executives, the board 
of directors, or stockholders of the organization. 
In a letter from the petitioner dated June 23, 2004, the petitioner stated that the beneficiary's position is a 
management position. In addition, the petitioner submitted a job description of the beneficiary's position, 
which stated as follows: 
CONSTRUCTION MANAGER 
Manages all construction aspects of business engaged in retail, wholesale, construction and 
related services. Directly supervises project managers and engineers. Primarily directs, 
supervises and controls the work of all subordinate supervisory, managerial, and professional 
employees. Exercises discretion in day to day operations of Guam Construction Division. 
Has the power to hire and fire employees or to recommend those as well as other personnel 
actions for all employees of the business: 
The Construction Manager will: ' 
Meet with major clients & promote business 
 10% 
Meet with major suppliers and negotiate contracts 
 5% 
Supervise work of supervisors, managers, and engineers 
 50% 
WAC 04 198 50807 
Page 4 
Explore potential additional projects 5% 
Manage all aspects of construction business 20% 
The director found the initial evidence insufficient to satisfy the regulatory requirements. As a result, the 
director issued a request for evidence on July 22, 2004. The director requested additional information 
regarding the beneficiary's employment with the petitioner, such as the total numbers of employees retained 
by the petitioner; a; organizational chart describing the petitioner's managerial hierarchy and staffing levels, 
including the names of all employees, their position titles, their job duties, their educational backgrounds, and 
their annual salaries or wages; a more specific description of the beneficiary's managerial duties; and the 
petitioner's quarterly wage reports.and payroll summaries for the last eight quarters. 
In a letter dated September 16, 2004, the petitioner responded to the director's request. The petitioner 
submitted an organizational chart for the petitioner, which demonstrated that the beneficiary was supervised 
b-the petitionef's general manager. With regard to the beneficiary's subordinates, the chart 
indicated that the beneficiary oversaw the following employees: 
Business Manager 
ffice Manager I 
ecretary 
oreman 
Numerous other positions, such as project managers, procurement, warehousing, and various laborer positions 
were listed as currently vacant. Payroll summaries and uarterl wage reports indicates that as of June 30, 
2004, two days before the filing of the petition, on1 a Office Manager, and m 
Secretary, were employed in addition to the beneficiary and the general manager. 
 The petitioner also 
submitted a brief description of the duties of these other employees, but failed to provide any additional 
information with regard to the nature of the beneficiary's managerial duties. 
On October 21, 2004, the director denied the petition. The director found that the evidence in the record was 
insufficient to establish that the beneficiary would primarily be employed in a managerial or executive 
capacity. The director concluded that the record did not establish that the beneficiary would supervise a staff 
of subordinate professional, managerial, or supervisory employees, and further concluded that at the time of 
the time of filing, the petitioner did not supervise a staff of subordinate professional, managerial, or 
supervisory employees. 
On appeal, counsel for the petitioner states that the evidence submitted in support of the petition was 
sufficient, and emphasizes the fact that the petitioner now employs ten persons. In support of this contention, 
a payroll summary for the month of October 2004 was submitted, evidencing that the petitioner currently 
employed six persons in addition to the staff it had on the payroll at the time of filing. Counsel also resubmit: 
the initial position description for the beneficiary which was included with the initial petition. 
WAC 04 198 50807 
Page 5 
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. 9 214.2(1)(3)(ii). The petitioner's description of the job 
duties must clear'ly describe tlie duties to be performed by the beneficiary and indicate whether such duties are 
either in an exechive or managerial capacity. Id. 
Despite the specific requests of the director, the petitioner failed and/or refused to submit a more detailed 
description of the beneficiary's managerial duties.' The brief description of the beneficiary's duties, 
submitted with the initial petition, failed to answer a critical question in this case: What does the beneficiary 
primarily do on a daily basis? The actual duties themselves will reveal the true nature of the employment. 
Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1 103, 1 108 (E.D.N.Y. 1989), afd, 905 F.2d 41 (2d. Cir. 1990). 
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. Counsel asserts that this 
description, which he resubmits on appeal, adequately described the beneficiary's duties. The AAO 
disagrees.. 
I The generic overview of the beneficiary's duties, despite including a breakdown of the percentage of time 
devoted to each such duty, does not describe the nature of the beneficiary's day-to-day tasks as of July 2004, 
the time of the petition's filing. The AAO, therefore, concurs with the director's finding that the petitioner 
has not established that the beneficiary will be employed in either a primarily managerial or executive 
capacjty. Despite the 'director's specific request for a' ,detailed description df tfie beneficiary's managerial 
duties, the petitioner failed to directly respond to such a request.'; Failure to submit requested evidence that 
precludes a material 'line of inquiry shall be grounds for denying the 8 C.F.R. # 103.2(b)(14). 
Additionally, the minimal infohnation provided with regard to the beneficiary's 'position Tailed to specifically 
articulate the nature of the beneficlary's duties, and merely focused on the key phrases contained in the 
regulatory definition of managerial capacity. Specifics are clearly an important indication'of whether a 
beneficiary's duties are primarily executive or managerial in nature, otherwise meeting the definitions would 
simply be a matter of reiterating the regulations. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1103, aff'd, 905 
F.2d 41. 
1 I 
In this matter, the petitioner basically equates managerial and executive capacity with the beneficiary's title of 
construction manager, yet fails to provide solid examples of how this managerial or executlve capacity is 
actually attamed. Conclusory assertions regarding the beneficiary's employment capacity are not sufficient. 
Merely repeating the language of the statute or regulations does not satisfy the petitioner's burden of proof. 
Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1 103, 1 108 (E.D.N.Y. 1989), aff'd, 905 F. 2d 41 (2d. Clr. 1990); 
Avyr Associates, Inc. v. Meissner, 1997 WL 188942 at *5 (S.D.N.Y.). The director clearly requested a more 
,' 
' The AAO notes that in the denial, the director contends that the petitioner never submitted a description of 
the beneficiary's duties beyond a general statement that clalmed he was responsible for the management of 
the construction division. The h0 recognizes that the previous-cited positlon description and percentage of 
time devoted to each duty was in fact submitted with the initial petition but overlooked by the director. 
Nevertheless, for the reasons discussed above, this descript~on was lnsufficlent to establish that the 
beneficiary would be employed in a primarily managerial or executlve capacity, and does not excuse the 
petitioner's fallure to respond to the director's request for additional evidence wlth regard to thls matter. 
WAC 04 198 50807 
Page 6 
detailed description of the beneficiary's duties in the United States with specific emphasis on his alleged 
managerial capacity. The petitioner was put on notice of required evidence and given a reasonable opportunity 
to provide it for the record before the visa petition was adjudicated, but failed to do so. Again, failure to 
submit requestedtevidence that precludes a material line of inquiry shall be grounds for denying the petition. 
See 8 C.F.R. 8 103.2(b)(14). 
, 
While the vague description df job duties for the petitioner essentially negates the claim that the beneficiaryis 
functioning in a primarily managerial capacity, he might be eligible in the alt~rnative.if it could be shown that 
his position in the organizational hierarchy of the petitioner went beyond thit of a first line supervisor. 
Although the beneficiary is not i-equjred to supervise personnel, if it is claimed that his duties involve 
supervising empl'oyees, as is the case in this matter, the petitioner must establish.that: the subordinate 
employees are supervisory, professional, or managerial. See 8 10 1 (a)(44)(A)(ii) of the Act. , 
1 
In this matter, although the organizational chart indicated that the beneficiary oversaw four subordinate 
employees, namely, the office manager, the business manager, the secretary, and the foreman, the payroll 
records indicate that at the the of the filing of the petition, only the secretary and the office manager were on 
the petitioner's payroll. 
 The record indicates that the office manager possesses a bachelor's degree in 
chemical engineering, and that the secretary has a bachelor's degree in education. Their duties, however, are 
described as being the general duties associated with each respective position. For example, the secretary is 
designated with responsibility for general office'operations and procedures, such as typing and bookkeeping, 
whereas the office manager handles administrative tasks such as preparation of payrolls and requisition of 
supplies. 
In evaluating whether the benekciary manages professional employees, the MO 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 1 101(a)(32), states that "[tlhe term profession shall include but not 
be limited to architects, engineers, lawyers, physicians, surgeons, and teachers in elementary or secondary 
schools, colleges, academies, or seminaries." The term "profession" contemplates knowledge or learnmg, not 
.merely skill, of an advanced type in a given field gained by a prolonged course of specialized instruction and 
study of at least baccalaureate level, which is a realistic prerequisite to entry into the particular field of 
endeavor. Matter of Sea, 19 I&N Dec. 817 (Comm. 1988); Matter of Ling, 13 I&N Dec. 35 (R.C. 1968); 
Matter of Shin, 'I 1 I&N Dec. 686 (D.D. 1966). Although these employees possess advanced degrees, there is 
no evidence in the record to indicate that a bachelor's degree in chemical engiieering is a prerequisite for the 
position of office manager. Similarly, there is no indication that a bachelor's degree in education is required 
to fulfill the duties of secretary at this company. Therefore, the petitioner has failed to establish that these 
employees could be classified as professionals. Nor has the petitioner shown that either of these employees 
supervise subordinate staff members or manage a clearly defined department or function of the petitioner, 
such that they could be classified as managers or supervisors. Thus, the petitioner has not shown that the 
beneficiary's subordinate kmployees are supervisory, professional, or managerial, as required by section 
lOl(a)(44)(A)(ii) of the Act. , 
On appeal, counsel for the petitioner relies on the growth in the petitioner's staff and the continuing expansion 
of the business in support of the beneficiary's managerial capacity. This reliance is misplaced. The petitioner 
'1 
WAC 04 198 50807 \ 
Page 7 
r 
I 
must establish eligibility it the time of filing the nonimmigrant visa petition. A v~sa pet~tion 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). 
For the reasons stated above, the petitioner has failed to establish that the beneficiary will be employed in a 
primarily managerial or exec~tive'ca~acity. 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. fj 1361. Here, that burden has not been met. Accordingly, the 
director's decision will be affirmed and the petition will be denied. ' 
ORDER: The appeal is dismissed.