dismissed L-1A Case: Diamond Jewelry

U.S. Department of Homeland Security 
20 Mass Ave. N.W., Rm. A3042 
Washington, DC 20529 
U. S. Citizenship 
1 and Immigration 
Services 
File: SRC 03 154 50344 Office: TEXAS SERVICE CENTER Date: 
Petition: Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(15)(L) of the Immigration 
and Nationality Act, 8 U.S.C. 5 1 101(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, Director 
Administrative Appeals Office 
SRC 03 154 50344 
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DISCUSSION: The Director, Texas 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 appe,al. 
The petitioner filed this nonimmigrant petition seeking to extend the employment of its EDP manager as an 
L-1A nonimmigrant intracompany transferee pursuant to section 101(a)(15)(L) of the Immigration and 
Nationality Act (the Act), 8 U.S.C. 5 1101(a)(15)(L). The petitioner is a corporation organized in the State of 
Texas that is engaged in manufacturing and importing diamond jewelry. The petitioner claims that it is the 
affiliate of Pvt. Ltd. located in Mumbai, India. The beneficiary was initially granted a 
as the petitioner's EDP manager and the petitioner now seeks to extend the 
beneficiary's stay. 
The director denied the petition concluding that the petitioner did not establish that the beneficiary will be 
employed in the United States in a primarily managerial or executive capacity. 
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 for the petitioner asserts that the director 
confused the requirements for managerial and executive capacity and did not apply the appropriate sl.andard in 
adjudicating the petition. Counsel further asserts that sufficient evidence was submitted to establish that the 
beneficiary manages a major component or function of the organization and functions at a senior level within 
the organizational hierarchy and with respect to the function managed. Counsel submits a brief and i~dditional 
evidence in support of the appeal. 
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 capacit:~, 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. 5 214.2(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 (I)(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 employmer~t 
abroad with a qualifying organization within the three years preceding the filing of 
the petition. 
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(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 prilsr 
education, training, and employment qualifies hider 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 primary issue in the present 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. 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 manageri,al 
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 lo 
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. 3 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, 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. 
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On Form 1-129, the petitioner indicated that the beneficiary is "[r]esponsible for overall management of all 
data processing activitiesm [sic] including input of data; production of reports; production of in-house 
promotional materials using desk-top publishing, maintaining and updating company web site." I[n a letter 
appended to the petition, dated May 2,2003, the petitioner describes the beneficiary's duties as follows: 
In this position he has developed and implemented data processing solutions to all aspects of 
our operations. In addition, he manages our graphics department. His primary responsibilities 
include overall management of all data processing activities which include accounts 
receivable, accounts payable, inventory control, general ledger, production of MIS reports, 
updating and proper storage of data, liaise with software company for periodic updates of 
Jewels2000 software and troubleshooting and upgrading and maintaining computers ar~d 
peripherals. 
In support of the initial petition, the petitioner submitted an organizational chart depicting the beneficiary's 
position within its "Accounts, Administration, Data Processing." Department. The organizational chart shows 
that the beneficiary supervises a design manager. 
On May 28, 2003, the director requested additional evidence. Specifically, the director requested a definitive 
statement describing the employees that the beneficiary will be responsible for in the United States and 
abroad, including: (1) the number of subordinate managers/supervisors or other employees who report 
directly to the beneficiary, along with a brief job description of their job titles, duties and educational 
background; (2) if the beneficiary does not supervise any other employees, an explanation as to whal. essential 
function within the organization he manages; (3) the qualifications required for the beneficiary's position; 
and (4) the beneficiary's position within the organizational hierarchy. In addition, the director specifically 
requested that the petitioner indicate who provides the sales/services or produces the product of the business, 
and who is responsible for shipping and handling activities for the U.S. company. The director also requested 
various documents as evidence that both the foreign and U.S. entities are currently doing business. 
In response, the petitioner submitted the following description of the beneficiary's duties: 
[The beneficiary] manages one of the most important functions of [the petitioner]. He is 
responsible for our EDP function and oversees the day to day operations of our computer 
systems. He operates at the highest level within the organization regarding the EDP function. The 
importance of the EDP function cannot be overstated. Without the proper selection and operation 
of our EDP department employees would not be paid, vendors would not be paid, goods would 
not be sold and accounts would not be collected. Our annual sales are over $10 million uer veal-. 
A 2 
Although he reports administratively to -it is [the beneficiary] who has contrcd 
and authority of the EDP function. 
The petitioner also submitted a revised organizational chart, which shows that the beneficiary supervises an 
assistant manager. In a supporting statement submitted with the organizational chart, the petitioner identified 
the beneficiary's subordinate as "EDP assistant" and states that she is responsible for preparing and reviewing 
invoices, shipping merchandise to customers, and authorizing and approving customer returns. In this 
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statement, the petitioner lists the beneficiary's subordinate's qualifications as a bachelor of commerce 
awarded in 1997 and states that the position requires knowledge of computer systems, accounting systems and 
a bachelor's degree in business or commerce. The petitioner further states that the general manager of the 
company is responsible for production and sales activities which are performed by the sales, marketing and 
production staff, including three marketing managers, the inventory control manager, an assistant manager, 
and a diamond buyer. Finally, the petitioner states that shipping and handling activities are the responsibility 
of the assistant manager, inventory control. 
On September 25, 2003, the director denied the petition. The director determined that the petitioner did not 
demonstrate the beneficiary manages or directs the management of a department, function or component of 
the organization, nor did the petitioner establish that the beneficiary will be involved in the supervision or 
control of the work of other supervisory, professional or managerial employees who will relieve him from 
performing the services of the business. Consequently, the director concluded that the majority of the 
beneficiary's work time would be spent in the "non-executive" day-to-day operations of the business, and 
thus he would not be employed in a bona fide executive position. 
On appeal, counsel for the petitioner asserts that the beneficiary manages an essential function within the 
company. Further, counsel contends that the director incorrectly applied both managerial and executive 
standards and ultimately based her decision on the definition of executive when the petitioner never claimed 
that the beneficiary was an executive. In addition, counsel states that the director incorrectly utilized staffing 
levels as a factor in making her decision when the beneficiary's duties should have instead been evaluated as 
those of a function manager. Counsel cites several precedent decisions in support of his assertion that staffing 
levels need not be used as a determining factor in order to qualify for L-1A classification. Finally, counsel 
contends that the director's decision is inconsistent with the approval of the beneficiary's inilia1 L-1A 
petition, particularly in light of the petitioner's considerable growth in the three intervening years. 
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. 
§ 214.2(1)(3)(ii). The petitioner's description of the job duties must clearly describe the dut:~es 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. The AAO recognizes that the petitioner in this matter specified that the 
beneficiary will be employed in a managerial position as defined under section 101(a)(44)(A) of the Act, and 
notes that the director incorrectly utilized the terms "manager" and "executive" interchangeably in her 
decision. 
Specifically, the petitioner has clearly articulated it claim that the beneficiary will serve as a function manager 
within its organization. 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 an organization. See section 101(a)(44)(A) of the Act, 8 U.S.C. § 1101(a)(44)(A)(ii). If a 
petitioner claims that the beneficiary is managing an essential function, the petitioner must 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. In addition, the petitioner must 
SRC 03 154 50344 
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provide a comprehensive and detailed description of the beneficiary's daily duties demonstrating that the 
beneficiary manages the function rather than performs the duties related to the function. An employee who 
primarily performs the tasks necessary to produce a product or to provide services is not considt:red to be 
employed in a managerial or executive capacity. Matter of Church Scientology Irzternational, 19 I&N Dec. 
593,604 (Comm. 1988). 
In this matter, the petitioner has not provided evidence that the beneficiary would in fact manage an essential 
function, rather than perform the routine duties related to the function. The beneficiary is described as being 
responsible for "overall management of all data processing activities" and overseeing the company's 
computer systems, but no other management-level duties are provided. It is clear from the record the 
beneficiary is directly responsible for all day-to-day EDP-related activities, including implementation of data 
processing solutions, data input and storage, production of MIS reports, creation of in-house promotional 
activities, maintenance of the company web site, updating software, and maintenance of the petitioner's 
computers and peripherals. The petitioner states that the beneficiary manages the "graphics departinent" but 
there is no supporting evidence on record that the company has a graphics department. Further, the 
organizational chart in response to the director's request for evidence reveals that there is another level of 
management above the beneficiary that holds responsibility for accounts, administration and EDP activities. 
Although the petitioner claims the beneficiary reports to this manager only "administratively," and "has 
control and authority" over the EDP function, there is no corroborative evidence of the beneficiary's 
discretionary authority over the function, nor evidence to support petitioner's claim that the beneficiary 
functions at a senior level within the organizational hierarchy or with respect to the function managed. 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. Comin. 1972). 
The actual job duties themselves reveal the true nature of the employment. Fedin Bros. Co., Ltd. v. Sava, 724 
F. Supp. 1103, 1108 (E.D.N.Y. 1989), afS'd, 905F.2d41 (2dCir. 1990). 
Whether the beneficiary is a managerial employee turns on whether the petitioner has sustained its burden of 
proving that his duties are "primarily" managerial. See section 101(a)(44)(A) of the Act. 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 includling both 
managerial and operational tasks, but fails to quantify the time the beneficiary spends on them. This failure of 
documentation is important because virtually all of the beneficiary's daily tasks as described by the petitioner, 
such as troubleshooting computers and peripherals, maintaining a web site, obtaining software updates, and 
data entry, do not fall directly under traditional managerial duties as defined in the statute. For th~s reason, 
the AAO cannot determine whether the beneficiary is primarily performing the duties of a function manager. 
See IKEA US, I~c. V. U.S. Dept. of Justice, 48 F. Supp. 2d 22,24 (D.D.C. 1999). 
On appeal, counsel for the petitioner questions the director's utilization of staffing levels as a factor in 
determining whether the beneficiary is employed in a managerial capacity. See section 101(a)(44)(C) of the 
Act, 8 U.S.C. 5 1101(a)(44)(C). Counsel asserts that the petitioner is not using staffing levels to determine 
the beneficiary's classification as a manager, and that the director inappropriately applied this standard. In 
addition, counsel contends that it is clear from precedent decisions of the AAO that staffing levels need not be 
used as a determining factor in order to qualify for the L-1A classification. Counsels cites A4atter of 
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Vaillancourt, 13 l&N Dec. 654 (Reg. Comm. 1970); Matter of Bocris, 13 1&N Dec. 601 (Reg. Comm. 1970); 
and Matter of Pozzoli, 14 I&N Dec. 569 (Reg. Cornrn. 1974), as examples of cases in which CIS found the 
job offered to the beneficiary to be managerial without a discussion of the job duties or levels of supervision. 
However, counsel did not furnish evidence to establish that the facts of the instant petition are analogous to 
those in the cited matters. Going on record without supporting documentary evidence is not sufficient for 
purposes of meeting the burden of proof in these proceedings. See Matter of Treasure Craft of Cal(fornia, 14 
I&N Dec. 190 (Reg. Comrn. 1972). Furthermore, the AAO notes that none of the cited precedent decisions 
turned on the qualifying nature of the beneficiary's job duties, thus a discussion of job duties or levels of 
supervision was understandably absent at the appellate level. It appears that counsel has miscon:;trued the 
findings of these decisions and his reliance on these precedents in this matter is not persuasive. It is noted that 
counsel also cites two unpublished AAO decisions on appeal. However, while 8 C.F.R. 5 103.3(c;1 provides 
that precedent decisions are binding on all CIS employees in the administration of the Act, unpublished 
decisions are not similarly binding. Accordingly, the AAO need not and does not consider the findings of the 
non-precedent decisions cited by counsel. 
On appeal, counsel further states that even if staffing levels are considered, the Act at section 101(a)(44)(C) 
states that the reasonable needs of the organization should also be considered. However, rather than 
discussing the organization's reasonable needs in terms of staffing, counsel goes on to note the significant 
growth in sales experienced by the petitioner and submits that the responsibilities of the data processing 
department have likewise increased, making the function even more essential to the operation of the business. 
The AAO does not doubt that the petitioner has a need for the services provided by the beneficiary, or that the 
beneficiary performs duties that are critical to the business. However, the petitioner has not indicated that any 
other employee is directly responsible for any of the routine data processing, systems and computer 
maintenance tasks of the business, and although it is claimed that the beneficiary supervises an "assistant 
manager," the petitioner does not indicate that the beneficiary performs any personnel related tasks. Further, 
the beneficiary's claimed subordinate apparently performs shipping and customer service tasks which are 
wholly unrelated to the EDP function. Despite counsel's assertions on appeal that the beneficiary manages the 
EDP function, the mere fact that the beneficiary is the sole employee performing activities included in the 
EDP function does not make him the "manager" of the function by CIS definitions. To qualify as a. function 
manager under section 101(a)(44)(A) of the Act, the beneficiary must be shown through probative evidence to 
exercise discretionary authority over the day-to-day operations of the function managed, and to fun-t' , ion at a 
high level within the company's organizational hierarchy. Without documentary evidence to support the 
claims, the assertions of counsel will not satisfy the petitioner's burden of proof. The assertions of counsel do 
not constitute evidence. Matter of Obaigbena, 19 l&N Dec. 533, 534 (BIA 1988); Matter of Laureano, 19 
I&N Dec. 1 (BIA 1983); Matter of Ramirez-Sanchez, 17 I&N Dec. 503,506 (BIA 1980). 
Moreover, the reasonable needs of the petitioner will not supersede the requirement that the beneficiary be 
"primarily" employed in a managerial or executive capacity as required by the statute. See sections 
101(a)(44)(A) and (B) of the Act, 8 U.S.C. 1101(a)(44). The reasonable needs of the beneficiary miiy justify 
a beneficiary who allocates 51% of his duties to managerial or executive tasks as opposed to 90%, but those 
needs will not excuse a beneficiary who spends a majority of his or her time on non-qualifying duties, as is 
the case in the instant petition. 
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Finally, counsel for the petitioner has noted that CIS approved the initial petition filed on behalf of the 
beneficiary. The director's decision does not indicate whether she reviewed the prior approval of the other 
nonimmigrant petition. If the previous nonimmigrant petition was approved based on the same unsupported 
assertions that are contained in the current record, the approval would constitute material and gross error on 
the part of the director. The AAO is not required to approve applications or petitions where eligibility has not 
been demonstrated, merely because of prior approvals that may have been erroneous. See, e.g. Matter of 
Church Scientology International, 19 I&N Dec. 593, 597 (Comm. 1988). It would be absurd to suggest that 
CIS or any agency must treat acknowledged errors as binding precedent. Sussex Engg. Ltd. v. Montgonzery, 
825 F.2d 1084, 1090 (6th Cir. 1987), cert. denied, 485 U.S. 1008 (1988). 
Furthermore, the AAO's authority over the service centers is comparable to the relationship between a court 
of appeals and a district court. Even if a service center director had approved the nonimmigrant petitions on 
behalf of the beneficiary, the AAO would not be bound to follow the contradictory decision of a service 
center. Louisiana Philharnaonic Orchestra v. INS, 2000 WL 282785 (E.D. La.), affd, 248 F.3d 1135) (5th Cir. 
2001), cert. denied, 122 S.Ct. 5 1 (2001). 
On review, the record as presently constituted is not persuasive in demonstrating that the beneficiary has been 
or will be employed in a primarily managerial capacity. The record does not establish that a majority of the 
beneficiary's duties have been or will be directing the management of an essential functio'n of the 
organization, as claimed by the petitioner. CIS is not compelled to deem the beneficiary to be a manager 
simply because the beneficiary possesses a managerial job title. The record indicates that a preponderance of 
the beneficiary's duties have been and will be directly performing the operations of the EDP function, 
including personally performing all routine data processing, systems maintenance and computer 
troubleshooting activities for the company. 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. 5 1361. Here, that burden has not been met. 
ORDER: The appeal is dismissed.