dismissed L-1A Case: Courier Service

identifying data deleted to 
prevent clearly unwarranted 
invasion of personal privacy 
PCRlLlc COPY 
US. Department of Homeland Security 
20 Massachusetts Ave., N.W., Rm. A3042 
Washington, DC 20529 
FILE: EAC 03 077 54044 Office: VERMONT SERVICE CENTER Date: 'JUN 1 0 20C5 
PETITION: Petition for a Nonimrnigrant Worker Pursuant to Section 10l(a)(15)(L) of the Immigration 
and Nationality Act, 8 U.S.C. § 1 101 (a)(15)(L) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Office in your case. All documents have been retuned to 
the office that originally decided your case. Any fiuther inquiry must be made to that office. 
R ert P. Wiemann, Director @ 
(~dministrative Appeals Ofice 
EAC 03 077 54044 
Page 2 
DISCUSSION: The nonimmigrant visa petition was denied by the Director, Vermont 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 
claims to be a courier service business. The petitioner claims to be a subsidiary 
, located in Seoul, Korea. The petitioner seeks to extend its authorization to employ the 
beneficiary temporarily in the United States as a business development manager for an addtional two years, 
at an annual salary of $45,000.00. The director determined that the petitioner had not submitted sufficient 
evidence to demonstrate 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 its stay to open a new office 
in the United States and the petitioner now seeks to extend the beneficiary's stay. 
On appeal, counsel disagrees with the &rector's decision and asserts the evidence submitted is sufficient to 
demonstrate that the duties performed by the beneficiary will be managerial or executive in capacity. 
To establish L-1 eligibility under section 101(a)(15)(L) of the Immigration and Nationality Act (the Act), 
8 U.S.C. 5 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. 5 2 14.2(1)( l)(ii) states, in part: 
Intracompany 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 Wtioner and the organization which employed or will employ the 
alien are qualifying organizations as defined in paragraph (l)(I)(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. 
(ijj) 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 knowledge and that the alien's prior 
EAC 03 077 54044 
Page 3 
education, training, and employment qualifies hider to perform the intended serves 
in the United States; however, the work in the United States need not be the same 
work which the alien performed abroad. 
The regulation at 8 C.F.R. 5 214.2(1)(14)(ii) states that a visa petition under section 101(a)(15)(L) which involved 
the opening of a new office may be extended by filing a new Form I- 129, accompanied by the following: 
A) Evidence that the United States and foreign entities are still qualifying 
organizations as defined in paragraph (l)(l)(ii)(G) of this section; 
B) Evidence that the United States entity has been doing business as defined in 
paragraph (I)( 1 )(ii)(H); 
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 staffing 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 in this proceeding is whether the petitioner has submitted suEcient evidence to establish that the 
beneficiary will be employed by the U.S. entity in a primarily managerial or executive capacity. 
Section 101 (a)(44)(A) of the Act, 8 U.S.C. $ 1 10 l(a)(44)(A), provides: 
The term "managerial capacity" means an assignment within an organization in which the 
employee prirnarily- 
(i) Manages the organization, or a department, subdivision, function, or 
component of the organization; 
(ii) Supe~ses 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 
EAC 03 077 54044 
Page 4 
(iv) Exercises discretion over the day-today 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. 4 1101(a)(44)(B), provides: 
The term "executive capacity" means an assignment within an organization in which the 
employee primarily- 
(0 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 &om higher level 
executives, the board of directors, or stockholders of the 
organization. 
Section 101(a)(44)(C) of the Act, 8 U.S.C. 5 1101 (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 ?&e into account the reasonable 
needs of the organization component, cx function 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. 
In a letter of support, dated December 26,2002, the petitioner described the beneficiary's duties as: 
[The beneficiary1 develo~s. formulates and imlernents all research and marketing stratePies 
directs the conduct of research on the East Coast of U.S. courier service market. The 
Business Development Manager exercises broad decision-making authority in formulation 
and implementing marketing strategies for our services and for establishing relationships with 
existing and potential clients, based on this intimate knowledge of our courier service 
business, together with our long-term corporate growth strategies. 
The Business Development Manager directs and performs market research on the latest 
trends in the courier service business in the U.S. He will analyze industry publ~cations and 
attend professional conferences to determine trends, and he keeps track of the technologres 
currently available in the market by attending trade shows. Additionally, he utilized 
EAC 03 077 54044 
Page 5 
independent market consultants to provide reports on current development in the industry to 
forecast market changes that have not yet reached the market. He is responsible to analyze 
how the latest courier service has performed in the East Coast market and customer responses 
to these services, and makes recommendations for the use of such service in Korea. He also 
conducts research on the U.S. market, to assess the competition and identify potential clients. 
He establishes short-and long-term marketing objectives and develops and implements 
strateges to achieve those objectives. He meets with potential clients to discuss Korea Air 
Courier Service's specialized expertise and experience and meets with potential suppliers to 
discuss its needs. 
[The beneficiary's] duties also includes [sic] the preparation of periodic progress reports 
relating to the US, subsidiary's business development activities for presentation to our Parent 
Company in Korea. He reports regularly to our Parent Company with respect to allocation of 
funds and development of long-and short-term business plans and objectives. Commensurate 
with his responsibilities, [the beneficiw] receives an annual salary of $50,000.00, plus 
additional managerial benefits and compensations. 
The petitioner submitted as evidence copies of the U.S. entity's IRS Form 940-EZ, Employer's Annual 
Federal Employment (FUTA) Tax Return for 2001, NYS-45, Quarterly Combined Withholding, Wage Report 
for July through September of 2001 and April through June of 2002, and IRS Form 941, Employer's 
Quarterly Federal Tax Return for the quarter ending December 3 1,2001. 
The director determined that insufficient evidence had been submitted to determine the beneficiary's 
eligibility for the continuation of the nonimmigrant status sought, and subsequently requested that the 
petitioner submit additional evidence. The director requested in part: 
Submit additional evidence to establish that the beneficiary will be employed in a managerial 
capacity in the United States firm. 
Submit a complete position description for all of your proposed employees in the United 
States, including one for the beneficiary's position. Submit a breakdown of the number of 
hours devoted to each of the employees' job duties on a weekly basis. 
The beneficiary's duties, as described in the record, do not appear to relate primarily to policy 
and general operations oversight. Rather, the beneficiary's duties appear to relate to the day- 
to-day operation involved in producing a product or providing a service as well as the 
supervision of nonqualifying employees. 
Submit a comprehensive descripon of the beneficiary's proposed duties. Also indicate how 
the beneficiary's duties will be managerial or executive in nature.. .. 
The United States office is not a new office. Therefore, it must be established that it can 
currently support a managerial level position. With only two employees it does not appear 
that it can. 
If the company has used contractors rather than employees to perform any functions, submit 
' 
evidence documenting the number of contractors utilized and the duties performed. 
EAC 03 077 54044 
Page 6 
In response to the director's request for evidence, counsel stated that the U.S. entity employed two individuals 
in addition to the beneficiary in 2002, and hired three couriers in 2003. Counsel further stated that 
Citizenship and Immigration Services (CIS) and the U.S. Embassy in Korea had previously approved the 
beneficiary's L-1A nonimmigrant status using the same job description as is used in the instant petition. The 
petitioner submitted as evidence a staff chart, which listed the beneficiary as business development manager 
and chief operating officer, with a supervisor, and four delivery persons under his direction. The petitioner 
reiterated the beneficiary's proposed job duties and asserted that the job description was defined as "D.O.T. 
183.1 17-01 0, SVP: 8" and was equal to the executive branch manager level found in the Directory of 
Occupational Titles published by the United States Department of Labor. The petitioner described the 
supervisor's job duties as: 
Directs and coordinates through subordinate supervisory personnel, activities of delivery 
processing in industrial, business establishment and domestic clients, applying knowledge of 
delivery methods, processes, machines and equipment and layout, and delivery capabilities of 
each dnver: Reviews pick-up and delivery order or schedules to ascertain delivery data, such 
as types, quantities, and specifications of goods and scheduled delivery dates in order to plan 
courier service operations. Plans service operations, establishing priorities and sequences of 
delivering goods, utilizing and knowledge of delivery process and methods and capabilities, 
and to ensure delivery qualification meets the specifications. Reviews delivery and operating 
reports and resolves operational, delivery, and maintenance problems. Develops and revises 
standard operational and working practices and observes workers to ensure compliance with 
standards. 
The petitioner described the delivery person's job duties as: "Drive commercial van or other vehicles over 
established routes or within an established territory and deliver goods of any legal products as courier service. 
May also take orders and collect payments. Keep records and report to the main office of what has been 
picked up and delivered." 
The petitioner submitted as evidence a copy of the petitioner's IRS Form 1120-A, U.S. Corporation Short- 
Form hcome Tax Return for 2002 and a copy of the job description of Branch Manager as defined at "D.O.T. 
183.1 17-0 10, SVP: 8" in the Directory of Occupational Titles published by the United States Department of 
The director subsequently denied the petition after determining that the record was insufficient to establish 
that the beneficiary would be employed by the U.S. entity in a primarily managerial or executive capacity. 
The director noted that the petitioning entity was a courier and delivery service that employed six workers. 
The director also noted that in review of the evidence submitted the subordinate employees were non- 
professional and non-supervisory, and that the employee listed as company supervisor was only such in name. 
The director further noted that the U.S. entity had not yet reached a level where it would be able to support a 
managerial or executive position although it had been in business for more than one year. The director 
concluded by noting that the emphasis placed on the beneficiary's marketing duties coupled with the small 
staff that would need to be supervised demonstrated that the majority of the beneficiary's time would be spent 
performing non-managerial duties. The director stated that a review of the record showed that the beneficiary 
EAC 03 077 54044 
Page 7 
was primarily performing non-managerial market research analyst duties, and that the petitioner only briefly 
discussed the beneficiary's duties at the managerial level. 
On appeal, counsel disagrees with the director's decision and asserts that CIS erred in finding that the U.S. 
entity had not grown to a size sufficient to justify a managerial level position and that the beneficiary's 
position did not qualify as managerial or executive in nature. Counsel also asserts that the U.S. entity was one 
-years old and that the primary objective initially was to research cumer market trends in the United States, 
and to promote and develop the foreign entity's business. Counsel further asserts that realizing a gross 
income of $221,300.00, as envisioned in the company's business plan, and hiring five additional employees 
within the first year of operation is proof that the U.S. entity has grown sufficient to justify a managerial level 
position within the company. Counsel reiterates the beneficiary's job duties described in the petitioner's letter 
of support, dated December 26,2002, and again contends that the duties described are equivalent to that of an 
executive branch manager as described in the Directory of Occupational Titles (DOT). Counsel also contends 
that the nature of the courier business itself makes the employment of five delivery persons common within 
the industry. 
On appeal, the petitioner submits a copy of the U.S. entity's business plan. The petitioner resubmits copies of 
the petitioner's letter of support, staff chart, description of the employees' job duties, IRS Form 1120-A, 
Corporate Income Tax Return for 2002, company financial statement and balance sheet for 2002, and the 
beneficiary's IRS W-2 form for 2002. 
On review, the record as presently constituted is not persuasive in demonstrating that the beneficiary will be 
employed by the U.S. entity in a primarily 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. 9 214,2(1)(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 petitioner must specifically state whether the beneficiary is primarily employed 
in a managerial or executive capacity. A petitioner cannot claim that some of the duties of the position entail 
executive responsibilities, while other duties are managerial in nature. Although specifically requested by the 
director in the request for evidence, the petitioner failed to submit evidence indicating how the beneficiary's 
duties would be managerial or executive in nature. 
The petitioner has not shown that the Department of Labor's description of an executive branch manager in 
the DOT has any bearing on this proceeding. The petitioner has not shown that the Depaitrnent of Labor 
reserves the title of manager to those working in a managerial capacity as defined at section 10 1 (c)(44)(A) of 
the Act. The petitioner states that the beneficiary will be employed as the U.S. entity's business development 
manager and will be responsible for conducting market research on the latest trends in the courier service 
business in the United States, establishing short-term and long-term marketing objectives and developing and 
implementing strategies to achieve objectives, and that he will exercise broad decision-making authority. 
However, the petitioner has failed to demonstrate how these duties are managerial or executive in nature and 
how much time the beneficiary will spend performing each duty. 
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 prima@ performs these specified responsibilities and does not spend a 
majority of his or her time on day-today functions. Champion World, Inc. v. INS, 940 F.2d 1533 (Table), 
1991 WL 144470 (9th Cir. July 30, 199 1). in the instant matter, there has been insufficient evidence andlor 
EAC 03 077 54044 
Page 8 
explanation given to establish that the beneficiary has and will perform high-level responsibilities conducive 
to a managerial or executive position. To the contrary, it appears that the beneficiary has been and will 
continue to be primarily performing the marketing research necessary to develop the petitioner's business and 
supervise non-professional employees. 
Although specifically requested by the director in the request for evidence, the petitioner has failed to submit 
a comprehensive description of the beneficiary's proposed job duties that demonstrates what the beneficiary 
does on a day-to-day basis. 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 (E.D.N.Y. 
1989), ard, 905 F.2d 4 1 (2d. Cir. 1990). 
The petitioner fails to document what portion of the beneficiary's duties would be managerial functions and 
what portion would be non-managerial. The petitioner lists the beneficiary's duties as managerial, but it 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 performing marketing research, are not 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 manager. See IKEA US, Inc. v. U.S. Dept. of Justice, 48 F. Supp. 2d 22, 
24 (D.D.C. 1 999). 
In the request for evidence, the director requested that the petitioner submit a breakdown of the number of 
hours devoted to each of the employees' job duties on a weekly basis. The petitioner failed to submit this 
evidence in response. Although the petitioner listed the hours of employment for each employee, such as 
"9:00 A.M - 6:00 P.M.," this information is insufficient to determine how much time the employee spends 
performing each task. The purpose of the request for evidence is to elicit further information that clarifies 
whether eligibility for the benefit sought has been established. 8 C.F.R. 9 103.2@)(8). The failure to submit 
requested evidence that precludes a material line of inquiry shall be grounds for denying the petition. 
8 C.F.R. 8 103.2(b)(14). 
In addition, the petitioner describes the beneficiary as conducting market research on the latest trends in the 
courier service business in the United States. Since the beneficiary actually conducts the marketing research, 
he is performing a task necessary to provide a service or product and this duty will not be considered 
managerial or executive in nature. 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. Matter 
of Church Scientology international, 19 I&N Dec. 593,604 (Comrn. 1988). 
The petitioner has failed to overcome the objections made by the director with regard to the U.S. entity's 
ability to support a managerial or executive position. The evidence shows that the petitioner is an 
established entity in that it has been doing business for one year. The evidence also shows that the company 
employed four indviduals at the time the petition was initially filed, and hired three additional drivers in 
2003. The evidence Wher demonstrates that the beneficiary spent his first year of employment in the U.S. 
entity primarily conducting marketing research, and that it is proposed he will be performing the same duties 
in the future. The petitioner infers that it plans to hire additional managers and employees in the future. 
However, the petitioner must establish eligibility at the time of filing the nonimmigrant visa petition. A visa 
petition may not be approved at a future date afier the petitioner or beneficiary becomes eligible under a new 
set of facts. Matier of Michelin Tire Corp., 17 I&N Dec. 248 (Reg. Comm. 1978). Furthermore, 8 C.F.R. 9 
214.2(1)(3)(v)(C) aI1ows the intended United States operation one year within the date of approval of the 
EAC 03 077 54044 
Page 9 
petition to support an executive or managerial position. There is no provision in CIS regulations that allows 
for an extension of this one-year period. If the business is not sufficiently operational after one year, the 
petitioner is ineligible by regulation for an extension. As noted by the director, although it appears that the 
beneficiary and- managerial and supervisory titles, there is insufficient evidence contained 
in the record to emonstrate t at the actual duties performed are managerial or supervisory in nature. Further, 
the delivery persons are employed in nonqualifying positions, thus bringing into question the availability of a 
subordinate staff composed of supervisory, professional, or managerial employees who can relieve the 
beneficiary from performing non-qualifpg duties. See section 101(a)(44)(A)(ii) of the Act. A first-line 
supervisor will not be considered to be acting in a managerial capacity merely by virtue of his or her 
supervisory duties unless the employees supervised are professional. Section 101 (a)(44)(A)(iv) of the Act. h 
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 may not be approved. 
Beyond the decision of the director, the regulation at 8 C.F.R. § 214.2(1)(14)(ii) provides strict evidentiary 
requirements that the petitioner must satisfy prior to the approval of this extension petition. The petitioner has 
not satisfied all of the enumerated evidentiary requirements. The minimal documentation submitted of the 
foreign entity's business operations raises the issue of whether the foreign entity has been and will continue to 
be engaged in the regular, systematic, and continuous provision of goods and/or services pursuant to 
8 C.F.R. 5 2 14.2(1)(l)(ii)(G)(2), during the beneficiary's temporary stay in the United States. The petitioner 
submitted copies of the foreign entity's statement of profit and loss for the years 1999 and 2000, statement of 
income surplus disposal for 1999, 2000, and 2001, and a Certificate of Taxation for 2001. There is no 
evidence that the foreign entity has been doing business during the 2002 tax year. This in turn brings into 
question the issue of whether there remains a qualifying relationship between the U.S. entity and a foreign 
entity pursuant to 8 C.F.R. 4 2 14.2(1)(l)(ii)(G). For this additional reason, the petition may not be approved. 
An application or petition that fails to comply with the technical requirements of the law may be denied by the 
AAO even if the Service Center does not identify all of the grounds for denial in the initial decision. See 
Spencer Enterprises, Inc. v. United States, 229 F.SU~~.~& 1025, 1043 (E.D. Cal. 2001), ard. 345 F.3d 683 
(9* Cir. 2003); see also Dor v. INS, 891 F.2d 997, 1002 n. 9 (2d Cir. 1989) (noting that the AAO reviews 
appeals on a de novo basis). 
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.