dismissed L-1A Case: Education / Entertainment

~bca&~ky~~& YU.U de&kd 
pmvent dearly unwm 
hvaeion of persoaal prhcy 
PUBLIC COPY 
U.S. Department of Homeland Security 
20 Massachusetts Ave . N W.. Rni. A3042 
Wash~ngton, DC 20529 
U.S. Citizenqhip 
and Immigltation 
Services I 
1 
File: WAC 04 130 50691 Office: CALIFORNIA SERVICE CENTER ~atei 1 0 Z@J 
Petition: Petition for a Nonimrnigrant Worker Pursuant to Section 101(a)(15)(L) of the  bigr ration 
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 b n returned to 
the office that originally decided your case. Any further inquiry must be made to that office. 4 
Robert P. Wiemann, ~dctor 
Appeals Office 
WAC 04 130 50691 
Page 2 
DISCUSSION: The Director,Califomia Service Center, denied the petition for a 
matter is now before the Administrative Appeals Office (AAO) on appeal. The 
The petitioner filed this nonimmigrant petition seeking to extend the 
nonimmigrant intracompany transferee pursuant to section 10 
Act (the Act), 8 U.S.C. 4 1101(a)(15)(L). The petitioner is a 
that operates a franchised learning center and a karaoke music studio. The 
subsidiary of located in Seoul, Korea. The beneficiary was 
one-year period ot stay to open a new office in the United States and was 
extensions. of status. The petitioner now seeks to extend the beneficiary's stay for an 
period. 
The director denied the petition concluding that the petitioner did not establish 'that the 
employed in the United States in a primarily managerial or executive capacity. 
that the petitioner did not show that the beneficiary will be 
supervisory personnel, or that it otherwise employs a staff 
performing non-qualifying duties. 
(i) Evidence that the petitioner and the organization which employed or will 
alien are qualifying organizations as defined in paragraph (l)(l)(ii)(G) of 
(ii) Evidence that the alien will be employed in an executive, managerial, or specijlized 
knowledge capacity, including a detailed description of the services to be perfohed. 
The petitioner subsequently filed an appeal. The director declined to treat the appeal as 
forwarded the appeal, to the AAO for review. On appeal, counsel for the petitioner asserts th:.t 
(1) provided no basis for concluding that the petitioner did not have sufficient staff to relieve 
from performing non-qualifying duties; (2) erroneously stated that the petitioner employs only 
when it showed ten employees on its organizational chart; and (3)'ignored the fact that six of the 
subordinates have college degrees. Counsel briefly re-states the beneficiary's job description and 
is consistent with the duties of a president of "any company." 
To establish eligibility for the L-1 nonimrnigrant visa classification, the petitioner must meet 
outlined in section 101(a)(15)(L) of the Act. Specifically, a qualifying organization must have 
beneficiary in a qualifying managerial or executive capacity, or in a specialized knowledge 
continuous year within three years preceding the beneficiary's application for admission 
States. In addition, the beneficiary must seek to enter the United States temporarily to continuc: 
or her services to the same employer or a subsidiary or affiliate thereof in a managerial, 
specialized knowledge capacity. 
The regulation at 8 C.F.R. 5 214.2(1)(3) states that an individual petition filed on Form 
accompanied by: 
a. motion and 
the director : 
:he beneficiary 
:he employees 
beneficiary's 
claims that it 
the criteria 
employed the 
ca~acity, for one 
irto the United 
rendering his 
executive, or 
1-129 shall be 
WAC 04 130 50691 
Page 3 
(111) Evldence that the allen has at least one continuous year of full-time emp yment 
abroad with a qualifying organizatlon w~th~n the three years preced~ng the ling of 
the petltlon. i 
(iv) Evidence that the alien's prior year of employment abroad was in a position 
managerial, executive or involved specialized knowledge and that the 
education, training, and employment qualifies himher to perform 
services in the United States; however, the work in the United States 
same work which the alien performed abroad. 
The pnmary issue in this matter is whether the beneficiary will be employed by the United S ates entity in a i 
primarily managerial or executive capacity. 
! 
Section 10 1 (a)(44)(A) of the Act, 8 U.S.C. 5 1 10 1 (a)(44)(A), defines the term "managerial apacity" as an 
assignment within an organizatlon in which the employee pnmarily: 
(I) manages the organization, or a department, subd~vision, functlon, or compo ent of 
the organization; 
(11) supervises and controls the work of other supervisory, professional, or man genal 
employees, or manages an essential function withln the organizatlon, or a dep ent 
or subdiv~sion of the organ~zation; 
I 
(111) ~f another employee or other employees are directly supervised, has the auth 
hlre and fire or recommend those as well as other personnel actions 
promotion and leave authorization), or if no other employee is directly 
functions at a senior level within the organizational hierarchy or with 
functlon managed; and 
(iv) exercises discretion over the day to day operations of the actlvity or 
which the employee has authonty. A first line supervisor 1s not 
acting in a managenal capacity merely by virtue of the 
duties unless the employees supervised are professional. 
Sectlon 101(a)(44)(B) of the Act, 8 U.S.C. !j 1101(a)(44)(B), defines the 
assignment within an organization in which the employee primanly: 
(i) directs the management of the organization or a major component or function 
organization; 
(11) establ~shes the goals and pol~cies of the organization, component, or funct~on; 
(111) exercises wide lat~tude m d~scret~onary decision maklng; and 
WAC 04 130 50691 
Page 4 
(iv) reckives only general supervision or direction ffom higher level 
of directors, or stockholders of the organization. 
i 
! In a March 30, 2004 letter submitted in support 
duties as: 
As President of the company, [the beneficiary] has set up the U.S. 
full responsibility for the direction, coordination, and operations of 
be responsible for planning, formulating and implementing 
policies and procedures. He will use his independent 
and cultivating new projects and investments. [The 
day operations of the business and will have 
actions with respect to the company 
discretionary powers, receiving direction only from the parent company.. .. 
In addition to the duties beneficiary] directs JEI 
through his managing teacher, who has a Bachelor's degree 
beneficiary] regularly ho reports to him with 
issues, ~ncluding cumculum development, business management, 
student relations. [The beneficiary] regularly makes decisions and directs Ms to 
execute those decisions. 
\ 
[The beneficiary] also .directs and operates Muse Karaoke through a manager, 
who is responsible for general supervision of the business, bookkeeping, and maintenance 
the karaoke machines. The manager also supervises the customer service representative 
services the customers, receives payments, and reports to the manager. 
On Form 1-129, the petitioner indicated that it employed nine individuals as of April 1, 2004. 
submitted an organizational chart depicting a total of eight employees. The chart lists the 
positions as president, director of the learning center, and director of the music studio. The char: 
the music studio employs a manager and a customer service employee, and that the learning 
managerlteacher and four additional teachers. The petitioner also submitted its cal~fornia 
Employer's Quarterly Wage Report, for all four quarters of 2003, showing that the company 
more than six individuals in any month during the year. As of December 3 1, 2003, the 
employees on its payroll, including the beneficiary and one of the individuals identified as a 
of 
who . . 
The petitioner 
bene.iciary in three 
indicates that 
center employs a 
Forms DE-6, 
employed no 
com3any had five 
teacher. The 
employee identified as a teacherlmanager received wages during the first two quarters of 200?, and another 
employee identified as a teacher received wages during the second and third quarters of 2003. The remaining 
four employees shown on the petitioner's organizational chart do not appear on the Forms DE-6 tor 2003. 
WAC 04 130 5069 1 
Page 5 
i 
On April 13, 2004, the director requested additional evidence. In part, the director instructed he petitioner to 
submit: (1) a more detailed description of the beneficiary's duties and the percentage of ti he devotes to 
each. task; and (2) an organizational chart for the U.S. entity which lists all employees under t e beneficiary's 
supervision, including a brief description of duties, educational level, annual salaries/wages, d immigration 
status for each employee. 
In response, the petition& submitted a letter dated June 19, 2004. The petitioner 
the company, the beneficiary will be responsible for "organizing, expanding, 
business." The petitioner re-stated the job description submitted with the 
As far as the percentage of time spent on each duty, it is impossible to say and 
myriad of things. For example, sometimes reviewing and analyzing financial 
require more attention than actual meeting with managers. Time spent on 
day. ,The amount of time spent on any given duty will -depend on what priority 
those duties which in turn depends on numerous factors such as meeting a 
or urgency of the problem. 
On appeal, counsel for the petitioner asserts that the director provided no basis for his 
that the petitioner does not have sufficient staff to caky out.the petitioner's daily 
misstated the number of employees worhng for the petitioner. Counsel claims 
clearly' showed ten employees working for the petitioner, and asserts that the 
beneficiary from performing operational duties. Counsel also contends 
ignored" that "at least six" of the beneficiary's subordinates have college 
the beneficiary's job description and asserts that his duties "are 
president of any company." Counsel asserts that a company 
a reasonable need for an executive, 
The petitioner provided an organizational chart that describes the same structure indicated i 
chart. The petitioner added the following information: the "manager" of the learning center is 
cumculum development and receives $25.00 per'hour; all of the teachers have a "college 
between $9.00 and $1 0.00 per hour; the music studio manager has a college degree and earns $. 
and the "customer service" employee is a college student earning $9.00 per hour. 
The director denied the petition on July 14, 2004 concluding that the petitioner had not 
beneficiary would be employed in a managerial or executive capacity. The director noted the: 
supervision of the learning center manager, the music studio manager, and the 
representative, and concluded that the petitioner had not established that the beneficiary 
professio'nal, managerial or supervisory personnel. The director also determined that the 
establish that it had sufficient staff to relieve the beneficiary from performing non-qualifying 
Accordingly, the director concluded that the beneficiary would primarily be directly providing 
the business and supervising three non-professional employees. 
-esponsible for 
degree" and earn 
5.00 per hour; 
established that the 
beneficiary's 
cus.omer service 
wibuld supervise " 
petitioner did not 
duties. 
the services of 
WAC 04 130 5069 1 
Page 6 
Upon review, counsel's assertions are not persuasive. When examining the. executive or man gerial capacity 
of the beneficiary, the AAO will look first to the petitioner's description of the job dutie . See 8 C.F.R. 
$ 214.2(1)(3)(ii). The petitioner's description of.the job duties must clearly describe t e duties to be 
., performed by the beneficiary and indicate whether such, duties are either in an executiv , or managerial 
capacity. Id. i 
Rather than providing a specific description of the beneficiary's duties, the petitioner 
provid'ed a vague.description that generally paraphrases the statutory definitions of manage 
capacity. See sections 101(a)(44)(A) and (B) of the Act, 8 U.S.C. $5 1 101(a)(44)(A) and 
the depicted the beneficiary as "directing.. .the operations of the corporation," 
implementing . . .policies and procedures," "receiving direction only from the p 
"overseeing the day-to-day operations," and indicated that he would "have authority to 
other personnel actions," and "exercise wide latitude of discretionary powers." 
assertions regarding the beneficiary's employment capacity are not sufficient to meet 
of proof. Merely repeating the language of the statute or regulations does not satisfy 
of proof. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1 103, 1 108 (E.D.N.Y. 1989), 
Cir. 1990); Avyr Associates Inc. v. Meissner, 1997 WL 188942 at *5 (S.D.N.Y.). 
After reviewing the vague job description submitted with the initial petition, the di 
petitioner submit a detailed job description listing specific duties performed by the b 
the percentage of time the beneficiary would spend on each task. In ,response, th 
same inadequate job description. Instead of providing the requesting breakdo 
divides his time, the petitioner ambiguously stated: "The amount of time spent o 
on what priority is assigned to those duties which in turn depends on numero 
particular deadline or urgency of the problem." As the- petitioner has not 
performed by the beneficiary, this statement is not helpful in determining wheth 
engaged in managerial or executive duties. The purpose of the request for 
information that clarifies whether eligibility for the benefit sought has 
$ 103.2(b)(8). The failure to submit requested evidence that 'precludes a ma 
grounds for denying the petition. 8 C.F.R. 6 103.2(b)(14). 
Although the director did not specifically reference the beneficiary's job desc 
notes on appeal that the described duties "are completely consistent with 
company. To require any further specificity would be redundant and mere surplusage." 
required to conclude that the beneficiary serves as a manager or executive 
the Act merely because he has been given the title of "president" and has be 
duties of any president." The regulations require the petitioner to submit a 
duties to be performed by this individual beneficiary within the scope 
petitioning company. Going on record without supporting documenta 
Purposes of meeting the burden of proof in these proceedings. Matter of Soflci, 22 I&N nec. 158, 165 
(Comm. 1998) (citing Matter ofTreasure CraB of Calijbrtzia, 14 1&N Dec. 190 (Reg. Comm. 19b2)). 
WAC 04 130 50691 
Page 7 
I 
The definitions of executive and managerial capacity have two parts. First, the petitioner mu 
beneficiary performs the high-level responsibilities that, are specified in the definitions. 
must show that the beneficiary primarily these specified responsibilities 
majority of his or her time on day-to-day 
1991 WL 144470 (9th Cir. July 30, 
performed by the beneficiary nor 
duties, it is impossible to conclude that his duties are primarily managerial or executive. 
As noted by counsel, the director focused oh the petitioner's staffing levels in determi 
beneficiary would be employed in a managerial or executive capacity. Pursuant to secti 
the Act, 8 U.S.C. (j 1101(a)(44)(~),'if staffing levels are used as a factor in determining 
is acting in a managerial or executive capacity, CIS must take into account the re 
organization, in light of the overall purpose and stage of development of the organiz 
that the director provided no basis for concluding that the petitioner's organizational 
to support a managerial or executive position. Counsel further states his belief that the 
the organizational chart carefully, noting that the chart clearly shows ten employ 
appears to only acknowledge a total of five employees in his decision. Counsel states 
employees are sufficient to relieve the beneficiary from performing non-qualifying du 
Jewelers, Inc. v. INS, 702 F. Supp. 1570, 1573 (N.D. Ga. 1988) in support of his asse 
not intended to limit the term "executive" to those beneficiaries who supervise large 
I Since the AAO is unable to determine the petitioner's actual staffing levels, it cannot be conclqded that the 
~etihoner employs sufficient employees to relieve the benefiieiary from performing the1 day-to-day 
administrative and operational functions of operating two service-oriented businesses. ~edardless, the 
reasonable needs of the petitioner will not supersedc the requirement that the beneficiary je primarily 
Upon review, the, AAO finds insufficient evidence in the record to establish the number of employees 
working for the petitioner at the time the petition was filed. While counsel claims that the petit:oner 
ten employees, the petitioner stated on Form 1-1 29 that it employed nine employees as of Apri. 
has twice submitted'an organizational chart depicting eight employees, including the beneficiary. 
above, the petitioner submitted its Forms DE-6, Emplo er's Quarterly Wage Report, for all fox 
2003. The petitioner claimed to employdas the manager of its learning center at 
petition was filed. The petitioner's Forms DE-6 show that she did not 'receive wages from the 
May or June 2003. Similarly, the petitioner claims to employas a teacher, but its 
shows that he received wages only in the second and third quarters of 2003. Absent additional 
AAO cannot conclude that these employees worked for the petitioner as of April 1, 2004. 
petitioner's other claimed eniployees did not receive wages in 2003. While it is possible th 
individuals were all hired during the first quarter of 2004, the petitioner has not submitted 
establish this fact. An organizational chart prepared by the petitioner is insufficient 
company's actual staffing levels, particularly when there are discrepancies in the record, such as 
that two of the petitioner's claimed employees stopped receiving wages in 2003. Again, goi1.g 
without supporting documentary evidence is not sufficient for purposes of meeting the burder 
these proceedin,gs. Matter of Soffici, 22 I&N Dec. at 165. 
actually 
employs 
1, 2004, and 
As noted 
quarters of , 
the time the . . 
petitiorier after 
Forms DE-6 
evidence, the 
Four of the 
.t they these 
evidence to 
evidence of the 
the evidence 
on record 
of proof in 
WAC 04 130 50691 
Page 8 
employed in a managerlal or executive capac~ty as requlred by the statute. See sect~ons 101(a) 44)(A) and (B) 
of the Act, 8 U.S.C. (j 1101(a)(44). As d~scussed above, the pet~tioner has not establ~sh th~s essentral 
element of ellglblllty. 
6 
i 
Counsel cites Mars Jewelers, Inc, v. INS, 702 F.Supp. 1570, 1573 (N,.D. 
proposition that the small size of a petitioner will not, by itself, undepine a finding that a 
in a primarily executive capacity. The AAO has long interpreted the regulations and 
discrimination against small or medium size businesses. However, the AAO has also 
petitioner to establish that the beneficiary's position consists of primarily managerial and 
that the petitioner has sufficient personnel to relieve the beneficiary from 
administrative tasks. 
Furthermore, counsel has furnished no evidence to establish that the facts of the instant petitioh 
to those in Mars Jewelers, Inc. v. INS. ~dditionall~, in contrast to the broad precedential authcrity 
law of a United States circuit court, the AAO is not bound to follow the published decision of 
district court in matters arising within the same district. See Matter of K-S, 20 I&N Dec., 71 
Although the reasoning underlying a, district judge's decision will be given due considerat'on 
properly before the AAO, the analysis dies not have to be followed as a matter of law. Id. at 
has not discussed the facts of the cited matter, it will not be considered in this proceeding. 
Counsel further asserts that the director "conveniently ignored the fact that six of the beneficiary's 
subordinates have college degrees. Counsel appears to be arguing that the beneficiary qualifie:~ 
pursuant to section 101(a)(44)(A)(ii) of the Act, as an employee who supervises and contro 
professional employees. 
are analogous 
of the case 
3 united States 
5 (BIA 1993). 
when it is 
7.9.- As counsel 
claimed 
as a manager 
s the work of 
in evaluating whether the beneficiary manages professional employees, the AAO must eva1ua:e 
subordinate positions require a baccalaureate degree as a minimum for entry into the field 
Section lOl(a)(32) ,of the Act, 8 U.S.C. (j 1101(a)(32), states: "The term 'profession' shall incl~de 
limited to architects, engineers, lawyers, physicians, surgeons, and teachers in elementary 
schools, colleges, academies, or seminaries." The term "profession" contemplates knowledge o- 
merely skill, of an advanced type in a given field gained by a prolonged course of specialized i 
study of at least baccalaureate level, which is a realistic prerequisite to entry into the 
endeavor. Matter of Sea, 19 I&N Dec. 81 7 (Comm. 1988); Matter of Ling, 13 I&N Dec. 35 
Matter ofshin, 1 1 I&N Dec. 686 (D.D. 1966). 
Therefore, the AAO must focus on the level of education iequired by the position, rather than 
by a subordinate employee. The possession of a bachelor's degree by a subordinate emplcyee 
automatically lead to the conclusion that an employee is employed in a professional capacity 
whether the 
of endeavor. 
but not be 
or secondary 
1earning;not 
ls~ction and 
particular field of 
(R.C. 1968); 
the degree held 
does not 
as that term is 
defined above. In the instant case, the petitioner has not established that a bachelor's degrFe is actually 
necessary, for example, to serve as a reading or math instructor in a learning center or to operbte a karaoke 
music studio. 
WAC 04 130 50691 , 
Page 9 I 
Nor has the petitioner shown that the beneficiary manages subordinates who supervise 
members or manage a clearly defined department or functlon of the pettttoner, such 
classified as managers or supervisors. As discussed above, the petitioner has not 
it employed its clalmed staff at the time of filmg, and therefore the AAO cannot 
two claimed managers. Thus, the petitioner has not shown that the 
supervisory, professional, or managerial, as requlred by sectlon 101(a)(44)(A)(ii) of the Act. 
The petitroner's claims in thls matter are hindered by a lack of evidence. As the petitlo C er has neither 
provided the comprehensive job de'scription requested by the director, nor 
of its actual staffing levels, the AAO cannot conclude that the beneficiary will be 
managerial or executive capacity. For this reason, the appeal will be dismissed. 
Beyond the decision of the director, the petitioner has not established that it maintal I s a qualifying 
relationship with the foreign entity as required 
subsidiary of the beneficiary's foreign 
minutes of a special meeting of the board of 
The' petition will be denied for the above stated reasons,. with each 
alternative basis for denial. In visa petition proceedings, the burden 
sought remains entirely with the petitioner. Section 291 of the Act, 8 
not been met. 
ORDER: The appeal is dismissed. , 
company issued 1,000 shares of stock to, a Korean corporati 
in cash. The petitioner also submitted a stock certificate n 
has not, however, established that '" and " " are the same 
company. The petitioner also submitted its 2003 IRS F 
which indicates on Schedule K that no corporation owns 50 percent or more of its stock. 
petitioner submitted its 2003 Form 100, California Corporation Franchise or Income Tax 
indicates that the beneficiary owns 100 percent of the petitioner's stock. It is incumbent upon. 
resolve any inconsistencies in the record by independent objective evidence. Any attemp: 
reconcile such inconsistencies will not suffice unless the petitioner submits competent 
pointing to where the truth lies. Matter of Ho, 19 I&N Dec. 582, 591-92 (BIA 1988). 
conflicting information, the AAO cannot conclude that the petitioner has a qualifying relationship 
beneficiary's foreign employer. For this additional reason, the appeal will be dismissed. 
, An application or petition that fails to comply with the technical requirements of the law may be 
AAO even if the Service Center does not identify all of the grounds for denial in the initial 
Spencer Enterprises, Inc.' v. United States, 229 F. Supp. 2d 1025, 1043 (E~D. Cal. 2001), affa. 
(9th Cir. -2003); see also Dor v. INS, 891 F.2d 997, 1002 n. 9 (2d Cir. 1989)(noting that the 
appeals on a de novo basis). 
Finally, the 
Return, which 
the petitioner to 
to explain or 
objt:ctive evidence 
Based 'on this 
with the 
denied by the 
decision. See 
345 F.3d 683 
AAO reviews