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invasionof personalprivacy
PltiLIC COpy
U.S. Department of Homeland Security
20 Massachusetts Ave., N.W., Rm. 3000
Washington, DC 20529
u.s.Citizenship
and Immigration
Services
File: EAC 07 035 52911 Office: VERMONT SERVICE CENTER Date: FEB 282008
IN RE: Petitioner:
Beneficiary:
Petition: Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(15)(L) of the Immigration
and Nationality Act, 8 U.S.C. § 1101(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.
~hief
Administrative Appeals Office
www.uscis.gov
EAC 07 035 52911
Page 2
DISCUSSION: The Director, Vermont 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 visa petition seeking to employ the beneficiary as its general director
as an L-l A nonimmigrant intracompany transferee pursuant to section 101(a)(15)(L) of the Immigration and
Nationality Act (the Act), 8 U.S.C. § 1101(a)(15)(L). The petitioner is a corporation organized under the laws
of the State of Texas and is allegedly a distribution and training business.
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 executive capacity.l
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 to the petitioner asserts that the director
erred and that the beneficiary's duties are primarily those of an executive.
To establish eligibility for the L-l 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:
(i) Evidence that the petitioner and the organization which employed or will employ the
alien are qualifying organizations as defined in paragraph (1)(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
lIt is noted that, by the director concluding that the petitioner failed to establish that the beneficiary will be
performing qualifying duties immediately upon his arrival in the United States, the director implicitly
concluded that the petitioner is not a "new office" for purposes of 8 C.F.R. § 214.2(1). Although counsel did
not challenge the application of this criterion on appeal even though the petitioner claims to be a "new office"
in the L Classification Supplement to Form 1-129, the AAO notes that, upon review, the director's treatment
of the petitioner as a fully formed entity was appropriate. The record indicates that the petitioner was formed
in 2004 and that it has been doing business in the United States for approximately two years. Therefore, as
the petitioner does not meet the definition of a "new office," the petitioner is obligated to establish that the
beneficiary will perform qualifying duties immediately upon petition approval. 8 C.F.R. § 214.2(1)(1)(ii)(F);
8 C.F.R. § 214.2(l)(3)(ii).
EAC 07 035 52911
Page 3
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 himlher 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.2
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 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:
2The petItIoner does not clarify in the initial petition whether the beneficiary will primarily perform
managerial duties under section 101(a)(44)(A) of the Act, or primarily executive duties under section
101(a)(44)(B) of the Act, although counsel on appeal appears to limit the beneficiary to the executive
classification. Given the lack of clarity, the AAO will assume that the petitioner is asserting that the
beneficiary will be employed in either an executive or a managerial capacity. Therefore, the AAO will
consider whether the petitioner has established that the beneficiary will be employed in an executive capacity
and, beyond the decision of the director, whether the petitioner has established that the beneficiary will be
employed in a managerial capacity.
EAC 07 035 52911
Page 4
(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 described the beneficiary's job duties in a letter dated October 31, 2006 as follows:
The US company has now reached a critical stage in its development and [the beneficiary's]
presence to oversee the further growth of the company requires his continuous presence in the
US. [The beneficiary] will join the [the petitioner] on a temporary assignment to fill a full
time position of General Director. In this position [the beneficiary] will be responsible of
[sic] managing the functional aspect of the company. He will oversee all the activities of the
company including the expansion of a market for [the foreign employer's] products including
training for client's companies, coordination and operation of all international sales and
purchases. He will also have the responsibility of making agreements and signing contracts
with companies. [The beneficiary] will also hire necessary personnel for the operation of this
company.
The petitioner also submitted an organizational chart for the United States operation. The chart shows the
beneficiary supervising one employee described as a "coordinator."
On December 18, 2006, the director requested additional evidence. The director requested the petitioner's
2006 federal wage reports, a copy of the petitioner's most recent tax return, and complete position descriptions
for the beneficiary and all subordinate employees.
In response, the petitioner submitted wage reports indicating that it employed one person in both the third and
fourth quarters of 2006. This single employee was paid a total of $1,440.00 in wages during these two
quarters.
The petitioner also described the job duties of both the beneficiary and his subordinate employee. The
beneficiary's duties were described as follows:
takes charge of presenting objectives
defining goals
meeting goals
administering resource
contracting services
pay taxes, labor
supplying of commodities, machinery and teams requested by [foreign employer]
EAC 07 035 52911
Page 5
attend organizations relating to Home Depot
certify and mark new product inventions
certifying the products [related to the petitioning organization] with the distinctive
symbol UL
have significant proof to be registered to UL
visit important clients
give courses on the usage of the products [related to the petitioning organization.]
The petitioner also described the duties of the subordinate employee, the "coordinator," as follows:
Takes charge of doing calls to suppliers and vendors, packs and sends to coordinatoors
incharge [sic] of the shipments for commodities and machinery that are requested by [the
foreign employer], does invoices and attends the phone[.]
The petitioner further explained that the subordinate employee works a "minimum of 2 hours from Monday
thru Friday." Based on this description, it is unclear whether the employee works two hours per week or two
hours per day.
On February 6, 2007, the director denied the petition. The director concluded that the petitioner failed to
establish that the beneficiary will be employed primarily in an executive capacity.
On appeal, the petitioner asserts that the beneficiary's duties are primarily those of 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. § 214.2(l)(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.
As a threshold issue, the AAO notes that the petitioner's attempt to supplement the beneficiary's job
description on appeal was inappropriate and will not be considered. First, 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 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 Citizenship and
Immigration Services (CIS) requirements. See Matter of lzummi, 22 I&N Dec. 169, 176 (Assoc. Comm.
1998). Second, 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 evidence
in response to the director's Request for 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). The appeal will be adjudicated based on the record of proceeding
before the director.
EAC 07 035 52911
Page 6
In this matter, the description of the beneficiary's job duties fails to establish that the beneficiary will act in a
"managerial" or "executive" capacity. In support of the petition, the petitioner has submitted a vague and
non-specific job description which fails to sufficiently describe what the beneficiary will do on a day-to-day
basis. For example, the petitioner states that the beneficiary will "oversee all the activities of the company
including the expansion of a market for [the foreign employer's] products" and will make agreements and sign
contracts. The petitioner further states that the beneficiary will present objectives, define and meet goals, and
administer resources. However, the petitioner does not define these objectives, goals, or resources.
Furthermore, the petitioner does not explain what, exactly, the beneficiary will do in "overseeing" the
activities of the business and its market expansion given its employment of only one part-time employee who
is not specifically described as performing tasks related to these duties. The fact that the petitioner has given
the beneficiary a managerial or executive title and has prepared a vague job description which includes
inflated job duties does not establish that the beneficiary will actually perform managerial or executive duties.
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), aff'd, 905 F.2d 41 (2d. Cir.
1990). 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).
Likewise, it appears that most of the duties ascribed to the beneficiary will be non-qualifying administrative
or operational tasks which will not rise to the level of being managerial or executive in nature. For example,
the petitioner asserts that the beneficiary will make agreements, sign contracts, pay taxes and labor, supply
products, attend meetings, certify products, visit clients, and teach product related courses. However, such
duties constitute non-qualifying administrative or operational tasks when those tasks are performed by the
beneficiary. As the record does not establish that the petitioner's employment of the part-time "coordinator"
will relieve the beneficiary of the need to perform these non-qualifying tasks, it must be concluded that he
will perform these tasks. Furthermore, as the petitioner has not established how much time the beneficiary
will devote to such non-qualifying tasks, it cannot be confirmed that he will "primarily" be employed as a
manager or an executive. 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).
The petitioner has also failed to establish that the beneficiary will supervise and control the work of other
supervisory, managerial, or professional employees, or will manage an essential function of the organization.
As alleged in the organizational chart, job descriptions, and payroll reports, the beneficiary will directly
supervise a single part-time employee described as a "coordinator." However, the petitioner has failed to
establish that the coordinator is a supervisory or managerial employee. To the contrary, it appears that the
coordinator will perform the tasks necessary to produce a product or provide a service, e.g., calling suppliers
and vendors, packing and sending products, invoicing, and attending the phone. Therefore, it appears that the
beneficiary will be primarily a first-line supervisor of a non-professional employee, the provider of actual
services, or a combination of both. A managerial 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.
EAC 07 035 52911
Page 7
101(a)(44)(A)(iv) of the Act; see also Matter of Church Scientology International, 19 I&N Dec. at 604.
Moreover, as the petitioner failed to establish the skills required to perform the duties of the subordinate
position, the petitioner has not established that the beneficiary will manage a professional employee. 3
Therefore, the petitioner has not established that the beneficiary will be employed primarily in a managerial
. 4
capacIty.
Similarly, the petitioner has failed to establish that the beneficiary will act in an "executive" 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
3In 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. § 1101(a)(32), states that "[t]he term profession shall include but not
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 (Comm. 1988); Matter of Ling, 13 I&N Dec. 35 (R.C. 1968);
Matter ofShin, 11 I&N Dec. 686 (D.D. 1966).
4While the petitioner has not specifically argued that the beneficiary will manage an essential function of the
organization, the record nevertheless would not support this position even if taken. 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 is managing 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. § 214.2(l)(3)(ii). In
addition, the petitioner's description of the beneficiary's daily duties must demonstrate that the beneficiary
manages the function rather than performs 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 fails to document what proportion of the beneficiary's duties will be managerial, if any, and what
proportion will be non-managerial. Also, as explained above, the record establishes that the beneficiary will
primarily be a first-line supervisor of a non-professional employee and/or will be engaged in performing non­
qualifying operational or administrative tasks. 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 will be
managerial, nor can it deduce whether the beneficiary will be primarily performing the duties of a function
manager. See IKEA US, Inc. v. u.s. Dept. ofJustice, 48 F. Supp. 2d 22,24 (D.D.C. 1999).
EAC 07 035 52911
Page 8
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. For the same reasons indicated above, the petitioner has failed to
establish that the beneficiary will act primarily in an executive capacity. The job description provided for the
beneficiary is so vague that the AAO cannot deduce what the beneficiary will do on a day-to-day basis.
Moreover, as explained above, it appears that the beneficiary will be primarily employed as a first-line
supervisor and will perform tasks necessary to produce a product or to provide a service. Therefore, the
petitioner has not established that the beneficiary will be employed primarily in an executive capacity.
It is recognized that a company's size alone, without taking into account the reasonable needs of the
organization, may not be the determining factor in approving a visa for a multinational manager or executive.
See § 101(a)(44)(C) of the Act. However, in reviewing the relevance of the number of employees an
employer has, federal courts have generally agreed that CIS "may properly consider an organization's small
size as one factor in assessing whether its operations are substantial enough to support a manager." Family,
Inc. v. u.s. Citizenship and Immigration Services, 469 F.3d at 1316 (citing with approval Republic of
Transkei v. INS, 923 F.2d 175, 178 (D.C. Cir. 1991); Fedin Bros. Co. v. Sava, 905 F.2d 41,42 (2d Cir. 1990)
(per curiam); Q Data Consulting, Inc. v. INS, 293 F. Supp. 2d 25, 29 (D.D.C. 2003). Furthermore, the
reasonable needs of the petitioner will not supersede the requirement that the beneficiary have been
"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). Accordingly, in this matter, the petitioner has
failed to establish that the beneficiary will primarily perform managerial or executive duties, and the petition
may not be approved for that reason.5
Beyond the decision of the director, the petitioner failed to establish that the beneficiary had been employed
abroad for at least one continuous year in a position that was managerial, executive, or involved specialized
knowledge. 8 C.F.R. §§ 214.2(l)(3)(iii) and (iv).
The petitioner described the beneficiary's duties abroad in a letter dated October 31, 2006 as follows:
[The beneficiary] has been employed as General Director of [the foreign employer]. In this
position he oversees the entire company. He plans and organizes groups so that company
objective can be carried out[. H]e identifies new opportunities for products and marketing.
5It is further noted that, on appeal, counsel cites various unpublished AAO decisions as precedent. However,
counsel's reliance on these decisions is misplaced. First, counsel has furnished no evidence to establish that
the facts of the instant petition are analogous to those in the unpublished decisions. Second, while 8 C.P.R.
§ 103.3(c) provides that AAO precedent decisions are binding on all CIS employees in the administration of
the Act, unpublished decisions are not similarly binding. Third, as explained above, the petitioner has not
established that the beneficiary will primarily be employed in a managerial or executive capacity. This is
paramount to the analysis, and a beneficiary may not be classified as a manager or executive if he or she will
not primarily perform managerial or executive duties. Therefore, as the petitioner has not established this
essential element, the unpublished decisions would be irrelevant even if they were binding or analogous.
EAC 07 035 52911
Page 9
He makes sure that all rules and regulations are followed for the production and quality
control of the product.
Upon review, the petitioner has failed to establish that the beneficiary was employed abroad in a position that
was primarily managerial, executive, or involved specialized knowledge. The petitioner has not described the
beneficiary as performing "primarily" qualifying duties abroad. In support of the petition, the petitioner
submitted a vague and non-specific job description which fails to sufficiently describe what the beneficiary
did 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, ajf'd, 905 F.2d 41.
Furthermore, the petitioner failed to establish that the beneficiary supervised and controlled the work of other
supervisory, managerial, or professional employees. Once again, 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 ofCalifornia, 14 I&N Dec. 190.
Accordingly, the petitioner failed to establish that the beneficiary had been employed abroad for at least one
continuous year in a position that was managerial, executive, or involved specialized knowledge, and the
petition may not be approved for this additional reason.
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 Dar v. INS, 891 F.2d 997, 1002 n. 9 (2d Cir. 1989) (noting that the AAO reviews
appeals on a de novo basis).
The petition will be denied for the above stated reasons, with each considered as an independent and
alternative basis for denial. When the AAO denies a petition on multiple alternative grounds, a plaintiff can
succeed on a challenge only if it is shown that the AAO abused its discretion with respect to all of the AAO's
enumerated grounds. See Spencer Enterprises, Inc., 229 F. Supp. 2d at 1043.
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. Accordingly, the
appeal will be dismissed.
ORDER: The appeal is dismissed.