dismissed L-1A Case: Electro-Magnetic Systems

wing drt. deleted to 
pwmt cleady unwarranted 
fmrasion of pwna1 princy 
PmsC COPY 
U.S. Department of Homeland Security 
20 Massachusetts Ave., N.W., Rm. A3042 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
Services 
File: LIN 04 1 10 5 1958 Office: NEBRASKA SERVICE CENTER Date: APR 0 3 2Q@ 
Petition: 
 Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(15)(L) of the Immigration 
and Nationality Act, 8 U.S.C. $ 1101(a)(15)(L) 
IN BEHALF OF PETITIONER: 
INSTRUCTIONS : 
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to 
the office that originally decided your case. Any further inquiry must be made to that office. 
-- : >--- .. 
e 
44 
~obed~. W~ernann, D~rector 
Administrative Appeals Office 
LIN 04 110 51958 
Page 2 
DISCUSSION: The Director, Nebraska 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 seeks to change the beneficiary's status from specialized knowledge worker (L-1B) to manager 
or executive (L-1A) and extend his period of stay as a nonimmigrant intracompany transferee pursuant to 
fj 101(a)(15)(L) of the Immigration and Nationality Act, 8 U.S.C. 1101(a)(15)(L). The petitioner is a 
corporation organized in the State of North Carolina that is engaged in the distribution of electro-magnetic 
systems for industry. The petitioner claims that it is the affiliate of - located in 
Tamworth, Staffordshire, UK. The beneficiary was initially granted a one-year period of stay in the United 
States, which was subsequently extended for an additional two years. The petitioner now seeks to extend the 
beneficiary's stay for an additional four years. 
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 director 
misconstrued evidence submitted by the petitioner which described the beneficiary's responsibilities, and that 
his duties are in fact managerial and supervisory. In support of this assertion, counsel for the petitioner 
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 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. fj 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 (l)(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. 
LIN 04 110 51958 
Page 3 
(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 hirnlher to perform the intended 
services in the United States; however, the work in the United States need not be the 
same work which the alien performed abroad. 
The 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. $ 1101(a)(44)(A), defines the term "managerial capacity" as an 
assignment within an organization in which the employee primarily: 
(i) 
 manages the organization, or a department, subdivision, function, or component of 
the organization; 
(ii) 
 supervises and controls the work of other supervisory, professional, or managerial 
employees, or manages an essential function within the organization, or a department 
or subdivision of the organization; 
(iii) 
 if another employee or other employees are directly supervised, has the authority to 
hire and fire or recommend those as well as other personnel actions (such as 
promotion and leave authorization), or if no other employee is directly supervised, 
functions at a senior level within the organizational hierarchy or with respect to the 
function managed; and 
(iv) 
 exercises discretion over the day to day operations of the activity or function for 
which the employee has authority. A first line supervisor is not considered to be 
acting in a managerial capacity merely by virtue of the supervisor's supervisory 
duties unless the employees supervised are professional. 
Section 101(a)(44)(B) of the Act, 8 U.S.C. $ 1101(a)(44)(B), defines the term "executive capacity" as an 
assignment within an organization in which the employee primarily: 
(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. 
LIN 04 110 51958 
Page 4 
With the initial petition, counsel for the petitioner, in a letter dated February 23, 2004, explained that the 
beneficiary was initially sent to the United States to render his services in the capacity of a Service Engineer. 
Counsel claims that due to increases in the petitioner's sales, the petitioner must expand its Service 
Department. As a result, counsel claims that the petitioner has appointed the beneficiary to serve as manager 
of its service department and that the beneficiary will simultaneously function in an engineering capacity. 
The petitioner also submitted a letter dated February 17, 2004. In its letter, the petitioner briefly described the 
beneficiary's proposed managerial duties, stating 
 "[iln addition to acting in a service capacity, [the 
beneficiary] is now Service manager with full responsibility for the managing [of] the service operations of 
the company. He supervises the field activities of all company service representatives." 
The director found this initial evidence to be insufficient. Consequently, a request for evidence was issued on 
April 7, 2004. In the request, the director asked the petitioner to submit a detailed description of the 
beneficiary's actual day-to-day tasks in his new managerial position, along with an estimate of the percentage 
of time that he would devote to each task. Additionally, the director requested an organizational chart for the 
petitioner which identified all eleven of its employees by name and position title. Finally, the director 
requested a brief description of each employee's duties. 
In a response received on June 30, 2004, the petitioner submitted the requested evidence. With regard to the 
beneficiary's duties, the petitioner provided the following description. 
1. Develop and manage the Service Department budget for the company. 
The Service Department is now the largest department in the company and is expected to 
grow to six service representatives by the end of the calendar year. In addition, [the 
beneficiary] will develop an Applications function within the Department and will identify, 
hire and train Application Engineers over the next year. It is currently anticipated that the 
company will hire up to two Applications Engineers over the next year. [The beneficiary] 
will be responsible for a staff of six Service representatives and two Applications Engineers 
over the next 18 months. Development of the departmental plan and budget requires 
oversight on a monthly basis and normally involves approximately 10% of [the beneficiary's] 
time. 
2. Hire, train and supervise the Service staff. 
[The beneficiary] is responsible for managing the activities of the Service Representatives 
including technical training, and customer service, supervision of daily activities, including 
scheduling throughout the Service territory (USA, Canada and Mexico), approval of expenses 
and travel. The company now has four full-time Service Representatives and he is charged 
with assuring that the Company can meet the service requirements for the 1500 current 
customers as well as all new customers. Based on sales trends, [the beneficiary] will be 
required to hire and train at least two additional Service Representatives over the next six to 
nine months. In the past, the Company has transferred Service Representatives from 
LIN 04 110 51958 
Page 5 
affiliated companies. However, the Company intends to hire US nationals. It is unlikely that 
these new hires will be familiar with the Company's proprietary technology so [the 
beneficiary] will have to develop training manuals and protocols to assure technical 
proficiency. In addition to Service Representatives, [the beneficiary] will also hire and train 
at least two Application Engineers over the next year. 
[The beneficiary] has hired the existing Service staff for the Company. He interviewed and 
evaluated their knowledge of the [company's] proprietary technology, product and service 
requirements and training. He also evaluates prospective employees, determines 
qualifications and, in accordance with the company's budget and service requirements, hires 
and trains the staff. He determines what training and qualifications are required to fulfill the 
company's product commitments. The recruitment and training of prospective employees is 
an ongoing function requiring about 5% of his time on a weekly basis. 
[The beneficiary] is responsible for overseeing and managing installations of company 
products throughout the United States, Canada and Mexico. This responsibility includes 
coordination with the Sales Department, the manufacturing facilities in Italy, shipping 
companies to ensure on-time arrival as well as supervision of installation crews. Supervision 
and oversight of the installation function is a critical responsibility that can determine the 
financial performance of the company. Subject to normal corporate responsibility 
delegations, [the beneficiary] makes essentially all decisions concerning allocation of Service 
Department employee time, approval of overtime and employee suitability for this function. 
[The beneficiary] is responsible for ongoing training of the Service staff. He coordinates 
training with and through the parent company, assures that all Service personnel receive 
ongoing training both at the manufacturing facility level and the customer level. [The 
beneficiary] develops the training materials and conducts training sessions as necessary. [The 
beneficiary] also assures that the Sales force receives adequate technical training in the 
company's technology. 
[The beneficiary] also prepares staff to train customers in the use and application of company 
products. [The beneficiary] devotes approximately 15% of his time "training the trainers" 
and customers. 
Together, the various aspects of managing the Sales Department - from hiring, training, 
supervising and oversight takes approximately 75% of [the beneficiary's] time on a daily 
basis. 
3. Applications Manager. 
[The beneficiary] has also been assigned responsibility for developing an Applications 
function for the company. In this capacity, [the beneficiary] will be responsible for providing 
technical support to the Service and Sales Departments. He will relate directly to customers 
LIN 04 110 51958 
Page 6 
in assuring proper product configuration based on customer specifications and requirements. 
He will be responsible for working with the parent company in enhancing existing 
technologies and developing new ones to meet the company's principal industrial markets: 
injection molding, milling machines and heavy duty materials handling machinery. He will 
be expected to hire, train and manage at least two Applications Engineers to assist the Sales 
Department. [The beneficiary] will devote approximately 15% of his time to this function. 
4. Service Assistance. 
Because of [the beneficiary's] experience with the company's technology, [the beneficiary] 
will from time to time provide direct assistance to customers when complications arise 
beyond the capability of the average company Service Representative. This will involve 
approximately 5% of the [beneficiary's] time. 
Additionally, the petitioner provided the following summary of duties: 
1. Departmental Supervision (involves 75% 
scheduling, training, supervision, contact with customers) 
2. Development of Applications Function 10% 
3. Liaison with Sales Department - training, application support 10% 
4. Specialized Service Calls 5% 
The petitioner's organizational chart demonstrated that the beneficiary reported directly to the 
Operations Manager, who in turn reported to the president. Directly under the beneficiary's 
supervision were four Service Representatives, and the chart further indicated that an additional two 
Service Representative positions would be filled in the future. With regard to the Service 
Representatives, the petitioner stated that they "are responsible for installation, service and repair of 
company products. This includes on-site service and customer training. Each of the four 
representatives was delegated with a specific territory to service. 
On August 10, 2004, the director denied the petition. The director determined that, based on the 
information provided, it appeared the beneficiary was engaged primarily in non-qualifying tasks and 
thus could not be considered as a managerial or executive employee. On appeal, counsel for the 
petitioner alleges that the director focused on only a small section of the beneficiary's stated duties 
and one part of the regulations, and ignored the remaining duties and other pertinent aspects of the 
statute. Counsel addresses each of the four aspects that define managerial capacity and attempts to 
demonstrate how the beneficiary's stated duties satisfy each of the individual definitions. 
LIN 04 110 51958 
Page 7 
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. 
214.2()(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. The petitioner must specifically state whether the beneficiary is primarily employed in a 
managerial or executive capacity. In this case, the petitioner specifically indicated that the beneficiary would 
be employed in a managerial capacity. 
In this case, the petitioner initially gave a general overview of the beneficiary's duties in its February 17, 2004 
letter. In that letter, generalizations were made with regard to the standard activities of the beneficiary. For 
instance, the petitioner advised that he would act as the service manager for the company as well as act in a 
service capacity. This generalized statement did little to clarify the exact nature of the beneficiary's job, his 
responsibilities, and his daily functions. 
In response to the director's request for evidence, additional details regarding the beneficiary's position were 
provided. The petitioner claimed that the beneficiary oversees four service representative, all of whom are 
allegedly professionals, and that the majority of his time is devoted to the various aspects of managing the 
sales department, including "installation, service, onsite repair and customer training," "develop training 
manuals," and training service personnel. Although the petitioner claims to employ professional subordinate 
employees beneath the beneficiary, it fails to explain why the beneficiary is engaged in such a wide array of 
tasks, and why the subordinate employees do not relieve him from these obligations. Whether the beneficiary 
is a managerial or executive employee turns on whether the petitioner has sustained its burden of proving that 
his duties are "primarily" managerial or executive. See sections 101(a)(44)(A) and (B) of the Act. Here, 
despite providing a percentage breakdown of the time the beneficiary devotes to each generalized field of 
duties, the petitioner fails to document what proportion of the beneficiary's duties within these areas would be 
managerial functions and what proportion would be non-managerial. The petitioner lists the beneficiary's 
duties as including both managerial and administrative or operational tasks, but fails to quantify the time the 
beneficiary spends on each of these tasks. This failure of documentation is important because several of the 
beneficiary's daily tasks, such as those cited above, do not fall directly under traditional managerial or 
executive duties as defined in the statute. For this reason, the AAO cannot determine whether the beneficiary 
is primarily performing the duties of a function manager. See IKEA US, Inc. v. US. Dept. of Justice, 48 F. 
Supp. 2d 22,24 (D.D.C. 1999). 
The petitioner attempts to classify non-qualifying duties under headings that fall under the regulatory 
definitions of managerial capacity. For example, counsel on appeal alleges that the beneficiary has the 
authority to hire and fire employees and alleges that to date he has hired all the service employees. While 
hiring and firing employees are recognized as managerial duties, the petitioner does not specifically state how 
much time, on a daily basis, the beneficiary spends devoted to this qualifying task. Based on the small 
number of employees and relatively low number of proposed positions, it seems logical to conclude that 
hiring and firing a staff of four sales representatives does not take up a majority of the beneficiary's time. 
In addition, counsel for the petitioner relies on the fact that the beneficiary supervises professional employees 
as a further basis for establishing his eligibility. Although the beneficiary is not required to supervise 
LIN 04 110 51958 
Page 8 
personnel, if it is claimed that his duties involve supervising employees, the petitioner must establish that the 
subordinate employees are supervisory, professional, or managerial. See 9 101(a)(44)(A)(ii) of the Act. 
The petitioner claims that the beneficiary is a manager by virtue of his supervision of four service 
representatives. With regard to the duties of these four employees, the petitioner simply stated that they are 
responsible for the installation, service and repair of company products. The petitioner did not provide the 
level of education required to perform the duties of its service representatives, and there is no evidence in the 
record to establish that the positions these persons fill require an advanced degree, such that they could be 
classified as professionals. Nor has the petitioner shown that any of these 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. Merely submitting an organizational chart with the beneficiary at the 
top and subsequently claiming the beneficiary is a manager by virtue of his position in the organizational 
hierarchy does not satisfy the petitioner's burden of proof. There is no evidence in the record establishing that 
the service representatives are professional, supervisory, or managerial employees. Going on record without 
supporting documentary evidence is not sufficient for purposes of meeting the burden of proof in these 
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)). Thus, the petitioner has not shown that the beneficiary's 
subordinate employees are supervisory, professional, or managerial, as required by section 101 (a)(44)(A)(ii) 
of the Act. 
Although counsel on appeal claims that the beneficiary will soon hire professional employees, such as 
engineers and electronics specialists, this assertion is not persuasive. 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). The fact that the beneficiary anticipates hiring subordinate professionals 
in the future does not establish eligibility under the managerial category. A managerial or executive 
employee must have authority over day-to-day operations beyond the level normally vested in a first-line 
supervisor, unless the supervised employees are professionals. See Matter of Church Scientology 
International, 19 I&N Dec. 593, 604 (Comm. 1988). This has not been established here. 
The record is not persuasive in demonstrating that the beneficiary has been or will be employed in a primarily 
managerial or executive capacity. The record indicates that the beneficiary will primarily engage in 
non-qualifying duties from which he is not relieved by subordinate professional employees. 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). 
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. 9 214.2(1)(3). For this reason, the petition may not be 
approved. 
Beyond the findings in the previous decision, the remaining issue in this proceeding is whether the petitioner 
has established that a qualifying relationship exists between the petitioning entity and a foreign entity 
LIN 04 110 51958 
Page 9 
pursuant to 8 C.F.R. 4 214.2(1)(l)(ii)(G). The petitioner has submitted a consolidated balance sheet for the 
alleged parent company of the petitioner and foreign entity. However, no additional documentation is 
included in the record in support of the claimed affiliation between these two entities. 
The regulation and case law confirm that ownership and control are the factors that must be examined in 
determining whether a qualifying relationship exists between United States and foreign entities for purposes 
of this visa classification. Matter of Church Scientology International, 19 I&N Dec. 593 (BIA 1988); see also 
Matter of Siemens Medical Systems, Inc., 19 I&N Dec. 362 (BIA 1986); Matter of Hughes, 18 I&N Dec. 289 
(Comm. 1982). In the context of this visa petition, ownership refers to the direct or indirect legal right of 
possession of the assets of an entity with full power and authority to control; control means the direct or 
indirect legal right and authority to direct the establishment, management, and operations of an entity. Matter 
of Church Scientology International, 19 I&N Dec. at 595. 
As general evidence of the petitioner's claimed qualifying relationship, a consolidated balance sheet alone is 
not sufficient evidence to determine whether Finmagneti S.P.A., the alleged common stockholder, maintains 
ownership and control of both the petitioner and the foreign entity. The corporate stock certificate ledgers, 
stock certificate registries, corporate bylaws, and the minutes of relevant annual shareholder meetings of both 
companies must also be examined to determine the total number of shares issued, the exact number issued to 
the shareholder, and the subsequent percentage ownership and its effect on corporate control. Additionally, a 
petitioning company must disclose all agreements relating to the voting of shares, the distribution of profit, 
the management and direction of the subsidiary, and any other factor affecting actual control of the entity. 
See Matter of Siemens Medical Systems, Inc., 19 I&N Dec. at 362. Without full disclosure of all relevant 
documents, CIS is unable to determine the elements of ownership and control. Therefore, the petitioner has 
not demonstrated that a qualifying relationship still exists with a foreign entity and has not persuasively 
demonstrated that the foreign entity will continue doing business during the alien's stay in the United States. 
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), afd. 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). 
When the AAO denies a petition on multiple alternative grounds, a plaintiff can succeed on a challenge only 
if she shows that the AAO abused it discretion with respect to all of the AAO's enumerated grounds. See 
Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d at 1043, afd. 345 F.3d 683. 
The petition will be denied for the above stated reasons, with each considered as an independent and 
alternative basis for denial. 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. 4 1361. Here, that burden has 
not been met. 
ORDER: The appeal is dismissed.