dismissed L-1A Case: Educational Sales

U.S. Department of Homeland Security 
20 Massachusetts Ave., N.W., Rm. A3042 
Washngton, DC 20529 
U. S. Citizenship 
and Immigration 
Petition: Petition for a Nonimmigrant Worker Pursuant to Section 10 1 (a)(15)(L) of the Immigration 
and Nationality Act, 8 U.S.C. 9 1 101(a)(15)(L) 
IN BEHALF OF PETITIONER: 
INSTRUCTIONS: 
This is the decision of the Adminish-ative 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. 
-{&be* P. Wiemann, Director 
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 Sales 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 1 lOl(a)(lS)(L). The petitioner is a corporation organized in the State of 
Florida that operates as a seller of educational books and related materials. The petitioner claims that it is the 
affiliate of--C.A., located in Caracas, Venezuela. The beneficiary was initially approved for 
L-1 status in the United States, and the petitioner now seeks to extend the beneficiary's stay. 
The director denied the petition concluding that the petitioner did not establish that: (1) the beneficiary will 
be employed in the United States in a primarily managerial or executive capacity, and (2) the beneficiary was 
employed abroad 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 AAO for review. On appeal, counsel for the petitioner asserts that the evidence of 
record shows that the beneficiary will be employed in a primarily managerial or executive capacity. Counsel 
further asserts that the director's denial was an abuse of discretion, as she failed to articulate why prior 
Citizenship and Immigration Services (CIS) findings that the beneficiary is employed in a primarily 
managerial or executive capacity were erroneous. In support of these assertions, counsel 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 l(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 first 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 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; 
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(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. 
In a letter submitted with the initial petition on June 4, 2003, the petitioner described the beneficiary's job 
duties as follows: 
[The petitioner] wishes to employ [the beneficiary] in the managerial position of Sales 
Manager in charge of Sales and Distribution within the company. [The beneficiary] will be 
responsible for the daily administration, direction and supervision of this division. In 
addition, he will participate in the formulation, development, recommendation, 
implementation, and administration of the company's policies and procedures with respect to 
sales and distribution. He will ensure that proper sales and distribution policies and practices 
are followed. He will direct the activities of subordinate managers and will supervise the 
elaboration and implementation of the company's business development plans in the area of 
sales and distribution. 
Based on our experience - and as standard practice in the industry - we assign one Sales 
Manager to every five to six sales persons. 
The petitioner submitted an organizational chart that shows that it employs 12 individuals, including a 
president, a CEO, two sales managers, an accountant, two collectors, and five salesmen. 
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On September 25, 2003, the director requested additional evidence. In response, the petitioner provided 
additional description of the beneficiary's proposed duties as follows: 
Under the supervision of the CEO, [the beneficiary] will continue to be responsible for the 
daily administration, direction and supervision of [the petitioner's] Sales Department in the 
State of Florida, and for developing a market in the Commonwealth of Puerto Rico. In 
addition, he will be responsible for the formulation, development, recommendation,, 
implementation, and administration of the company's policies and procedures with respect to 
sales and distribution in the new market within the Commonwealth of Puerto Rico. [The 
beneficiary] will ensure that proper sales and distribution policies and practices are followed, 
and assist the CEO in making purchase decisions, as he is more directly involved with the 
customers and is able to better identify their needs and desires. He will direct the activities of 
subordinate managers and supervise the elaboration and implementation of the company's 
business development plans in the sales and distribution area. 
[The beneficiary] will have full authority to hire, fire, and promote his subordinate staff, as 
well as authorize their leave. 
Since [the petitioner] is dedicated to the sale and distribution of didactic materials, sales is an 
essential function within [the] company. 
[The beneficiary] will be relieved of non-managerial duties by his subordinate staff of 
salespersons. These salespersons are individuals with a high school education, some in the 
process of completing a university degree. These subordinate employees will be in charge of 
all non managerial sales duties including, inter alia, shipping and handling of the merchandise 
sold by our company. 
The petitioner provided its Florida State Quarterly Report for the second quarter of 2003 that reflects that it 
employed three workers in the month that the petition was filed. 
On March 29, 2004, the director denied the petition. In part, the director determined that the petitioner did 
not establish that the beneficiary will be employed in the United States in a primarily managerial or executive 
capacity. The director stated that the petitioner has not shown that the beneficiary supervises and controls the 
work of other supervisory, professional, or managerial employees. The director found that the beneficiary is 
merely handling the day-to-day operations of the petitioner and acting as a first-line supervisor. 
On appeal, counsel asserts that the evidence of record shows that the beneficiary will be employed in a 
primarily managerial or executive capacity. Counsel states that Citizenship and Immigration Services (CIS) 
previously approved an L-IA petition and Form 1-140 immigrant petition on behalf of the beneficiary, and 
thus the director's decision contradicts prior CIS findings. Counsel cites the decision in Omni Packaging v. 
I.N.S., 733 F. Supp. 500 (D.C.P.R. 1990) to stand for the proposition that the director must explain why the 
prior approvals were erroneous in order to properly deny the present petition. Counsel further asserts that 
"CIS did not accord the proper weight to the evidence submitted with regard to [the petitioner's] 
organizational structure, and the managerial nature of [the beneficiary's] employment within that structure." 
Counsel states that [the beneficiary] "supervises other employees, as well as manages a department and 
essential function of [the petitioner's] United States operations." Counsel claims that the petitioner's 
organizational chart shows that the beneficiary manages five salespersons and functions at a senior level 
within the petitioner's hierarchy. 
Upon review, counsel'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. 
$ 242()(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. The petitioner must specifically state whether the beneficiary is primarily employed in a 
managerial or executive capacity. 
In the instant case, counsel cites the statutory definition of managerial capacity contained in section 
101(a)(44)(A) of the Act, yet counsel claims that evidence of record shows that the beneficiary will be 
employed in a managerial or executive capacity. Thus, it is unclear whether the petitioner intends to represent 
that the beneficiary will be employed primarily in both capacities. To sustain an assertion that the beneficiary 
will be primarily employed in both a managerial and executive capacity, the petitioner must establish that the 
beneficiary meets each of the four criteria set forth in the statutory definition for executive duties under 
section 101(a)(44)(B) of the Act, and the statutory definition for managerial duties under section 
101(a)(44)(A) of the Act. At a minimum, the petitioner must establish that the beneficiary is primarily 
employed in one or the other capacity. See 8 C.F.R. 5 214.2(1)(3)(ii). 
The petitioner has not shown that the submitted descriptions of the beneficiary's duties are a true account of 
the tasks he will perfom in the United States. The petitioner states that the majority of the beneficiary's 
duties involve managing the petitioner's sales by supervising five salespersons. Among the beneficiary's 
related duties are "ensur[ing] that proper sales and distribution policies and practices are followed," 
"direct[ing] the activities of subordinate managers," and "supervis[ing] the elaboration and implementation of 
the company's business development plans in the area of sales and distribution." The petitioner further states 
that "[the beneficiary] will be relieved of non-managerial duties by his subordinate staff of salespersons." 
However, the petitioner has failed to document that it employs any subordinates that report to the beneficiary. 
The petitioner's organizational chart reflects that it employs 12 individuals, including a president, a CEO, two 
sales managers, an accountant, two collectors, and five salesmen. Yet, the petitioner's Florida State 
Employer's Quarterly Report for the second quarter of 2003 shows that the petitioner had only three staff 
members during June 2003, the month that the petition was filed. Thus, the petitioner's organizational chart is 
inconsistent with the State quarterly report. It is incumbent upon the petitioner to resolve any inconsistencies 
in the record by independent objective evidence. Any attempt to explain or reconcile such inconsistencies will 
not suffice unless the petitioner submits competent objective evidence pointing to where the truth lies. Matter 
of Ho, 19 I&N Dec. 582, 591-92 (BIA 1988). The petitioner has failed to explain this inconsistency, or to 
offer any additional documentation to show that it employs additional workers. Going on record without 
supporting documentary evidence is not sufficient for purposes of meeting the burden of proof in these 
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proceedings. Matter of SofJici, 22 I&N Dec. 158, 165 (Comm. 1998) (citing Matter of Treasure Craft of 
California, 14 I&N Dec. 190 (Reg. Comm. 1972)). 
In comparing the organizational chart with the quarterly report, the documents show that the petitioner 
employed a CEO and two sales managers at the time of filing the petition. As the beneficiary is one of the 
two sales managers, the evidence of record does not support that he supervises any subordinates. As the 
petitioner has failed to establish that the beneficiary supervises subordinate employees, it has not supported its 
claim that his duties involve oversight of a department with significant supervisory authority. Accordingly, 
the job descriptions are not deemed an accurate account of the beneficiary's true duties. Contrary to the 
petitioner's assertion, the evidence of record does not show that "[the beneficiary] will be relieved of non- 
managerial duties by his subordinate staff of salespersons." Doubt cast on any aspect of the petitioner's proof 
may, of course, lead to a reevaluation of the reliability and sufficiency of the remaining evidence offered in 
support of the visa petition. Matter of Ho, 19 I&N Dec. at 591. 
Though counsel claims that the beneficiary manages five salespersons and functions at a senior level within 
the petitioner's hierarchy, without documentary evidence to support the claim, the assertions of counsel will 
not satisfy the petitioner's burden of proof. The assertions of counsel do not constitute evidence. Matter of 
Obaigbena, 19 I&N Dec. 533, 534 (BIA 1988); Matter Of Laureano, 19 I&N Dec. 1 (BIA 1983); Matter of 
Ramivez-Sanchez, 17 I&N Dec. 503, 506 (BIA 1980). Counsel's assertion that "CIS did not accord the proper 
weight to the evidence submitted with regard to [the petitioner's] organizational structure, and the managerial 
nature of [the beneficiary's] employment within that structure" is not persuasive in light of the absence of 
sufficient evidence to support the petitioner's claim. 
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. 8 1101(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 Coup. v. INS, 153 F. Supp. 2d 7, 15 (D.D.C. 2001). As required by section 
101(a)(44)(C) of the Act, if staffing levels are used as a factor in determining whether an individual is acting 
in a managerial or executive capacity, CIS must take into account the reasonable needs of the organization, in 
light of the overall purpose and stage of development of the organization. 
The petitioner operates as a seller of educational books and related materials. Thus, it is evident that the 
reasonable needs of the petitioner require its employees to perform numerous non-managerial and non- 
executive- tasks such as placing orders for books, answering questions from customers about merchandise, 
tracking the petitioner's inventory, managing a checking account and paying bills, answering telephones, 
receiving deliveries, conducting sales transactions and performing related sales duties. The petitioner states 
that "[slince [it] is dedicated to the sale and distribution of didactic materials, sales is an essential function 
within [the] company." Thus, it is evident that significant efforts from the petitioner's staff involve non- 
qualifying sales functions. As the beneficiary is one of only two documented employees with sales duties, it 
is clear that he must devotes a substantial amount of time to non-managerial and non-executive sales tasks. In 
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fact, the petitioner provides that "[the beneficiary] is more directly involved with the customers and is able to 
better identify their needs and desires," which supports that he is in direct contact with end customers in the 
role of a salesman. 
Further, as no other employees are charged with the other non-qualifying day-to-day duties listed above, it is 
assumed that the beneficiary also participates in these activities. Accordingly, the reasonable needs of the 
petitioner suggest that the beneficiary must spend a significant amount of time performing the tasks necessary 
to provide the petitioner's services. 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). The petitioner has failed to 
establish that these non-managerial and non-executive tasks do not constitute the majority of the beneficiary's 
time. See 8 C.F.R. 3 214.2(1)(3)(ii). 
It is further noted that the petitioner's organizational chart identifies prospective positions for which it intends 
to hire in the future. Yet, the petitioner must establish eligibility at the time of filing the nonirnmigrant visa 
petition. A visa petition may not be approved at a future date after the petitioner or beneficiary becomes 
eligible under a new set of facts. Matter of Michelin Tire Corp., 17 I&N Dec. 248 (Reg. Comm. 1978). The 
fact that the petitioner intends to hire additional workers at a future date is not probative of its eligibility as of 
the date of filing the petition. 
Counsel states that CIS previously approved an L-IA petition and Form 1-140 immigrant petition on behalf of 
the beneficiary, and thus the director's decision contradicts prior CIS findings. Counsel cites the decision in 
Ornni Packaging v. I.N.S., 733 F. Supp. 500 (D.C.P.R. 1990) to stand for the proposition that the director 
must explain why the prior approvals were erroneous in order to properly deny the present petition. However, 
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. See Matter of K-S-, 20 I&N Dec. 715 
(BIA 1993). Although the 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. 
As counsel correctly states, the court in Omni Packaging v. United States Immigration and Naturalization 
Service found that the Immigration and Naturalization Service (INS) abused its discretion in denying a 
petition for L-1A status. The court found that the INS had the burden to explain why previous approvals 
based on identical facts were in error in order to properly deny the petition at issue. Yet, counsel fails to note 
that the court in Omni Packaging revisited the issue and later determined that the Immigration and 
Naturalization Service had properly denied the immigrant petition and that it was not estopped from finding 
that the alien was not manager or executive after having determined that he was manager or executive for 
purposes of issuing an L-1 visa. See Omni Packaging, Inc. v. INS, 930 F. Supp. 28 (D.C.P.R. 1996). 
Further, in the instant matter, the AAO notes that the present petition is a separate matter from the petitioner's 
immigrant petition and prior L-1A petition on behalf of the beneficiary. The burden of proving eligibility for 
the benefit sought remains entirely with the petitioner. Section 291 of the Act, 8 U.S.C. 3 1361. The 
petitioner must submit sufficient evidence into the current record to sustain its burden. Evidence from the 
petitioner's immigrant petition or prior L-1A petition on behalf of the beneficiary is not part of the current 
record. Contrary to counsel's suggestion, the fact that a prior petition was approved on behalf of the 
beneficiary does not serve as prima facie evidence that eligibility has been established in the present 
proceedings. Established precedent reflects that prior approvals do not preclude CIS from denylng an 
extension of the original visa based on reassessment of the petitioner's qualifications. Texas A&M Univ. v. 
Upchurch, 99 Fed. Appx. 556, 20045th ~ir; 2004). AS-discussed above, the petitioner has 
failed to provide sufficient evidence in the present proceeding to establish that the beneficiary will be 
employed in a primarily managerial or executive capacity. 
Based on the foregoing, the petitioner has not established that the beneficiary will be employed in a primarily 
managerial or executive capacity. For this reason, the appeal will be dismissed. 
The second issue in this proceeding is whether the petitioner has established that the beneficiary was 
employed abroad in a primarily managerial or executive capacity. 
In a letter submitted with the initial petition, the petitioner described the beneficiary's duties as follows: 
In his position of Sales Manager with [the foreign entity], [the beneficiary] was responsible 
for the day-to-day development, supervision, direction and monitoring of the sales and 
distribution efforts of [the foreign entity's] sales staff. He participated actively in the 
formulation, development, implementation and administration of the sister corporation's 
policies and procedures in the area of sales and distribution. In addition, he managed, 
directed and supervised the work of numerous other sales professionals employed by the 
[foreign entity]. 
In the director's request for evidence, she instructed the petitioner to provide: 
A definitive statement describing the foreign employment of the beneficiary, including: 
Position title. 
List all duties. 
Percentage of time spent on each duty. 
Number of subordinate managerslsupervisors or other employees who report directly 
to the beneficiary. 
A brief description of their job titles and duties; give their educational background; if 
the beneficiary does not supervise other employees, specify what essential function 
within the organization he manages. 
Specific dates his employment began and ended in each position with your company. 
Indicate the qualifications required for the position. 
Indicate the level of authority held by the beneficiary. 
Indicate whether or not the beneficiary functions at a senior level within the 
corporation. 
Specify his position within the organizational hierarchy. 
Indicate who provides the product saleslsenices or produces the product of the 
business. 
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1 
In response, the petitioner stated the following: 
[The beneficiary] served in virtually the same managerial position with [the foreign entity] 
from January 1, 2000, to June 30, 2001. [The beneficiary] was employed in the position of 
Sales Manager of [the foreign entity]. In this position, he was responsible for the daily 
administration, direction and supervision of [the foreign entity's] Sales Department in 
Venezuela. In addition, he was responsible for the formulation, development, 
recommendation, implementation, and administration of the company's policies and 
procedures with respect to sales and distribution. He ensured that proper sales and 
distribution policies and practices were followed. He directed the activities of subordinate 
managers and supervised the elaboration and implementation of the company's business 
development plans in the sales and distribution area. 
The petitioner indicated that as much as 70 percent of the beneficiary's duties involved supervising 
subordinate employees. The petitioner submitted an organizational chart for the foreign entity that reflects 
that the beneficiary supervised a sales supervisor and two salespersons. 
In denying the petition, the director found that the petitioner did not establish that the beneficiary was 
employed abroad in a primarily managerial or executive capacity. 
On appeal, counsel does not directly address this ground for denial. As discussed above, counsel's assertion 
that the director's decision was an abuse of discretion due to failing to explain why prior approvals were 
erroneous is not persuasive. 
The job description submitted for the beneficiary's duties abroad contains verbatim passages from the 
description of the beneficiary's prospective duties in the United States. While the petitioner claims that the 
beneficiary supervised subordinate employees abroad, the only evidence submitted to support this assertion 
consists of the foreign entity's organizational chart. As noted above, the petitioner's U.S. organizational chart 
is deemed not reliable evidence due to material inconsistencies with the petitioner's State quarterly report. 
Thus, the AAO is not inclined to accept the foreign entity's organizational chart as conclusive evidence of its 
staffing in the absence of independent corroborative evidence. Again, going on record without supporting 
documentary evidence is not sufficient for purposes of meeting the burden of proof in these proceedings. 
Matter of Sof$ci, 22 I&N Dec. at 165. Further, as noted above, the description of the beneficiary's duties in 
the United States is not deemed an accurate account of his true duties. The fact that the description of the 
beneficiary's foreign duties contains verbatim passages from the U.S. job description calls into question its 
accuracy. Again, doubt cast on any aspect of the petitioner's proof may, of course, lead to a reevaluation of 
the reliability and sufficiency of the remaining evidence offered in support of the visa petition. Matter of Ho, 
19 I&NDec. at 591. 
Based on the foregoing, the petitioner has failed to submit sufficient evidence to establish that the beneficiary 
was employed abroad in a primarily managerial or executive capacity. For this additional reason, the appeal 
will be dismissed. 
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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. The petitioner has not met this burden. 
ORDER: The appeal is dismissed.