dismissed L-1A Case: Distribution Of Adhesive Films

U.S. Department of Homeland Security 
20 Mass. A\e, K.W., Km A3042 
Wash~ngton, DC 20529 
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Rle: WAC 03 167 50986 Office: CALIFORNIA SERVICE CENTER Date: qhg ii ^,: -"", 
IN RE: Petihoner: 
Beneficiary: 
Petition: petition for a Nonimrnigrant Worker Pursuant to Section 10l(a)(15)(L) of the Immigration 
and Nationality Act, 8 U.S.C. 1101(a)(15)(L) 
JN BEHALF OF PETITIONER: SELF-REPRESENTED 
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. 
[~drn~nistrative Appeals Office 
*'Li 
WAC 03 167 50986 
Page 2 
DISCUSSION: The Director, Califomla Service Center; denied the petition for a nonimmigrant visa. The 
matter is now before the Administrative Appeals Office (AAO) on appeal. The AAO will dismlss the appeal. 
The petitloner seeks to employ the beneficiary temporarily in the United States as an L-1A nonimrnigrant 
intracompany transferee pursuant to section 101(a)(15)(L) of the Immigration and Nationality Act (the Act), 8 
U.S.C. 3 1101(a)(lS)(L). The U.S. petitioner, a limited liability company organized in the State of Califoinla 
that is engaged in the distribution of adhes~ve films, seeks to employ the beneficiary as its buslness and sales 
manager. The petitloner cla~ms that it is the subs~dlary of located In Frontignan, France. 
The director denxed the petition concluding that the petitioner dld not establish that the beneficiary would be 
employed in the United States in a pnmarlly managerial or executtve capacity. 
The petitioner subsequently filed'an appeal. The director declined to treat the appeal as a motion and 
forwarded the appeal to the &O for review. On appeal, the petitioner asserts that the di~ector's denial was 
based on a misinterpretation of both law and fact, and that the evidence submitted with the initial petition and 
in response to the director's request for additional evidence clearly established that the beneficiary would be 
employed in a primarily managerial or executive 'capacity.as defined by the regulations. In support of this 
assertion, the petitioner submits a brief and additional evidence. 
'1.0 establish eligibility for the L-1 nonimmigrant visa classification, the petitioner must meet the criteria 
outlined in section 101(a)(15)(L) of thc 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. 9 214.2(1)(3) states that an individual petition filed on Fonn 1-129 shall be 
accompanied by: 
(1) Evldence that the petitioner and the organization which employed or wlll employ the 
alien are quahfying organizat~ons as defined in paragraph (l)(l )(n)(G) of ths sectlon. 
(11) Evidence that the alien will be employed in an executive, managerial, or special~zed 
knowledge capacity, including a detailed description of the servlces to be performed. 
(iii) Evldence that the alien has at least onc continuous year of full time employment 
abroad wlth a qualifying organization within the three years preceding the filing of 
the ictition. 
(lv) Evidence that the alien's prior year of employment abroad was in a posltion that was 
managerial, executive or involved special~zed knowledge and that the alien's prlor 
education, trainmg, and employment qualifies hlmlher to perform the intended 
, WAC 03 167 50986 
Page 3 
services in the United States; however, the work m the United States need not be the 
same work which the alien performed abroad. 
The primary issue m 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 1101(a)(44)(A), defines the term "managenal capacity" as an 
assignment within an organizat~on in whlch the employee primarily: 
(I) manages the organlzation, or a department, subdlvlsion, functlon, or component of 
the organlzation; 
(i~) supervises and controls the work of other supervisory, professional, or managerial 
employees, or manages an cssential function within the organization, or a department 
or subdivision of the organization; 
(111) ~f another employee or other employees are dlrectly supervised, has the author~ty to 
hlre and fire or recommend those as well as other personnel act~ons (such as 
promotion and leave authorization), or if no other employee is directly supervised, 
funct~ons at a senlor level wlthin the organizational hierarchy or w~th respect to the 
funct~on 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 considercd to be 
acting in a managerial capacity merely by vlrtue of the supervisor's supervisory . 
dut~es 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 organizatlon 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 pol~c~es of the organization, component, or functlon, 
(111) exercises wlde lat~tude in dlscret~onary decislon making; and 
(IV) recelves only general supervision or d~rectlon from higher level executives, the board 
of directors, or stockholders of the organizatlon. 
In the lnltial petihon, thc petitioner stated that "[the beneficiary's] mlssIon in the Un~ted States will be to 
develop [the petitioner's] penetration on the east coast. For that purpose, he wlll work half of his time at the 
petitioner's premlses m Corona, Cal~fornla, and the other half out of New York." The petitioner continued, 
WAC 03 167 50986 
Page 4 
stating that "[hlis duty will be to build up a client list and to hire the necessary personnel in order to assist him 
within the framework of his mission. It is expected that the sales and administrative team for the east coast 
will grow from 1 to 3 persons within the next 18 months." 
On June 25, 2003, the director requested additional evidence establishing that the beneficiary was qualified 
for the benefit sought. Specifically, the director requested: (1) the total number of employees at the location 
where the beneficiary would be employed; (2) a copy of the organizational chart foi- the U.S. entity which' 
demonstrated the beneficiary's rank within the organizational hierarchy and details about the beneficiary's 
subordinates, their positidns, and their salaries; (3) corporate documentation for the U.S. entity, including the 
company's stock ledger and stock certificates; and (4) a copy of the U.S. entity's lease agreement. 
On July 22, 2003, the petitioner submitted a detailed response accompanied by the documentation requested 
by the director. Counsel's response included an organizational chart evidencing that the beneficiary would 
not be supervising any employees in his proposed position. 
On September 12, 2003 the director denied the petition. The director determined that the evidence in the 
record did not establish that the beneficiary would be employed in a primarily managerial or executive 
capacity while in the' United States. Specifically, the director concluded that the evidence submitted was 
insufficient to demonstrate that the beneficiary would be functioning in a primarily managerial capacity, as 
there was no evidencc that the beneficiary would be exercising significant authority pver generalized policy 
of tht: organization. The director further found that the U.S. petitioner lacked the organizational complexity 
to support the beneficiary in a position that is primarily managerial or executive. 
On appeal, the petitioner alleges that the director's denial was the result of a misinterpretation of both law and 
fact, and that the evidence submitted clearly establishcd the beneficiary's qualifications. 
The AAO, upon review of the record of proceeding, concurs with the director's findings. Specifically, upon 
review of the beneficiary's stated duties and hs anticipatcd role in the organizational hierarchy of the U.S. 
entity, 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 AAO will look first to the 
petitioner's description of the job duties. See 8 C.F.R. 5 214.2(1)(3)(ii). As previously noted, the petitioner 
pro'.i?ded a brief description of the beneficiary's proposed duties with the initial and essentially 
indicated that his duties. would consist primarily of penetrating the east coast market. Associated duties 
would include finding new clients and providing monthly reports to both the U.S. and foreign entities. The 
petitioner further stated that although the beneficiary would not initially supervise personnel, it was likely that 
he would hire new employees for the New York office who would then be under his direction within 18 
months. . 
On appeal, the petitioner alleges that the beneficiary's duties are both managerial and executive in nature, and 
further elaborates on his stated duties. Specifically, the petitioner states that: 
It appears clearly to us that [the beneficiary] will: 
WAC 03 167 50986 
Page 5 
Manage a component or subdivision of the organization as he will manage an entirely 
new office; 
[Mlanage an essential function within the organization, or a department or 
subdivision of the orgamzation as belng responsible of an entirely new office 1s an 
essential function; 
[Hlavc the authority to hlre and fire employees when the New York office will be 
sufficiently well established to do so; 
[A]s long as no other employee will be directly supervised, he will function at a 
senior level within the organizational hierarchy or with respect to the function 
managed as he will report only to [the forelgn entity] and to the President of [the 
petltloner]; 
Exercise d~scretion over the day-to-day operations of the activity of the New York 
office. 
The petitioner concludes by stating that the beneficiary "will effectively act.as a manager as provided in 8 
CFR 2 14.2(1)." After presenting this conclusion, the petitioner continued its assertlons as follows: 
Furthermore, it appears that [the beneficiary] will: 
Direct the management of a major component of the organization (as he will direct 
the management of an entire local office in New York); 
Establish the goals and policies of the organization, component, or functlon (as he 
wlll be the only person to establish the goals and policies of the New York office); 
Exerclse wide latitude in discretionary decision-malung (as he will have total latitude 
in d~scretionar~'dec~sion-making for the New York office); 
Receive only general supervision or direction from higher level executives, the board 
of directors, or stockholders of the organization (as he will only receive general 
supervision [form] the French parent company and/or the President of [the 
petitioner]. 
lle petitioner subsequently concludes this recitation by stating that "[als a consequence, we believe that [the 
bencficlary] will effectively act as an executive as provided in 8 CFR 214.2(1)." Finally, the petlt~oner 
combines these duties Into a single list as evldence of the beneficiary's qualifications. 
The AAO is not persuaded that the proposed duties of the beneficiary satisfy the regulatory requirements. In 
addition, the statements provided by the petitioner on appeal are not convincing. 
There are several problems with the beneficiary's stated duties and the petrtioner's assertlons in support 
thereof. First, the statements provided on appeal essentially restate the regulatory definitions of both 
managenal and executive capacity, and are not supported by ~ndependent evldcnce. Instead, the petitioner 
merely restates the defin~bons and concludes by stating that "we believe" the beneficiary is quahfied Th~s 
form of evldence IS not persuasive in this matter. Conclusory assertlons regarding the bcneficlary's 
.WAC 03 16.7 50986 
Page 6 
employment capacity are not sufficient. Merely repeating the language of the statute or regulations does not 
satisfy the petltioner's burden of proof. Fedin Bros. Co., Ltd. v. Suva, 724 F. Supp. 1103, 1108 (E.D.N.Y. 
1989), aff'd, 905 F. 2d 41 (2d. Cir. 1990); Avyr Associates, Inc. v. Meissner, 1997 WL 188942 at '5 
(S.D.N.Y.). In addition, the petitioner has provided no independent documentation, aside from ~ts own claims 
and conclusions, that support the assertions that the beneficiary will be employed primarily as a manager or 
executive. Going on record wlthout supporting documentary evidence 1s 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). 
Second, the description of duties provided does not establish that the beneficiary will be employed primarily 
as a manager or executive. In this case, the petitioner indicates that the beneficiary will not be supervising 
personnel. .Consequently, the AAO must examine the stated duties to determine whether the bcneficiary can 
thus be classified as a function manager. 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, 8 U.S.C. 
.Q 1101(a)(44)(A)(ii). If a petitioner claims that the beneficiary is managing an essential function, the 
petitioner must identify the function with specificity, articulate the essential nature of the function, and 
establish the ,proportion of the beneficiary's daily duties attributed to managing the essential function. In 
addition, the petitioner must provide a comprehensive and detajled description of the beneficiary's daily duties 
demonstrating that the beneficiary manages the function rather than performs the duties relating to the 
function. An employee who primarily performs the tasks necessary to produce a product or to provide 
scrvices is not considered to be employed in a managerial or executive capacity. Matter of CIzurclz 
Scientology International, 19 I&N Dec. 593, 604 (Comm. 1988). In this matter, the petitioner has not 
provided evidence that the beneliciary manages an essential function. 
Whether the beneficiary is an "activity" or "function" manager turns in part on whether the petitioner has 
sustained its burden of proving that his duties are "primarily" managerial. Here, the petitioner fails to 
document what proportion of the beneficiary's duties would be managerial functions and what proportion 
would be non-managerial. The petitioner lists the beneficiary's duties as managerial, but it fails to quantify 
the time the beneficiary spends on them. For example, the petitioner repeatedly states that the beneficiary 
will work alone in the New York office. Without a support staff to manage clerical and administrative tasks 
essential for the operation of a business, it is evident that the beneficiary will be performing these duties. For 
example, the petitioner indicates that the beneficiary will be solely responsible for the sales functions of the 
business, in addition to finding new clients, until (or unless) additional employees are hired. Additionally, the 
AAO notes that the beneficiary is also expected to devote half of his time to, service in the petitioner's West 
Coast office. However, the petitioner fails to discuss what the beneficiary's stated duties would be while 
working in that ,office. Clearly, this statement suggests that the bcneficiary will be required to perform a 
significant amount of non-managerial .duties that do not fall directly under tra&tional managerial duties as 
defined in the statute.' For this reason, the AAO cannot determine whether the beneficiary is primarily 
1 
Assuming the accuracy of the pet~tioner's claim that the beneficiary is to be the only employee in the New 
York office, it is impossible to conclude that the beneficiary will be employed primarily in a managerial or 
WAC 03 167 50986 
Page 7 
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). 
To allow the broad application of the term "essential function" to include any mlnor or low-level function 
withln a business would render the term meaningless. The term "essential" 1s defined as "inherent" or 
"indispensable." Wehster's II New College Dictionav 384 (2001). Accordingly, the petitioner must establish 
that the function is inherent and indispensable to the business rather than a low-level collateral task that IS 
superfluous to the company's essential operations. Since the petitioner has not described the daily tasks of the 
beneficiary with specificity, and there is no evldence to suggest that  he beneficiary will not be expected to 
engage in low-level tasks while working alone to create a new office, the AAO is precluded fi-om finding that 
the beneficiary will be employed in a primarily managerial or executive capacity, 
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. 
Beyond the decision of the director, the record contains insufficient evidence that a qualifying relationship 
exists between the U.S. entity and the claimed foreign parent. The record alleges that the U.S. entity is a 
subsidiary of a French corporation. The corporate documentation evidencing the ownership of 
the U.S. entlty, however, 1s limited and not persuasive. The record contains a Mcrnbership Interest Transfer 
Ledger, affinned as of July 11, 2003, and a copy of the U.S. petitloner's Articles of Organization. Although 
both documents indicate that the foreign entity is the majority shareholder, the extent of the membership 
interests differs on each document. Furthermore, there are no membership certificates or ledgers to support 
these contentions. It is incumbent upon the petiboner to resolve any inconsistencies in the record by 
~ndependent objective evldence. Any attempt to explain or reconc~le such inconsislencies will not suffice 
unless the petitloner submits competent objective evidence point~ng to where the truth lies. Matter of Ho, 19 
I&N Dec. 582,591-92 (BIA 1988). For this additional reason, the petition may not be approved. 
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 
Sperzcer Enterprises, Inc. v. United States, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 2001), afd. 345 F.3d 683 
(9th Clr. 2003); see uIso Dor v. INS, 891 F.2d 997, 1002 n. 9 (2d Cir. 1989)(noting that the AAO revlews 
appeals on a de novo basis). 
A final note is with regard to the untranslated documents contained in the record. Numerous documents, 
written in French, are submitted in support of various claims. Although the petitioner submits certified 
statements attesting to the nature of the documents, the AAO is precluded from fully examining the evidence 
due to the failure to submit a certified translation of the documents in their entireties. Because the petitioner 
failed to submit certified translations of the documents, the AAO cannot determine whether the evidence 
supports the petitioner's claims. See 8 C.F.R. 103.2(b)(3). Accordingly, the evidence is not probative and 
will not be accorded any weight in this proceeding. 
executive capacity if there is no onc else to conduct the basic functions of the New York office while he is 
working m the petitioner's West Coast office. 
WAC 03 167 50986 
Page 8 
In visa petition proceedings, the burden of proving eligrbility for the benefit sought remains entirely with the 
petitloner. 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 petltion will be denied. 
ORDER: The appeal is dismissed.