dismissed L-1A Case: Diesel Parts Sales And Services

U.S. Department of Homeland Security 
20 Mass. Ave, N.W., Rm. A3042 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
File: SRC 03 226 5 1713 Office: TEXAS SERVICE CENTER Date: MAY 11 2005 
Petition: Petition for a Nonimmigrant Worker Pursuant to Section 10 1 (a)(15)(L) of the Immigration 
and Nationality Act, 8 U.S.C. tj 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. 
Administrative Appeals Office 
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DISCUSSION: The Director, Texas 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 its general 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 
Florida that is engaged in the export and sale of diesel injection parts and equipment and the provision of 
kitchen exhaust system cleaning services. The petitioner claims that it is the subsidiary of T.R. Diesel 
Inyeccion, C.A., located in Valencia, Venezuela. The beneficiary was initially granted a one-year period of 
stay and subsequently granted a two-year extension. The petitioner now seeks to extend the beneficiary's stay 
for an additional two years. 
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 MO for review. On appeal, the petitioner alleges that the beneficiary's duties 
are in fact managerial in nature, and in support of this contention, the petitioner submits a brief and additional 
evidence. 
To establish eligibility for the L-1 nonimmigrant visa classification, the petitioner must meet the criteria 
outlined in section 10 1 (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 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 
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education, training, and employment qualifies himher to perform the intended 
services in the United States; however, the work in the United States need not be the 
same work which the alien performed abroad. 
The primary issue in this 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 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. 
With the initial petition, counsel for the petitioner submitted the following description of the beneficiary's job 
duties: 
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a. Made the sales contracts with the customers. 
b. Coordinate date and time of each service. 
c. Give instruction to supervisor. 
d. Buy supplies. 
e. Report to Vice- president. 
The director found this list to be insufficient to establish that the beneficiary was acting in a primarily 
managerial or executive capacity. Consequently, the director issued a request for additional evidence on 
September 18, 2003. In the request, the director requested a definitive statement regarding the U.S. 
employment of the beneficiary, including the percentage of time he spent on each duty, a description of duties 
for the beneficiary's co-workers and subordinates, and the qualifications for such positions. 
In a response dated December 1 1, 2003, counsel submitted a letter from the petitioner dated December 4, 
2003, which presented the following description of the beneficiary's position. 
LIST OF DUTIES & PERCENTAGE OF TIME IN EACH DUTY HRSIWEEK ?Ao 
PLANNING THE SALES AND CREDIT POLICY STRATEGIES. 
DIRECT THE SALES PROMOTIONS AND COLLECTIONS. 
MANAGES & DIRECTS CUSTOMER SERVICE ACTIVITIES. 
MANAGING & PLANNING OF ALL PRODUCTIVE MATERIAL. 
MANAGES ALL IMPORT & EXPORT PURCHASES. 
MANAGES THE OFFICE ADMINISTRATION AND ACCOUNTING 
REVIEW OF SERVICE CONTRACTS BETWEEN COMPANIES AND 
LIABILITY & WORKERS COMP INSURANCE WITH OUR LEGAL 
ADVISOR. 
ANALIZE [sic] AND DISCUSS ALL THE ACCOUNTING FIGURES 
INCLUDING PROFIT LOSS SATEMENTS [sic] AND TAXES WITH 
OUR ACCOUNTING OFFICE. 
In addition, counsel indicated that three employees reported to the beneficiary; namely, a sales and service 
supervisor and two service technicians. Neither position required a bachelor's degree as a prerequisite to 
holding the position. 
On March 19, 2004 the director denied the petition. The director determined that the evidence in the record, 
despite the petitioner's detailed response to the request for evidence, failed to establish that the beneficiary 
functioned at a senior level within the organization. Specifically, the director concluded that the evidence was 
insufficient to show that the beneficiary supervised professional managerial or supervisory employees or that 
he was primarily engaged in managerial or executive activities. Finally, the director concluded that based on 
the evidence presented, the beneficiary was not supervising professional, supervisory, or managerial 
employees. 
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On appeal, the petitioner submits a lengthy statement, which addresses the regulatory definitions individually 
in relation to the beneficiary's qualifications. In addition, the petitioner submits an entirely new breakdown 
of the beneficiary's proposed duties, which dramatically differs from the one submitted in response to the 
request for evidence. 
The AAO, upon review of the record of proceeding, concurs with the director's finding. Specifically, upon 
review of the beneficiary's stated duties and the organizational structure under which he was intended to 
function, it appears that the beneficiary will not be acting in a primarily managerial or executive capacity. 
When examining the executive or managerial capacity of the beneficiary, the MO will look first to the 
petitioner's description of the job duties. See 8 C.F.R. $ 214.2(1)(3)(ii). Whether the beneficiary is a manager 
or executive employee turns on whether the petitioner has sustained its burden of proving that her duties are 
"primarily" managerial or executive. See sections 101(a)(44)(A) and (B) of the Act. Here, the petitioner 
claims that the beneficiary's duties are exclusively managerial and executive, yet the list of duties provided in 
response to the director's request for evidence includes a significant number of non-executive tasks. For 
example, the petitioner states that the beneficiary spends the majority of his time "directing the sales 
promotions and collections" of the company (25%) and "manag[ing] & direct[ing] customer service 
activities" (25%). In addition, the beneficiary's duties also included buying supplies, coordinating the date 
and time of each service, and making sales contracts with customers. Furthermore, the beneficiary is also 
charged with "manag[ing] all import and export purchases" (20%), and the AAO notes that no other 
employee is delegated with this task. Clearly, the beneficiary is performing client-related services that will 
create a basis for marketing the petitioner's product in the United States. 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 
(Comm. 1988). 
In the appeal brief, the petitioner summarizes the regulatory definition of both managerial and executive 
capacity in an attempt to demonstrate the executive nature of the beneficiary's duties. The petitioner 
concludes that the beneficiary's duties are qualifying, and refers to a newly submitted statement of duties. 
There are two problems with these assertions. First, although the petitioner concludes that the beneficiary is 
employed in a capacity that is primarily managerial and executive, there is no independent evidence to 
support this claim. In fact, the petitioner's statements regarding the beneficiary's duties on appeal appear to 
heavily paraphrase the regulatory definition of "executive capacity." Conclusory assertions regarding the 
beneficiary's employment capacity are not sufficient. Merely repeating the language of the statute or 
regulations does not satisfy the petitioner's burden of proof. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1 103, 
1108 (E.D.N.Y. 1989), affd, 905 F. 2d 41 (2d. Cir. 1990); Ayr Associates, Inc. v. Meissner, 1997 WL 
188942 at *5 (S.D.N.Y.). The actual duties themselves reveal the true nature of the employment. Fedin 
Bros., 724 F. Supp. at 1108. 
Second, the new statement of duties for the beneficiary which is submitted with the appeal brief is almost 
completely different than the statement submitted in response to the request for evidence. On appeal, a 
petitioner cannot offer a new position to the beneficiary, or materially change a position's title, its level of 
authority within the organizational hierarchy, or the associated job responsibilities. The petitioner must 
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establish that the position offered to the beneficiary when the petition was filed merits classification as a 
managerial or executive position. Matter of Michelin Tire Corp., 17 I&N Dec. 248, 249 (Reg. Comm. 1978). 
A petitioner may not make material changes to a petition in an effort to make a deficient petition conform to 
CIS requirements. See Matter of Izurnrni, 22 I&N Dec. 169, 176 (Assoc. Comm. 1998). For this reason, the 
newly submitted evidence will not be considered. 
Since by definition, it does not appear the statement of duties provided qualifies the beneficiary for the benefit 
sought, the AAO will alternatively look for the beneficiary's qualifications as a supervisor in a managerial 
capacity. The petitioner claims that the beneficiary supervises the other employees in the U.S. company. 
Although the beneficiary is not required to supervise personnel, if it is claimed that his duties involve 
supervising employees, the petitioner must establish that the subordinate employees are supervisory, 
professional, or managerial. See § 101(a)(44)(A)(ii) of the Act. 
The qualifications of each position were provided by the petitioner in response to the request for evidence. 
With regard to the service technicians, a minimum of three years of experience in the field was required. The 
sales and service supervisor position required knowledge of industrial safety equipment usage and 
regulations. However, no baccalaureate-level educational degrees were listed as requirements for the 
positions of the beneficiary's subordinates, such that they could be classified as professionals. Nor has the 
petitioner shown that any of these employees supervise subordinate staff members or manage a clearly 
defined department or function of the petitioner, such that they could be classified as managers or supervisors. 
Thus, the petitioner has not shown that the beneficiary's subordinate employees are supervisory, professional, 
or managerial, as required by section 10 l(a)(44)(A)(ii) of the Act. 
Finally on appeal, counsel alleges that the director erred by evaluating the size and operational status of the 
petitioner in determining whether the beneficiary was employed in a capacity that was primarily managerial 
or executive. Counsel correctly observes that a company's size alone, without taking into account the 
reasonable needs of the organization, may not be the determining factor in denying a visa to a multinational 
manager or executive. See section 101(a)(44)(C), 8 U.S.C. 3 1 101(a)(44)(C). However, it is appropriate for 
Citizenship and Immigration Services (CIS) to consider the size of the petitioning company in conjunction 
with other relevant factors, such as a company's small personnel size, the absence of employees who would 
perform the non-managerial or non-executive operations of the company, or a "shell company" that does not 
conduct business in a regular and continuous manner. See, e.g. Systronics Corp. v. INS, 153 F. Supp. 2d 7, 15 
(D.D.C. 2001). The size of a company may be especially relevant when CIS notes discrepancies in the 
record and fails to believe that the facts asserted are true. Id. 
The AAO notes that the petitioner relies heavily on Mars Jewelers, Inc. v. INS, 702 F. Supp. 1570 (N.D. Ga. 
1988), in support of the premise that the director erred in examining the size of the petitioning entity in 
reaching the decision. However, counsel fails to recognize or discuss the subsequent holding in Systronics, 
which, as discussed above, permits CIS to examine an entity's size in relation to the reasonable needs of the 
entity. Consequently, counsel's reliance on Mars Jewelers is misplaced and will not be considered for 
purposes of this analysis. In contrast to the broad precedential authority of the case law of a United States 
circuit court, the AAO is not bound to follow the published decision of a United States district court in 
matters arising within the same district. See Matter of K-S-, 20 I&N Dec. 715 (BIA 1993). Although the 
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reasoning underlying a district judge's decision will be given due consideration when it is properly before the 
AAO, the analysis does not have to be followed as a matter of law. Id. at 719. 
On review, the record as presently constituted is not persuasive in demonstrating that the beneficiary will be 
employed in a primarily managerial or executive capacity. For this reason, the petition may not be approved. 
In visa petition proceedings, the burden of proving eligbility 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 
director's decision will be affirmed and the petition will be denied. 
ORDER: The appeal is dismissed.