dismissed L-1A Case: Electrical Cable Sales

U.S. Department of Homeland Security 
20 Massachusetts Ave., N.W., Rm. A3042 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
Services 
File: office: CALIFORNIA SERVICE CENTER Date: JJN 0 1 2005 
Petition: Petition for a Nonimmigrant Worker Pursuant to Section 101 (a)(l5)(L) of the Immigration 
and Nationality Act, 8 U.S.C. 1 101 (a)(15)(L) 
IN BEHALF OF PETITIONER: 
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. 
C dministrative Appeals Office 
v 
DISCUSSION: The Director, California 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 Vice President as an 
L-1A nonimmigrant intracompany transferee pursuant to section lOl(a)(lS)(L) of the Immigration and 
Nationality Act (the Act), 8 U.S.C. 5 1101(a)(15)(L). The petitioner is a corporation organized in the State of 
California that o erates as a seller of electrical cables and related products. The petitioner claims that it is the 
subsidiary o -nd Cable Co., Ltd., located in Longkou, China. The beneficiary was 
initially granted a one-year period of stay to open a new office 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 the beneficiary will be 
employed in the United States in a primarily managerial or executive capacity. 
The petitioner subsequently filed an appeal. The director declined to treat the appeal as a motion and 
forwarded the appeal to the AAO for review. On appeal, counsel for the petitioner asserts that the beneficiary 
will be employed in a primarily managerial capacity. In support of this assertion, counsel submits a brief and 
a copy of an unpublished AAO decision. 
To establish eligibility for the L-1 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. 4 214.2(1)(3) states that an individual petition filed on Form 1-129 shall be 
accompanied by: 
(i) Evidence that the petitioner and the organization which employed or will employ the 
alien are qualifying organizations as defined in paragraph (I)(l)(ii)(G) of this section. 
(ii) Evidence that the alien will be employed in an executive, managerial, or specialized 
knowledge capacity, including a detailed description of the services to be performed. 
(iii) Evidence that the alien has at least one continuous year of full time employment 
abroad with a qualifying organization within the three years preceding the filing of 
the petition. 
(iv) Evidence that the alien's prior year of employment abroad was in a position that was 
managerial, executive or involved specialized knowledge and that the alien's prior 
education, training, and employment qualifies himiher to perform the intended 
Page 3 
services in the United States; however, the work in the United States need not be the 
same work which the alien performed abroad. 
The regulation at 8 C.F.R. €j 214.2(1)(14)(ii) also provides that a visa petition, which involved the opening of a 
new office, may be extended by filing a new Form 1-129, accompanied by the following: 
(A) Evidence that the United States and foreign entities are still qualifying organizations 
as defined in paragraph (l)(l)(ii)(G) of this section; 
(B) Evidence that the United States entity has been doing business as defined in 
paragraph (l)(l)(ii)(H) of this section for the previous year; 
(C) A statement of the duties performed by the beneficiary for the previous year and the 
duties the beneficiary will perform under the extended petition; 
(D) A statement describing the staffing of the new operation, including the number of 
employees and types of positions held accompanied by evidence of wages paid to 
employees when the beneficiary will be employed in a management or executive 
capacity; and 
(E) Evidence of the financial status of the United States operation. 
The 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 10 1 (a)(44)(A) of the Act, 8 U.S.C. €j 1 101(a)(44)(A), defines the term "managerial capacity" as an 
assignment within an organization in which the employee primarily: 
(i) manages the organization, or a department, subdivision, function, or component of 
the organization; 
(ii) supervises and controls the work of other supervisory, professional, or managerial 
employees, or manages an essential function within the organization, or a department 
or subdivision of the organization; 
(iii) if another employee or other employees are directly supervised, has the authority to 
hire and fire or recommend those as well as other personnel actions (such as 
promotion and leave authorization), or if no other employee is directly supervised, 
functions at a senior level within the organizational hierarchy or with respect to the 
function managed; and 
(iv) exercises discretion over the day to day operations of the activity or function for 
which the employee has authority. A first line supervisor is not considered to be 
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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. €j 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 August 26, 2003, the petitioner described the beneficiary's job 
duties as follows: 
1. She will assist the president in planning, developing and establishing policies and 
objectives of the company's business in international trade. 
2. She will submit long-term and short-term business plans to the president. She will 
direct the subordinates to establish their own responsibilities. 
3. She will review marketing reports and financial reports to ensure that the company's 
objectives are achieved. 
4. She will direct the market research and finalize marketing plans. 
5. She will direct to establish quality assurance system and review quality reports. 
6. She will attend major business negotiations to establish strategc relationship with the 
U.S. business partners. 
7. She will analyze operations to evaluate company's performance and to determine 
areas of cost reduction and program improvement. 
8. She will direct financial and budget activities to fund operations and increase 
efficiency. 
9. She will submit reports to the president concerning company's performance and 
business opportunities. 
On February 9, 2004, the director requested additional evidence. In part, the director instructed the petitioner 
as follows: 
Submit the following evidence to establish that the beneficiary has been or will be performing 
the duties of a manager or executive with the U.S. company: 
Duties in the U.S.: Submit a more detailed description of the beneficiary's duties in 
the U.S.. Be specific. Indicate exactly whom the beneficiary directs including their 
job title and position description. List all employees under the beneficiary's 
direction. Also, indicate the percentage of time spent in each of the listed duties. 
In a response dated March 12, 2004, in part the petitioner submitted a letter that repeats the beneficiary's job 
description provided above. The petitioner added that "[tlhe beneficiary will spend 5% of her working time 
onDuty 1, 5% on Duty 2, 15% on Duty 3, 15% on Duty4, 15% onDuty 5, 15% onDuty 6, 15% onDuty 7, 
10% on Duty 8, and 5% on Duty 9." The petitioner listed six employees as the beneficiary's subordinates, 
including a sales manager, three sales representatives, an office clerk, and a warehouse worker. 
On May 6, 2004, the director denied the petition. The director determined that the petitioner did not establish 
that the beneficiary will be employed in the IJnited States in a primarily managerial or executive capacity. 
The director noted that the petitioner's quarterly wage report for the second quarter of 2003 indicates that the 
petitioner had three employees including the beneficiary during the covered period. The director stated that 
"[tlhe fact that the petitioner claims that the beneficiary manages a business does not necessarily establish 
eligibility for classification as an intracompany transferee in a managerial or executive capacity . . . ." The 
director found that "[tlhere is insufficient detail regarding the actual duties to be performed by the 
beneficiary, and the percentage of time devoted to these duties." The director stated that "a preponderance of 
the beneficiary's duties will be directly providing the services of the business" and "[tlhe petitioner has 
provided no comprehensive description of the beneficiary's duties that would demonstrate the beneficiary 
would be managing the organization, or managing a department, subdivision, function, or component of the 
company." The director further commented that "the petitioner's evidence is not persuasive in establishing 
that the beneficiary will be managing a subordinate staff of professional, managerial, or supervisory personnel 
who relieve [her] fim performing non-qualifying duties." 
On appeal, counsel for the petitioner asserts that the beneficiary will be employed in a primarily managerial 
capacity. Counsel submits a brief in which he states the following: 
[Tlhe point here . . . is not whether the job duties are sufficiently [sic] in details to establish 
the managerial nature of the job, but to determine whether the beneficiary has supervised 
other managers or professionals, thereby proving that the beneficiary has not been performing 
many aspects of the day-to-day operations of the business. 
Counsel cites two unpublished AAO decisions to stand for the proposition that the sole employee of a 
petitioner can qualifying as a manager or executive. Counsel claims that the director ignored the fact that the 
petitioner employs seven individuals, including a sales manager. Counsel discusses the facts of a third 
unpublished AAO decision, and states that "[iln light of the reasoning of [the unpublished matter], . . . [CIS] 
has abused its discretionary authority in denying the petition by assuming that 1) the beneficiary spent most of 
her time performing nonmanagerial duties, 2) the beneficiary did not manage other managers and 
professionals." 
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. 
24.2(1)(3)(). 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. In the instant matter, counsel asserts that the beneficiary will be employed in a primarily 
managerial capacity. However, the initial description of the beneficiary's position fails to establish that her 
duties will be primarily managerial or executive in nature. 
The petitioner stated that the beneficiary will spend five percent of her time in part "direct[ing] the 
subordinates to establish their own responsibilities." From this description, it is unclear what this duty entails. 
The petitioner provided that the beneficiary will devote 15 percent of her time to "review[ing] marketing 
reports and financial reports to ensure that the company's objectives are achieved." Yet, upon examining the 
job descriptions for the beneficiary's subordinate employees, none are charged with the responsibility of 
preparing marketing reports and financial reports. Thus, the evidence of record suggests that the beneficiary 
will perfonn the non-qualifying duty of creating such documents. The petitioner indicated that the 
beneficiary will spend 15 percent of her time in part "direct[ing] the market research." Yet, none of the 
beneficiary's subordinates are charged with performing market research, and it is assumed that the beneficiary 
will perform this non-qualifying task. The petitioner stated that the beneficiary will spend 15 percent of her 
time in part "review[ing] quality reports." Yet, none of the beneficiary's subordinates have been delegated 
the duty of creating such reports, and it is assumed that the beneficiary will perform this non-qualifying task. 
The petitioner stated that the beneficiary will devote 15 percent of her time to "attend[ing] major business 
negotiations to establish strategic relationship with the U.S. business partners." However, the petitioner has 
failed to adequately describe these negotiations or to name its U.S. business partners, such that this duty can 
be deemed a managerial or executive task. Going on record without supporting documentary evidence is not 
sufficient for purposes of meeting the burden of proof in these proceedings. Matter of SofJ;ci, 22 I&N Dec. 
158, 165 (Cornrn. 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm. 
1972)). 
Accordingly, as much as 65 percent of the beneficiary's time has not been shown to be devoted to managerial 
or executive duties. The initial job description submitted for the beneficiary fails to establish that she will be 
employed in a primarily managerial or executive capacity. See 8 C.F.R. fj 214.2(1)(3)(ii). 
In his request for evidence, the director requested "a more detailed description of the beneficiary's duties in 
the U.S." Yet, in response to this portion of the director's request, the petitioner merely repeated the 
beneficiary's duties without further detail. The regulation states that the petitioner shall submit additional 
evidence as the director, in his or her discretion, may deem necessary. The purpose of the request for 
evidence is to elicit further information that clarifies whether eligibility for the benefit sought has been 
Page 7 
established, as of the time the petition is filed. See 8 C.F.R. $9 103.2(b)(8) and (12). The failure to submit 
requested evidence that precludes a material line of inquiry shall be grounds for denying the petition. 8 C.F.R. 
fj 103.2(b)(14). The petitioner failed to adequately respond to the director's request. The absence of more 
specific information regarding the beneficiary's duties precludes the material line of inquiry of whether the 
beneficiary will in fact be primarily engaged with managerial or executive duties. 
On appeal, counsel explains that the beneficiary will effectively act as president of the petitioner, as the 
president "is not working on the [sic] daily basis with the petitioner . . . ." Where, as here, a petitloner has 
been put on notice of a deficiency in the evidence and has been given an opportunity to respond to that 
deficiency, the AAO will not accept evidence offered for the first time on appeal. See Matter of Soriano, 19 
I&N Dec. 764 (BIA 1988); see also Matter of Obaigbena, 19 I&N Dec. 533 (BIA 1988). If the petitioner had 
wanted counsel's further description of the beneficiary's duties to be considered, it should have submitted 
such information in response to the director's request for evidence. Id. Under the circumstances, the AAO 
need not and does not consider the sufficiency of the additional explanation submitted on appeal. 
Counsel states that the emphasis of this proceeding should be on "whether the beneficiary has supervised 
other managers or professionals," not whether the petitioner has provided sufficient details of the 
beneficiary's duties. However, as indicated by the director, the beneficiary's duties are at issue in this 
proceeding. The petitioner has the burden of proof to establish that the beneficiary will be employed in a 
primarily managerial or executive capacity. 8 C.F.R. 4 214.2(1)(3)(ii); section 291 of the Act, 8 U.S.C. $ 
1361. Assessing whether the beneficiary supervises managerial or professional subordinates is but one factor 
in determining the beneficiary's employment capacity. Section 101(a)(44)(A)(ii) of the Act. The petitioner 
must provide sufficient evidence to show that the beneficiary's duties meet each of the criteria listed in 
section 101(a)(44)(A) of the Act. To that end, 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). The director appropriately examined the level of detail the 
petitioner provided in describing the beneficiary's duties. 
Nevertheless, the beneficiary's subordinates are an important consideration in this proceeding. The regulation 
at 8 C.F.R. $ 214.2(1)(14)(ii) requires the petitioner to provide "[a] statement describing the staffing of the 
new operation, including the number of employees and types of positions held . . . ." On Form 1-129, the 
petitioner indicated that it employs three individuals including the beneficiary. Yet, the organizational chart 
submitted with the initial petition reflects that the petitioner has four employees including the beneficiary. 
These representations regarding the petitioner's staff are inconsistent. 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, 59 1-92 (BIA 1988). 
In response to the director's request for evidence regarding the beneficiary's subordinates, the petitioner 
stated that it employs seven individuals including the beneficiary, and that the beneficiary supervises six 
subordinates. On appeal, counsel reiterates that the petitloner employs seven individuals. As correctly noted 
by the director, the petitioner's IRS Form 941, Employer's Quarterly Federal Tax Return, for the second 
Page 8 
quarter of 2003 reflects that the petitioner had three employees during the covered period. The petitioner has 
provided no documentation to support that it hired additional workers between June 30, 2003, the closing date 
of the second quarter of 2003, and August 26, 2003, the date the petition was filed. Again, going on record 
without supporting documentary evidence is not sufficient for purposes of meeting the burden of proof in 
these proceedings. Matter of Soffici, 22 I&N Dec. at 165. The possibility that the petitioner hired new 
workers after the date of filing the petition has no bearing on the petitioner's eligibility as of the filing date. 
The petitioner must establish eligibility at the time of filing the nonimmigrant 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). 
Five of the workers that the petitioner now claims to employ are not listed in its Form 941 for the second 
quarter of 2003. Accordingly, the petitioner has at most established that it employed three individuals as of 
the date the petition was filed, namely the beneficiary, the sales manager, and the employee titled "Operation 
[Department.]" 
Although the beneficiary is not required to supervise personnel, if it is claimed that her duties involve 
supervising employees, the petitioner must establish that the subordinate employees are supervisory, 
professional, or managerial. See fj 101(a)(44)(A)(ii) of the Act. 
In 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. 5 1 101(a)(32), states that "[tlhe 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 of Shin, 1 1 I&N Dec. 686 (D.D. 1966). 
Therefore, the AAO must focus on the level of education required by the position, rather than the degree held 
by a subordinate employee. The possession of a bachelor's degree by a subordinate employee does not 
automatically lead to the conclusion that an employee is employed in a professional capacity as that term is 
defined above. In the instant case, the petitioner has not established that a bachelor's degree is actually 
necessary to perform the duties of the sales manager or operation department employee. Thus, these 
individuals cannot be deemed professionals. Nor has the petitioner shown that these two employees supervise 
subordinate staff members or manage a clearly defined department or function of the petitioner, such that they 
could be classified as managers or supervisors. The fact that the sales manager possesses a managerial title is 
not sufficient to show that her duties are managerial in nature. The actual duties themselves reveal the true 
nature of the employment. 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). Thus, the petitioner has not shown that the beneficiary's subordinate employees are 
supervisory, professional, or managerial, as required by section 10 1 (a)(44)(A)(ii) of the Act. 
Page 9 
Counsel cites two unpublished AAO decisions to stand for the proposition that the sole employee of a 
petitioner can qualifying as a manager or executive. Counsel discusses the facts of a third unpublished AAO 
decision, and states that "[iln light of the reasoning of [the unpublished matter], . . . [CIS] has abused its 
discretionary authority in denying the petition by assuming that 1) the beneficiary spent most of her time 
performing nonmanagerial duties, 2) the beneficiary did not manage other managers and professionals." 
However, counsel has furnished no evidence to establish that the facts of the instant petition are analogous to 
those in the cited matters. Counsel's conclusory statement that the reasoning in the third cited matter renders 
the director's decision an abuse of discretion is not persuasive. Again, going on record without supporting 
documentary evidence is not sufficient for purposes of meeting the burden of proof in these proceedings. 
Matter of Soffici, 22 I&N Dec. at 165. Furthermore, while 8 C.F.R. fj 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. The cited decisions will not be considered in this proceeding. 
The record is not persuasive in demonstrating that the beneficiary has been or will be employed in a primarily 
managerial or executive capacity. The regulation at 8 C.F.R. 3 214.2(1)(3)(v)(C) allows the intended United 
States operation one year within the date of approval of the petition to support an executive or managerial 
position. There is no provision in CIS regulations that allows for an extension of this one-year period. If the 
business is not sufficiently operational after one year, the petitioner is ineligble by regulation for an 
extension. In the instant matter, the petitioner has not established that it has reached the point that it can 
employ the beneficiary in a predominantly managerial or executive position. 
Accordingly, the petitioner has not established that the beneficiary will be employed in a primarily managerial 
or executive capacity, as required by 8 C.F.R. fj 2 14.2(1)(3)(ii). For this reason, the appeal will be dismissed. 
Beyond the decision of the director, the petitioner has not established that it has a qualifying relationship with 
the beneficiary's foreign employer as required by 8 C.F.R. 3 214.2(1)(l)(ii)(G), as the petitioner has failed to 
establish that the foreign entity is a qualifying organization engaged in the regular, systematic, and continuous 
provision of goods and/or services pursuant to 8 C.F.R. 3 214.2(I)(l)(ii)(H). The regulation at 8 C.F.R. 
3 214.2(l)(ii)(G)(2) reflects that, in order for an entity to be considered a qualifying organization, the 
petitioner must show that it: 
Is or will be doing business (engaging in international trade is not required) as an employer in 
the United States and at least one other country directly or through a parent, branch, affiliate, 
or subsidiary for the duration of the alien's stay in the United States as an intracompany 
transferee . . . . 
The regulation at 8 C.F.R. 9 214.2(l)(ii)(H) defines the term "doing business" as: 
[Tlhe regular, systematic, and continuous provision of goods and/or services by a qualifying 
organization and does not include the mere presence of an agent or office of the qualifying 
organization in the United States and abroad. 
- Page 10 
The regulation at 8 C.F.R. fj 214.2(1)(14)(ii)(A) requires the petitioner to submit "[elvidence that the United 
States and foreign entities are still qualifying organizations." The petitioner provided no new evidence to 
show that the foreign entity continues to do business. The documentation that the petitioner provided of the 
foreign entity's operations represents business activity that occurred at least one year prior to filing the 
present petition. Such documentation does not serve as sufficient evidence that the foreign entity was 
engaged in "the regular, systematic, and continuous provision of goods andlor services" during the one-year 
period prior to filing the petition, including the date the petition was filed. See 8 C.F.R. 5 214.2(l)(ii)(H). 
Thus, the petitioner has failed to show that the foreign entity is a qualifying organization. See 8 C.F.R. 
g 2 14.2(l)(ii)(G)(2). Accordingly, the petitioner has not established that it has a qualifying relationship with 
the foreign entity. See 8 C.F.R. fj 214.2(1)(14)(ii)(A). 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 
Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 2001), ufyd. 345 F.3d 683 
(9th Cir. 2003); see also Dor v. INS, 891 F.2d 997, 1002 n. 9 (2d Cir. 1989)(noting that the AAO reviews 
appeals on a de novo basis). 
In visa petition proceedings, the burden of proving eligbility for the benefit sought remains entirely with the 
petitioner. Section 291 of the Act, 8 U.S.C. 4 1361. Here, that burden has not been met. Accordingly, the 
director's decision will be affirmed and the petition will be denied. 
ORDER: The appeal is dismissed.