dismissed L-1A Case: Diamond Trade

U.S. Department of Homeland Security 
20 Massachusetts Ave., N.W., Rm. A3000 
Washington, DC 20529 
File: EAC 05 800 18965 Office: VERMONT SERVICE CENTER Date: gc 0 5 2008 
Petition: 
 Petition for a Nonimmigrant Worker Pursuant to Section 10 1 (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. 
- --\ 
*#,z-;b- 
~obert"ETE&ann, Chief 
Administrative Appeals Office 
EAC 05 800 18965 
Page 2 
DISCUSSION: The Director, Vermont 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. 
The petitioner filed this nonimmigrant visa petition seeking to employ the beneficiary for a period of three 
years as its general manager as an L-1A nonimmigrant intracompany transferee pursuant to section 
10 1 (a)(15)(L) of the Immigration and Nationality Act (the Act), 8 U.S.C. 5 1 10 I(a)(15)(L). The petitioner is 
a corporation organized under the laws of the State of New 
 ngaged in the diamond 
trade. The petitioner claims a qualifying relationship with 
 td. of Israel. 
The director denied the petition concluding that the petitioner did not establish that the beneficiary will be 
employed in the United States, or has been employed abroad, 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, the petitioner asserts that the director erred in 
denying the petition because the record establishes that the beneficiary will be, and has been, employed 
primarily as an executive or manager. 
To establish eligibility for the L-1 nonirnrnigrant 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. 4 214.2(1)(3) states that an individual petition filed on Form 1-129 shall be 
accompanied by: 
(i) 
 Evidence that the petitioner and the organization which employed or will employ the 
alien are qualifying organizations as defined in paragraph (l)(l)(ii)(G) of this section. 
(ii) 
 Evidence that the alien will be employed in an executive, managerial, or specialized 
knowledge capacity, including a detailed description of the services to be performed. 
(iii) 
 Evidence that the alien has at least one continuous year of full time employment 
abroad with a qualifying organization within the three years precehng 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 
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. 
EAC 05 800 18965 
Page 3 
The first 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. 8 1 101(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. 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, 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. 
The petitioner does not clarify whether the beneficiary is claiming to be primarily engaged in managerial 
duties under section 10 1 (a)(44)(A) of the Act or primarily executive duties under section 10 1 (a)(44)(B) of the 
Act, and implies that the beneficiary will be acting as both an executive and a manager. A beneficiary may 
not claim to be employed as a hybrid "executive/managertl and rely on partial sections of the two statutory 
definitions. If the petitioner is indeed representing the beneficiary as both an executive and a manager, it 
must establish that the beneficiary meets each of the four criteria set forth in the statutory definition for 
executive and the statutory definition for manager. Given the ambiguity, the AAO will consider the appeal as 
EAC 05 800 18965 
Page 4 
if the petitioner is asserting that the beneficiary will be employed primarily as either an executive or a 
manager. 
The petitioner described the beneficiary's proposed duties in a letter dated April 1, 2005 appended to the 
initial petitioner as follows: 
Direct, formulate, and coordinate marketing activities and policies to promote products and 
services, working with advertising and promotion managers. 
Direct the gathering of information as to competitors['] diamond trade and pricing. 
Direct the sales and review regularly financial reports to ensure that sales persons (both 
employees and sub contractors) perform as required. 
Oversee the logistics of importing, custom clearing, shipping, handling returns, and handling 
security to ensure that the inventory is not being tampered with. 
Meet from [time] to time with accountant, bank representatives, the company's owners. 
Initiate financial statements and review them on a regular basis. 
Direct clerical staff to keep records of export correspondence, bid requests, and credit 
collections, and to maintain current information on tariffs, licenses, and restrictions[.] 
Direct the hiring, training, and performance evaluations of marketing and sales staff and 
oversee their daily activities. 
Hires staff and ensures that the staff is trained appropriately and that the customers['] 
satisfaction is on a high standard. 
Direct the sales department to compile sales forecasting and strategic planning in order to 
ensure the sale and profitability of products, lines, or services, analyzing business 
developments and monitoring market trends. 
In his performance as general manager, [the beneficiary] will have independent discretion to 
make decisions. 
The petitioner also provided an organizational chart for the United States operations showing the general 
manager at the top of the organization supervising two employees, including a sales manager who, in turn, is 
shown supervising three salespersons. However, the wage reports provided by the petitioner for the quarter 
immediately preceding the filing of the petition fail to identify any of the salespersons and indicate that the 
petitioner employed three people during that quarter, the sales manager, the administrator, and a third 
employee not identified on the organizational chart. 
EAC 05 800 18965 
Page 5 
On April 13, 2005, the director requested additional evidence. The director requested, inter alia, details 
regarding the beneficiary's job duties, a description of the subordinate employees' duties, and an explanation 
as to how much discretionary authority the beneficiary will have over day-to-day operations. 
In response, the petitioner asserts in a letter dated May 4, 2005 that the beneficiary is an "executivelgeneral 
manager, or a functional manager, based on his job duties and qualifications." The petitioner also provided a 
breakdown of the beneficiary's duties in which the petitioner claims that the beneficiary will spend over 75% 
of his time worhng with the sales manager on Issues such as pricing, transactions, and customer needs; 
directing clerical staff, conducting staff meetings; directing administration and logistics personnel; and 
meeting with the accountant, bankers, the bookkeeper, and the owners. The rest of the time is dedicated to 
training, hiring, setting goals, marketing, and reviewing financial reports. 
Finally, the petitioner asserts that the beneficiary will have independent discretion to make decisions and 
provides the following job description for the sales manager: 
[The sales manager dlirects the sales force (employees and contractors); Meets with sales 
persons and discuss sales strategies; Meets with store owners and arranges attractive display 
of the company's merchandise; Hires sales representatives in other regions of the country; 
ensures that the company distributes merchandise in a timely fashion; Guides the staff in 
storing and shipping of merchandise. Negotiates with customers, prices, terms of payment 
and shipping, custom issues; Searches for new employees, hires and fires employees; Sets 
working procedures and trains employees. Supports the logistics whether the activities were 
done by company's personnel or outside contractors; shipping companies, custom agents, 
insurance. 
On May 20, 2005, the director denied the petition. The director determined 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 to the petitioner asserts that the director erred in denylng the petition because the record 
establishes that the beneficiary will be employed primarily as an executive or manager. Specifically, counsel 
to the petitioner asserts that the beneficiary will manage an essential function of the organization, i.e., the 
importation and sale of diamonds, or will be an executive. 
Upon review, the petitioner'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 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. As explained above, a petitioner 
cannot claim that some of the duties of the position entail executive responsibilities, while other duties are 
managerial. A beneficiary may not claim to be employed as a hybrid "executive/manager" and rely on partial 
sections of the two statutory definitions. 
EAC 05 800 18965 
Page 6 
The petitioner has failed to establish that the beneficiary will act in a "managerial" capacity. In support of its 
petition, the petitioner has provided a vague and nonspecific description of the beneficiary's duties that fails 
to demonstrate what the beneficiary will do on a day-to-day basis. For example, the petitioner states that the 
beneficiary's duties will include directing marketing and establishing goals. The petitioner did not, however, 
specifically define what marketing activities are being pursued or what goals are being established. 
Moreover, while the petitioner asserts that many of the beneficiary's duties will require the services of 
subordinates such as administrative and logistical personnel, a clerical staff, a bookkeeper, an accountant, and 
advertising experts, the petitioner fails to provide any information regarding the identity, or even the 
existence, of such employees or subcontractors. As the record indicates that the petitioner employs three 
people, it appears that the petitioner does not employ the support personnel necessary to perform the non- 
managerial or non-executive tasks necessary to perform the duties identified as the responsibility of the 
beneficiary. Duties such as website design, marketing, gathering information on competitors, bookkeeping, 
and diamond importing are not managerial in nature. An employee who "primarily" performs 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). 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. Comm. 1972). 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. Suva, 724 F. 
Supp. 1103 (E.D.N.Y. 1989), afd, 905 F.2d 41 (2d. Cir. 1990). 
The petitioner also failed to establish that the beneficiary will supervise and control the work of other 
supervisory, professional, or managerial employees, or that he will manage an essential function within the 
organization. While the petitioner did supply an organizational chart, the job description provided for the 
subordinate "sales manager" reveals that this employee performs the tasks necessary to produce a product or 
to provide a service. The job description for the sales manager fails to establish that this employee has any 
supervisory or managerial duties. Not only does the job description list many non-qualifying operational or 
administrative tasks (i.e., negotiate with customers, sets working procedures, logistical support), the petitioner 
fails to provide a breakdown of how much time is spent by this employee performing such non-qualifying 
tasks. Finally, since the record is devoid of any evidence that the petitioner employs or otherwise 
compensates salespersons, it has not been established that the sales manager has any managerial 
responsibilities over subordinates. In view of the above, the beneficiary would appear to be a first-line 
supervisor, the provider of actual services, or a combination of both. A managerial or executive 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. lOl(a)(44)(A)(iv) of the Act; see also Matter of Church 
Scientology International, 19 I&N Dec. at 604. Moreover, the job descriptions provided for the subordinate 
employees do not establish that they are professionals.' Therefore, the record does not prove that the 
beneficiary will be acting in a managerial capacity. 
1 
In evaluating whether the beneficiary manages professional employees, the AAO must evaluate whether the 
subordinate positions require a baccalaureate degree as a minimum for entry into the field of endeavor. 
Section 101 (a)(32) of the Act, 8 U.S.C. 5 1 10 1 (a)(32), states that "@]he term profession shall include but not 
EAC 05 800 18965 
Page 7 
Also, the petitloner has not established that the beneficiary will manage an essential function of the 
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 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 will manage 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. fj 214.2(1)(3)(ii). In addition, the petitioner's description of the beneficiary's daily 
duties must demonstrate that the beneficiary will manage the function rather than perform the duties related to 
the function. In this matter, the petitioner has not provided evidence that the beneficiary will manage an 
essential function. The petitioner's vague job description, which includes operational and administrative 
tasks and indicates that he will likely have first-line supervisor responsibilities, fails to document what 
proportion of the beneficiary's duties would be managerial functions and what proportion would be non- 
managerial. 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 would be managerial, nor can it deduce 
whether the beneficiary will primarily perform the duties of a bction manager. See IKEA US, Inc. v. US. 
Dept. of Justice, 48 F. Supp. 2d 22,24 (D.D.C. 1999). 
Similarly, the petitioner has failed to prove that the beneficiary will act in an "executive1' 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. As indicated above, the petitioner has failed to prove that the 
beneficiary, who is allegedly managing employees who are apparently engaged in providing services to 
customers and who is primarily engaged in performing administrative or operational tasks, will be acting 
primarily in an executive capacity.' 
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. 817 (Comrn. 1988); Matter of ling, 13 I&N Dec. 35 (R.C. 1968); 
Matter ofshin, 11 I&N Dec. 686 (D.D. 1966). 
21t should be noted that, on appeal, counsel to the petitioner provided a letter dated July 12,2005 purporting to 
vest the beneficiary with substantial authority to direct the management of the United States operation. In 
EAC 05 800 18965 
Page 8 
Accordingly, the petitioner has not established that the beneficiary will be employed in a primarily managerial 
or executive capacity as required by 8 C.F.R. 8 214.2(1)(3). 
The second issue in the present matter is whether the beneficiary has been employed by the overseas entity in 
a primarily managerial or executive capacity. 
The overseas employer described the beneficiary's proposed duties in a letter dated April 1,2005 appended to 
the initial petitioner as follows: 
Coordinate sales distribution by establishing sales territories, quotas and goals; 
Monitor customer preferences to determine focus of sale efforts; 
Confer or consult with department heads to plan advertising services and to secure 
information on merchandise and customer specifications; 
Allocate areas to sales persons; 
Represent company at trade association meetings to promote products; 
Plan and direct staffing, training, and performance evaluations to develop and control sales 
and service programs; 
Review operational records and reports to project sales and determine profitability; 
Determine price schedules and discount rates; 
 I 
Maintain detailed knowledge of the company's products; 
Resolve customer complaints regarding sales and service. 
The petitioner also provided an organizational chart for the foreign employer indicating that the beneficiary 
oversees an assistant sales manager who, in turn, oversees three salespersons. 
On May 20, 2005, the director denied the petition. The director determined that the petitioner did not 
establish that the beneficiary has been employed abroad in a primarily managerial or executive capacity. 
view of the Request for Evidence, 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. The petitioner 
failed to submit the requested evidence and now submits it on appeal. However, the AAO will not consider 
this evidence for any purpose. See Matter of Soriano, 19 I&N Dec. 764 (BIA 1988); Matter of Obaigbena, 19 
I&N Dec. 533 (BIA 1988). In any event, such self-serving evidence would not establish that the beneficiary 
will be primarily employed as an executive. 
EAC 05 800 18965 
Page 9 
On appeal, counsel to the petitioner does not directly discuss the director's determination that the petitioner 
has not established that the beneficiary has been employed abroad in a primarily managerial or executive 
capacity. 
Upon review, the AAO concurs with the director's decision and affirms the denial of the petition on this basis. 
As explained above, 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 to be performed by the beneficiary and indicate 
whether such duties are either in an executive or managerial capacity. Id. 
The petitioner has failed to establish that the beneficiary has been acting in a "managerial" capacity for the 
foreign employer. In support of its petition, the petitioner has provided a vague and nonspecific description of 
the beneficiary's duties that fails to demonstrate what the beneficiary does on a day-to-day basis. Moreover, 
many of the tasks listed are non-qualifying administrative or operational tasks and are not managerial or 
executive duties. For example, establishing sales territories, monitoring customer preferences, attending trade 
association meetings, setting prices, and resolving customer complaints are not qualifying managerial duties. 
Absent a credible breakdown establishing how much time the beneficiary spends performing these non- 
qualifying duties, the AAO cannot determine whether the beneficiary is primarily employed in a managerial 
capacity. An employee who "primarily" performs 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 ofchurch Scientology International, 19 I&N Dec. at 604. 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. 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., 724 F. Supp. 1 103, aff'd, 905 F.2d 41. 
The petitioner also failed to establish that the beneficiary has been supervising and controlling the work of 
other supervisory, professional, or managerial employees, or that he has been managing an essential function 
within the organization. While the petitioner did supply an organizational chart, the petitioner did not provide 
a job description for the subordinate employee purported to have managerial or supervisory duties. 
Therefore, the petitioner has not established that the assistant sales manager is truly a supervisory or 
managerial employee. Absent this crucial evidence, the beneficiary would appear to be a first-line supervisor, 
the provider of actual services, or a combination of both. A managerial or executive 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. Moreover, the job descriptions provided for the subordinate employees do 
not establish that they are professionals. Therefore, the record does not prove that the beneficiary has been 
acting in a managerial capacity.3 
3~hile the petitioner has not specifically alleged that the beneficiary manages an essential function overseas, 
the record would not support this assertion. The petitioner's vague job description, which includes 
EAC 05 800 18965 
Page 10 
Similarly, the petitioner has failed to prove that the beneficiary has been acting in an "executive" capacity. As 
indicated above, the petitioner has failed to prove that the beneficiary, who is allegedly managing employees 
who are apparently engaged in providing services to customers and who is primarily engaged in performing 
administrative or operational tasks, has been acting primarily in an executive capacity. 
Accordingly, the petitioner has failed to establish that the beneficiary has been employed abroad in a 
primarily managerial or executive capacity as required by 8 C.F.R. 5 214.2(1)(3)(iv). 
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. Accordingly, the 
appeal will be dismissed. 
ORDER: The appeal is dismissed. 
operational and administrative tasks and indicates that he will likely have first-line supervisor responsibilities, 
fails to document what proportion of the beneficiary's duties are managerial functions and what proportion are 
non-managerial. 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 are managerial, nor can it deduce whether the 
beneficiary is primarily performing the duties of a function manager. See IKEA US, Inc., 48 F. Supp. 2d at 
24.