dismissed L-1A Case: Construction Materials

U.S. Department of Homeland Security 
20 Massachusetts Ave., N.W., Rm. 3000 
. - Washington, DC 20529 
identifying dzta deleted to 
prevent clearly unwamznted 
 u. S. citizenship and  migration invasion of personal privacy Services 
PUBLIC COPY 
File: WAC 08 014 51425 Office: CALIFORNIA SERVICE CENTER Date: 
NOV 0 3 i!@b 
Petition: 
 Petition for a Nonimmigrant Worker Pursuant to Section 10 1 (a)(15)(L) of the Immigration 
and Nationality Act, 8 U.S.C. § 1101(a)(15)(L) 
IN 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. 
+ 
Robert P. Wiemann, Chief 
Administrative Appeals Office 
WAC 08 014 51425 
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 AAO will dismiss the appeal. 
The petitioner filed this nonimmigrant petition seeking to employ the beneficiary in the position of "chief 
executive officer" 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. 9 1101(a)(15)(L). The petitioner, a corporation 
organized under the laws of the State of California, is allegedly a wholesaler and retailer of construction 
material.' 
The director denied the petition concluding that the petitioner failed to establish (1) that the beneficiary was 
employed abroad in a primarily managerial or executive capacity; or (2) that the beneficiary was employed 
abroad full-time for one continuous year within the three years preceding the filing of the instant petition. 
The petitioner subsequently filed an appeal. The director declined to treat the appeal as a motion and 
forwarded the appeal to the AAO for review. On appeal, counsel asserts that the petitioner has established 
that the beneficiary was employed abroad in a primarily managerial or executive capacity for at least one 
continuous year within the three years preceding the filing of the instant petition. In support, counsel submits 
a brief and additional evidence pertaining to the beneficiary's period of purported foreign employment. 
To establish eligibility for the L-1 nonimmigrant visa classification, the petitioner must meet the criteria 
outlined in section 101(a)(15)(L) 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 three years preceding the beneficiary's application for admission into the United 
States. In addition, 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. 3 214.2(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 within the three years preceding the filing of 
the petition. 
I 
It is noted that, according to the corporate records of the State of California, the petitioner's corporate name is 
II 
WAC 08 014 51425 
Page 3 
(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 himher 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 first issue in this proceeding is whether the petitioner has established that the beneficiary was employed 
abroad in a primarily managerial or executive capacity. 
Section 101(a)(44)(A) of the Act, 8 U.S.C. § 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 
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 
(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. 8 1101(a)(44)(B), defines the term "executive capacity" as an 
assignment within an organization in whch 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. 
WAC 08 014 51425 
Page 4 
The petitioner does not clarify in the initial petition whether the beneficiary primarily performed managerial 
duties under section 101 (a)(44)(A) of the Act, or primarily executive duties under section 101 (a)(44)(B) of 
the Act. A petitioner may not claim that a beneficiary was employed as a hybrid "executive/manager" and 
rely on partial sections of the two statutory definitions. Given the lack of clarity, the AAO will assume that 
the petitioner is asserting that the beneficiary was employed in either a managerial or an executive capacity 
and will consider both classifications. 
The petitioner described the beneficiary's duties abroad in a letter dated October 12,2007 as follows: 
[The beneficiary] has served as the Business Department Vice Manager of [the foreign 
employer] since February 2005. From March 2006 to July 2007, [the beneficiary] worked as 
Operations Vice President in charge of the company's operations, for Business Department 
and Integration and Management Department. His duties included [sic] in charge of 
company overall management. Participating [sic] in establishing and formulating company 
policies, managing the Business Department and Integration and Management Department 
and its managers. Exercises [sic] the discretionary decision-making over the day-to-day 
operation. Has [sic] authority to hire, terminate, evaluate and promote managerial staff in 
subordinate departments based on their job performance, qualification[s] and contributions. 
The petitioner also submitted an organizational chart and employee list for the foreign employer. However, 
neither the beneficiary's position nor the departments he purportedly manages appear on the chart. 
On December 5,2007, the director requested additional evidence. The director requested, inter alia, evidence 
addressing the number of workers employed abroad; a more detailed organizational chart, including job 
descriptions for all employees under the beneficiary's supervision abroad; and a more detailed description of 
the beneficiary's duties abroad. 
In response, the petitioner submitted a letter from the foreign employer dated February 15, 2008 in which the 
beneficiary's duties abroad are described as follows: 
[The beneficiary's] duties included formulating the fiscal year sales plan of the company and 
implement to fullfil [sic] it; developing and coordinating the relation between enterprise and 
its customers; market researching, data collection and analysis; building up and fostering the 
professional team and daily managing; in charge of operation of the company's business 
department and purchasing of materials; organizing formulate rules and regulations for 
professional management and setting up of inner institution; organizing appointment, 
examination, allocation, promotion, reward and punishment, and dismissal of marketing 
professional personnel in the subsiding departments within the scope of manning quota; 
organizing formulate and to report to General Manager the monthly signing of marketing 
contracts and their implementation state and fulfilling state of targets; organizing formulate 
and to report to General Manager the recover state of monthly fund, pre-estimation of the 
fund needed and the state of storage; coordinating the work co-operation between the 
marketing department and other departments; fulfilling temporary work given by General 
WAC 08 014 51425 
Page 5 
Manager on time. 
The petitioner also submitted a more detailed organizational chart which portrays the beneficiary as the 
foreign employer's "professional vice general manager" supervising the "professional department" (13 
workers) and the "comprehensive business department" (10 workers). Although the petitioner identifies two 
workers as supervisors subordinate to the beneficiary, the record is devoid of job descriptions for these 
claimed subordinate supervisors. 
On April 15, 2008, the director denied the petition. The director concluded that the petitioner failed to 
establish that the beneficiary was employed abroad primarily in a managerial or executive capacity. 
On appeal, counsel asserts that the director erred and that the beneficiary primarily performed qualifying 
duties abroad. Counsel also submits additional evidence pertaining to the beneficiary's claimed job duties 
abroad. 
Upon review, counsel's assertions are not persuasive. 
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. 5 214.2(1)(3)(ii). The petitioner's description of the job 
duties must clearly describe the duties performed by the beneficiary and indicate whether such duties were 
either in an executive or managerial capacity. Id. A petitioner cannot claim that some of the duties of the 
position entailed executive responsibilities, while other duties were managerial. Again, a petitioner may not 
claim that a beneficiary was employed as a hybrid "executive/manager" and rely on partial sections of the two 
statutory definitions. 
In this matter, the petitioner's description of the beneficiary's job duties fails to establish that the beneficiary 
acted in a "managerial" or "executive" capacity. In support of the petition, the petitioner has submitted a 
vague and non-specific job description which fails to sufficiently describe what the beneficiary did on a day- 
to-day basis. For example, the petitioner states that the beneficiary formulated the "fiscal year sales plan," 
coordinated customer relations, took charge of market research, formulated rules and regulations, and 
generally "managed" the professional team, the business department, materials purchasing, and reporting to 
the general manager. However, the petitioner fails to specifically describe the "sales plan" or the formulated 
rules or regulations, or explain what, exactly, the beneficiary did to manage customer relations, market 
research, or materials purchasing. The fact that a petitioner has given a beneficiary a managerial or executive 
title and has prepared a vague job description which includes inflated job duties does not establish that a 
beneficiary actually performed managerial or executive duties. Specifics are clearly an important indication 
of whether a beneficiary's duties were primarily executive or managerial in nature; otherwise meeting the 
definitions would simply be a matter of reiterating the regulations. Fedin Bros. Co., Ltd. v. Suva, 724 F. 
Supp. 1103 (E.D.N.Y. 1989), affd, 905 F.2d 41 (2d. Cir. 1990). Going on record without supporting 
documentary evidence is not sufficient for purposes of meeting the burden of proof in these proceedings. 
Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Cornm. 1972). 
WAC 08 014 51425 
Page 6 
Consequently, the record is not persuasive in establishing that the beneficiary primarily performed qualifying 
duties abroad. As noted above, the petitioner asserts that the beneficiary "managed" the performance of his 
duties through a subordinate staff. However, the record does not establish that subordinate workers relieved 
the beneficiary of the need to perform the non-qualifying tasks inherent to his ascribed duties. Not only are 
the beneficiary's managerial-sounding duties so vaguely described that it cannot be discerned whether these 
duties were truly qualifying (see supra), the petitioner also failed to establish that the foreign entity employed 
workers dedicated to relieving the beneficiary of the need to perform non-qualifying tasks. The petitioner 
failed to describe the duties of the subordinate supervisors and workers, even though this evidence was 
specifically requested by the director in the Request for Evidence. Failure to submit requested evidence that 
precludes a material line of inquiry shall be grounds for denying the petition. 8 C.F.R. 5 103.2(b)(14). Absent 
descriptions of the duties of the beneficiary's purported subordinate workers, it is impossible to discern 
whether the beneficiary was relieved of the need to primarily perform non-qualifying tasks. Accordingly, it 
appears more likely than not that the beneficiary primarily performed non-qualifying first-line supervisory, 
administrative, or operational tasks in his position abroad. An employee who "primarily" perfonns 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 
International, 19 I&N Dec. 593,604 (Comm. 1988). 
The petitioner also failed to establish that the beneficiary supervised and controlled the work of other 
supervisory, managerial, or professional employees, or managed an essential function of the organization. As 
claimed in the record, the beneficiary directly supervised two subordinate "managers" who, in turn, each 
supervised 10 or more workers. However, as noted above, the petitioner failed to describe the duties of these 
claimed subordinate "managers," or their subordinate workers, even though this evidence was specifically 
requested by the director. Once again, failure to submit requested evidence that precludes a material line of 
inquiry shall be grounds for denying the petition. 8 C.F.R. 103.2(b)(14). Accordingly, it cannot be 
concluded that any of these claimed subordinates was a bona fide managerial, supervisory, or professional 
worker, and it appears that the beneficiary was, at most, a first-line supervisor of non-professional employees. 
A managerial 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. 101(a)(44)(A)(iv) of the Act; see 
also Matter of Church Scientology International, 19 I&N Dec. at 604. 
2 
In evaluating whether the beneficiary managed professional employees, the AAO must evaluate whether the 
subordinate positions required 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 1101(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. Matter of Sea, 19 I&N Dec. 81 7 (Comm. 1988); Matter of Ling, 13 I&N Dec. 35 (R.C. 1968); 
Matter of Shin, 11 I&N Dec. 686 (D.D. 1966). 
WAC 08 014 51425 
Page 7 
Accordingly, the petitioner has not established that the beneficiary was employed primarily in a managerial 
capacity.3 
Similarly, the petitioner has failed to establish that the beneficiary acted 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. 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 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-day 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." Id. For the same reasons indicated above, the petitioner has failed to 
establish that the beneficiary acted primarily in an executive capacity. The beneficiary's job description is so 
vague that it cannot be discerned what, exactly, the beneficiary did on a day-to-day basis. As explained 
above, it appears more likely than not that the beneficiary was primarily employed as a first-line supervisor 
and performed the tasks necessary to produce a product or to provide a service. Therefore, the petitioner has 
not established that the beneficiary was employed primarily in an executive capacity. 
Accordingly, the petitioner has failed to establish that the beneficiary primarily performed managerial or 
executive duties abroad, and the petition may not be approved for that reason. 
3~hile the petitioner has not argued that the beneficiary managed an essential function of the organization, 
the record nevertheless would not support this position even if taken. 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. 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 function, 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 
managed the function rather than performed the tasks related to the function. In this matter, the petitioner has 
not provided evidence that the beneficiary managed an essential function. The petitioner's vague job 
description fails to document that the beneficiary's duties were primarily managerial. Also, as explained 
above, the record indicates that the beneficiary was more likely than not primarily a first-line supervisor of 
non-professional workers or a performer of non-qualifying tasks. Absent a clear and credible breakdown of 
the time spent by the beneficiary performing his duties, the AAO cannot determine what proportion of his 
duties were managerial, if any, nor can it deduce whether the beneficiary was primarily performing the duties 
of a function manager. See IKEA US, Inc. v. US. Dept. of Justice, 48 F. Supp. 2d 22,24 (D.D.C. 1999). 
WAC 08 014 51425 
Page 8 
The second issue in the present matter is whether the petitioner established that the beneficiary was employed 
abroad full-time for one continuous year within the three years preceding the filing of the instant petition. 8 
C.F.R. 9 214.2(1)(3)(iii). 
In support of the petition, the petitioner submitted a translation of a document titled "certificate" which 
indicates that the beneficiary was employed abroad from February 2005 until July 2007. The petitioner also 
submitted a second document also titled "certificate" which lists the beneficiary's monthly salary from 
February 2005 until September 2007. 
On December 5, 2007, the director requested additional evidence. The director requested, inter alia, payroll 
records pertaining to the beneficiary's employment in the year preceding the filing of the petition. 
In response, the petitioner submitted copies of the beneficiary's pay stubs indicating that the beneficiary 
received a steadily increasing monthly salary from the foreign employer beginning February 2005 and ending 
in December 2007, the month in which the Request for Evidence was sent by the director. 
On April 15, 2008, the director denied the petition. The director concluded that, because the pay stubs 
submitted in response to the Request for Evidence do not "list any information regarding the beneficiary's 
dates of employment abroad," the petitioner failed to establish that the beneficiary was employed abroad full- 
time for one continuous year within the three years preceding the filing of the instant petition. 
Upon review, the AAO disagrees with the director and will withdraw this part of the decision. The copies of 
the pay stubs submitted by the petitioner bear the date of issue at the top of each pay stub. Accordingly, 
based on the evidence submitted by the petitioner, it appears more likely than not that the beneficiary was 
employed full-time for one continuous year within the three years preceding the filing of the instant petition, 
and this portion of the director's decision shall be withdrawn. 
Nevertheless, as the petitioner failed to establish that the beneficiary was employed abroad in a primarily 
managerial or executive capacity, the appeal shall be dismissed and the petition denied. 
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.