dismissed L-1A Case: Diesel Engine Parts

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PUBLIC COW 
US. Department of Homeland Seclirity 
20 Massachusetts Ave. N.W., Rm. 3000 
Washington. DC 20529 
U.S. Citizenship 
and Immigration 
Services 
File: WAC 08 041 52017 Office: CALIFORNIA SERVICE CENTER Date: SEP 3 0 2008 
JN RE: 
Petition: 
 Petition for a Nonimrnigrant Worker Pursuant to Section 10 1 (a)(15)(L) of the 
Immigration and Nationality Act, 8 U.S.C. 9 1 10 1 (a)(15)(L) 
JN 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. 
Administrative Appeals Office 
WAC 08 041 52017 
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 extend the employment of the beneficiary as its 
president 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. 8 1101(a)(15)(L). The petitioner, a corporation 
organized in the State of California, is engaged in the import and export of diesel engine parts. The 
petitioner claims that it is the subsidiary of B & J Trading Co., SRL, located in Bucharest, Romania. The 
beneficiary was initially granted one year in L-1A status in order to open a new office and the petitioner 
seeks to continue the beneficiary's employment for two additional years.1 
On May 1, 2008, 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. 
Specifically, the director noted that the beneficiary appeared to be engaged primarily in the performance 
of marketing functions for the petitioner, duties which were traditionally not deemed to be managerial or 
executive in nature. Consequently, the director concluded that the beneficiary was performing many 
non-qualifying, day-to-day tasks of the business, and was thus not acting primarily as a manager or 
executive as required by the regulations. 
On appeal to the AAO, the petitioner contends that the director's decision in this matter was erroneous, 
and contends that the approval of the initial petition for this beneficiary warrants approval of the request 
for extension. Counsel focuses on the position description of "president" as outlined in the petitioner's 
by-laws, and submits a brief in support of the beneficiary's eligibility. 
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. 
 214.2(1)(3) states that an individual petition filed on Form 1-129 shall be 
accompanied by: 
1 
 In the present case, the beneficiary's authorized period of stay expired on September 30, 2006. 
However, the petition for an extension of the beneficiary's L-1A status was filed on November 26, 2007, 
over one year following the expiration of the beneficiary's status. Although counsel claims to have filed a 
timely extension request with CIS on September 29, 2006 and that the filing was lost, CIS had no record 
of such a filing made by the petitioner in 2006. 
WAC 08 041 5201 7 
Page 3 
(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 employment 
abroad with a qualifying organization within 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 education, training, and employment qualifies himiher 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 regulation at 8 C.F.R. 5 214.2(1)(14)(ii) also provides that a visa petition, which involved the opening 
of a new office, may be extended by filing a new Form 1-129, 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 (l)(l)(ii)(H) of this section for the previous year; 
(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 management or executive 
capacity; and 
(E) 
 Evidence of the financial status of the United States operation. 
The 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. 5 1101(a)(44)(A), defines the term "managerial capacity" as 
an assignment within an organization in which the employee primarily: 
WAC 08 041 52017 
Page 4 
(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. § 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 request for extension, filed on Form 1-129 on November 26, 2007, indicated that the petitioner 
currently employed one person, and that the beneficiary, in addition to acting as president, would serve as 
the petitioner's marketing director. In a letter of support dated October 22, 2007, the petitioner provided 
a brief overview of the beneficiary's position in the United States. The petitioner stated as follows: 
[The beneficiary] is continually striving to set up channels of distribution and marketing for 
Mefin and Hidrojet products, as their exclusive distributor in the U.S. His plans are to 
continue establishing distribution agreements with the various manufactures of the Arnerican- 
made road construction machinery which exist in Romania and UAE in order to supply parts 
for the machinery. As promised, [the beneficiary] is also endeavoring to establish repair and 
service facilities for the repair of injection pumps for diesel engines at appropriate locations 
in theU.S. 
WAC 08 041 52017 
Page 5 
[The beneficiary] has had a key role in the expansion plans, and his continuing presence is 
essential to [the petitioner's] continued establishment and expansion into the projected areas. 
It is anticipated that establishing [the petitioner] successhlly and fully operational will be 
completed by November 2009. At the time of completion, [the beneficiary] will be 
transferred back to the parent company to resume his important role as Marketing Director . . 
The petitioner also submitted copies of its Foms 1 120, US. Corporation Income Tax Return for the years 
2005 and 2006, both of which indicated that no salaries or wages had been paid in either year. 
On January 2, 2008, the director issued a request for evidence. Specifically, the director requested 
additional evidence to establish that the beneficiary will be employed in a managerial or executive 
capacity, including but not limited to a comprehensive overview of the beneficiary's duties, an 
organizational chart for the petitioner, and position descriptions and job titles for all of beneficiary's 
subordinates, and the amount of time the beneficiary allocated to managerial/executive functions in 
comparison to the time allocated to non-qualifying functions. 
In a response dated March 25, 2008, the petitioner submitted an updated overview of the beneficiary's 
duties. Specifically, the petitioner stated: 
[The beneficiary] will devote virtually all of his time in the United States to the management 
of the U.S. business (he has already setup office operations and a business location and 
conducted limited business), research and continue to establish relationships with various 
parts suppliers and parts distributors in the U.S. He will continue his endeavor at setting up 
channels of distribution and marketing for Mefin and Hidrojet products. He will also 
establish contacts in North Carolina and implement various marketing techniques in order to 
supply parts for the Fiat tractors in North Carolina. He will be seeking to establish 
distribution agreements with the various manufactllrers of the American-made road 
construction machinery which exist in Romania and UAE in order to supply parts of the 
machinery. He will also be hiring and overseeing employment of additional sales personnel 
if needed. 
The petitioner also claimed that it employed s the secretary of the corporation. The 
petitioner claimed that her duties included secretarial work such as handling sales calls, tax and IRS 
paperwork and corporate filings. 
On May 1, 2008 the director denied the petition. The director noted specifically that the primary focus of 
the beneficiary's duties was on marketing, duties which are not traditjonally included in the realm of 
managerial or executive duties. The director concluded that the beneficiary was thus responsible for the 
performance of the services of the company and therefore was not qualified for the benefit sought. 
WAC 08 041 52017 
Page 6 
On appeal, counsel relies on the title and description of the duties of president as set forth in the 
petitioner's by-laws. In addition, counsel paraphrases the regulatory definitions in this context to show 
the similarities in the descriptions of positions. Finally, counsel questions why the extension was subject 
to denial when the initial petition was approved based on the same set of facts. 
Upon review, the AAO concurs with the director's findings. 
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 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 
beneficiaryprimarib performs these specified responsibilities and does not spend a majority of his or her 
time on day-to-day functions. Champion World, Inc. v. INS, 940 F.2d 1533 (Table), 1991 WL 144470 
(9th Cir. July 30, 1991). 
In this matter, the petitioner provided a basic description of duties for the beneficiary, which essentially 
state that he is the marketing director of the petitioner and is responsible for securing distribution 
agreements for various Mefin and Hidrojet products. His stated goals are to continue negotiating 
marketing agreements and eventually create repair and service facilities in the United States for these 
products. While the beneficiary clearly has a large amount of responsibility for the petitioner, the tasks he 
performs are not managerial or executive as contemplated by the regulations. 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 Int'l., 19 I&N Dec. 593, 604 (Comm. 1988). In this matter, the petitioner 
does not dispute that these marketing functions are the beneficiary's primary focus in the United States. 
The actual duties themselves reveal the true nature of the employment. Fedin Bros. Co., Ltd. v. Suva, 724 
F. Supp. 1 103, 1 108 (E.D.N.Y. 1989), affd, 905 F.2d 41 (2d. Cir. 1990). 
Moreover, although the petitioner claims to employ a secretary, there is no evidence such as payroll 
records or W-2 forms evidencing wages paid to this employee. Nevertheless, the secretarial duties 
described in her brief job description indicate that even if the evidence established her current 
employment with the petitioner, she would serve merely as secretarial support for the beneficiary, and not 
act as a sales person or marketing consultant such that the beneficiary could be relieved from performing 
the non-qualifying marketing tasks that are identified in the petition. 
On appeal, the petitioner relies upon the position descriptions for president and chief financial offllcer as 
outlined in the petitioner's bylaws. However, these generic position overviews do little to illuminate the 
true nature of the beneficiary's position that counsel alleges the director to have overlooked. Instead, they 
merely address the similarities in the position descriptions and the regulatory definitions, but do little to 
convince the AAO that the beneficiary will refi-ain from performing non-qualifying marketing tasks. 
Specifics are clearly an important indication of whether a beneficiary's duties are primarily executive or 
WAC 08 041 5201 7 
Page 7 
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). 
Finally, counsel alleges that the extension request should be approved in accordance with the initial new 
office petition previously approved for this beneficiary. The AAO disagrees. In the prior petition, the 
petitioner indicated that it was a new office, and the petition was adjudicated under the relevant 
regulations for new offices. See 8 C.F.R. $ 214.2(1)(3)(v). In the present matter, the petitioner is no 
longer a new office, and the regulation at 8 C.F.R. 214.2(1)(3)(v) does not apply. As the petitioner is 
requesting a first extension after the opening of a new office, the petitioner must now satisfy its burden 
under the regulation at 8 C.F.R. 214.2(1)(14)(ii) in order to establish eligibility. Accordingly, the fact that 
the petitioner is no longer a new office, and is now requesting a first extension after opening a new office, 
represents a changed circumstance. In fact, the director had a duty to carefully examine the present 
petition and render a full adjudication, as the petitioner has new regulatory requirements in the present 
proceeding that did not apply to the prior petition. See 8 C.F.R. 5 214.2(1)(14)(ii). The director's close 
analysis and detailed request for evidence were appropriate in light of the petitioner's evidentiary burden. 
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 or executive capacity. The petitioner indicates that it 
plans to hire additional sales persons and employees. However, 8 C.F.R. 8 214,2(1)(3)(v)(C) allows the 
intended United States operation one year within the date of approval of the 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. The approval of an initial new office petition anticipates that a 
petition will grow to the point where it can employ the beneficiary in a qualifying capacity. In the instant 
matter, however, 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. 
Moreover, the record does not contain sufficient evidence that the petitioner has been engaged in the 
regular, systematic, and continuous provision of goods andlor services in the United States for the entire 
year prior to filing the petition to extend the beneficiary's status. The petitioner claims that the business 
dealings of the petitioner were put on hold for the past year due to the fact that CIS allegedly lost the 
petitioner's request for extension. The petitioner has submitted insufficient evidence to establish that 
such a petition was filed, and even if counsel's assertions are true, a normal business would not suspend 
its dealings for more than a year due to a lost file. There is no evidence that the petitioner made inquiries 
as to the status of this allegedly lost filing, and the AAO does not accept that a newly-established 
fledgling business would elect to suspend its operations voluntarily for over one year. 
Pursuant to the regulation at 8 C.F.R. 6 214.2(1)(14)(ii)(B), the petitioner is expected to submit evidence 
that it has been doing business for the previous year. In the instant case, there is no evidence that the 
petitioner was doing business during 2007. In fact, the evidence indicates that the beneficiary was not 
present in the United States during 2007. For this additional reason the petition may not be approved. 
WAC 08 041 52017 
Page 8 
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. Supp. 2d 1025, 1043 (E.D. Cal. 2001), 
affd. 345 F.3d 683 (9th 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. $ 1361. Here, that burden has not been met. 
ORDER: The appeal is dismissed.