dismissed L-1A Case: Electromachinery

-datadewto 
ent ckdy unwarranted 
k of pond privacy 
U.S. Department of Homeland Security 
20 Mass Ave. N.W., Rm. A3000, 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
Services 
File: WAC 04 057 52200 Office: CALIFORNIA SERVICE CENTER Date: 
 JUL 1 7 2006 
Petition: 
 Petition for a Nonimmigrant Worker Pursuant to Section 101 (a)(l5)(L) of the Immigration 
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 been returned to 
the office that originally decided your case. Any further inquiry must be made to that office. 
Administrative Appeals Office 
WAC 04 057 52200 
Page 2 
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 presidendgeneral 
managerlfinancial officer as an L-1A nonimrnigrant intracompany transferee pursuant to section 
101(a)(15)(L) of the Immigration and Nationality Act (the Act), 8 U.S.C. $ 1 101(a)(15)(~).' The petitioner 
indicated that it is a corporation organized in the State of California that is engaged in the "import and 
distribution of electromachinery 
claims that it is the subsidiary o 
located in~he b 
in the United States and the petitioner now seeks to extend the beneficiary's stay. 
The director denied the petition concluding that (1) the petitioner did not establish that the beneficiary will be 
employed in the United States in a primarily managerial or executive capacity, and (2) the petitioner has not 
shown that there exists a qualifying relationship between the U.S. and foreign entities. The director noted in 
particular evidence showing that the initial investment in the U.S. entity was provided by third parties rather 
than by the foreign entity as the petitioner claimed. 
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, the petitioner asserts that the foreign entity is in fact 
the owner of the U.S. entity, and that the fund transfers through third party individuals were only for the 
purpose of expediting the transactions and were not in violation of Chinese law. Regarding the beneficiary's 
managerial role in the U.S. entity, the petitioner appears to assert that because of SARS, the beneficiary 
returned to the United States later than intended and the development of the business was delayed 
accordingly. The petitioner submits additional evidence in support of its assertions on appeal. 
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. $ 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. 
1 
 The AAO notes that although the petitioner stated the requested nonimmigrant classification as "H-1B" on 
the Form 1-129, Petition for a Nonimmigrant Worker, all other documents and correspondence on record 
indicate that the petitioner actually is seeking an extension of the beneficiary's L-1A status. 
WAC 04 057 52200 
Page 3 
(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 himher 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 regulation at 8 C.F.R. 3 214.2(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 managerial or executive 
capacity; and 
(E) 
 Evidence of the financial status of the United States operation. 
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. 3 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; 
WAC 04 057 52200 
Page 4 
(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 executites, the board 
of directors, or stockholders of the organization. 
In a letter dated November 5, 2003 accompanying the Form 1-129, the beneficiary, writing on behalf of the 
petitioner, described his job duties as follows: 
plan and develop organization policies and goals, and implement goals through 
subordinate administrative personnel; 
add or delete departments as needed; 
chair regular meetings to implement operational guidelines, review operation, and 
sales activities; 
sign all documents requiring officer's signature; 
hire and dismiss employees at the managerial/supervisory level; 
hear and read reports from managerial staff for company's progress review; 
review financial statements and analytical reports to develop and finalize budget 
balancing plans; 
authorize hnd disbursement; 
review financial reports to determine appropriateness of fund usage and reason for 
further investment from the parent company; 
discuss with board of directors abroad on sales, products, quality and strategies; 
see to the overall planning and management of the company's finance and 
administration. 
WAC 04 057 52200 
Page 5 
The petitioner also submitted an organizational chart for the U.S. entity showing that in addition to the 
beneficiary, the anticipated staff would include an impodexport manager, a business development manager, a 
import product marketing & sales supervisor, an export product supe~isor, an in-house sales department and 
sales agentslnetwork, an impodexport document coordinator, a quality controller, a purchaser, and possibly 
professional analysts or joint venture managers. However, the chart also shows that in addition to the 
beneficiary's position, only the position of import product marketing & sales supervisor was filled; all other 
positions on the chart remained to be filled. 
On the basis of the evidence submitted with the initial petition, the director denied the petition. The director 
determined the petitioner did not establish that the beneficiary will be employed in the United States in a 
primarily managerial or executive capacity. Specifically, the director found that the beneficiary's job 
description is not sufficiently detailed and fails to demonstrate that the beneficiary would be managing the 
organization or a department, subdivision, function or component of the U.S. entity. The director further 
observed that it appears that the petitioner only has one other part-time employee in addition to the 
beneficiary. Thus, the evidence does not establish that the beneficiary will be managing a subordinate staff of 
professional, managerial or supervisory personnel who would relieve him from performing non-qualifying 
duties, and the beneficiary likely would have to perform practically all of the day-to-day operations of the 
business. 
On appeal, with respect to the issue of the beneficiary's managerial capacity, the petitioner appears to assert 
that because of SARS, the beneficiary returned to the United States later than intended and the development 
of the business was delayed accordingly. The petitioner indicates that once the business actually begins 
exportation, more employees will be hired. 
On reviewing the petition and the evidence, the petitioner has not established that the beneficiary has been 
employed in a managerial or executive capacity. When examining the executive or managerial capacity of 
the beneficiary, the AAO will look first to the petitioner's description of the job duties. See 8 C.F.R. 
214.2(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. The petitioner must specifically state whether the beneficiary is primarily employed in a 
managerial or executive capacity. 
In this matter, the petitioner has provided a vague and nonspecific description of the beneficiary's duties that 
fails to demonstrate what the beneficiary does on a day-to-day basis. For example, the petitioner states that 
the beneficiary's duties include "plan[ning] and develop[ing] organization policies and goals, and implement 
goals through subordinate administrative personnel," " chair[ing] regular meetings to implement operational 
guidelines, review operation, and sales activities," and " see[ing] to the overall planning and management of 
the company's finance and administration." The petitioner did not, however, provide details of the company's 
goals, policies, operational guidelines or financial and administrative planning and management, nor did the 
petitioner describe the beneficiary's subordinate personnel through whom the beneficiary would accomplish 
these tasks. Reciting the beneficiary's vague job responsibilities or broadly-cast business objectives is not 
sufficient; the regulations require a detailed description of the beneficiary's daily job duties. The petitioner 
has failed to answer a critical question in this case: What does the beneficiary primarily do on a daily basis? 
The actual duties themselves will reveal the true nature of the employment. Fedin Bros. Co., Ltd. v. Suva, 724 
F. Supp. 1103, 1108 (E.D.N.Y. 1989), ard, 905 F.2d 41 (2d. Cir. 1990). 
WAC 04 057 52200 
Page 6 
Moreover, 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, the petitioner fails to document what proportion of the beneficiary's 
duties would be managerial functions and what proportion would be non-managerial. The petitioner lists the 
beneficiary's duties as including both managerial and administrative or operational tasks, but fails to quantify 
the time the beneficiary spends on them. Absent such further details, the AAO cannot determine whether the 
beneficiary is primarily performing the duties of a manager. See IKEA US, Inc. v. US. Dept. of Justice, 48 
F. Supp. 2d 22,24 (D.D.C. 1999). 
In addition, as the director noted, the record indicates that despite the multilayered organizational chart it 
submitted, the petitioner actually has only one other part-time employee in addition to the beneficiary. Thus, 
even though the petitioner claims that the beneficiary engages in such tasks as overseeing the implementation 
of organizational policies and goals and operational guidelines through subordinate administrative personnel, 
reviewing operation and sales activities, reviewing reports from managerial staff, financial statements and 
analytical reports to develop and finalize budget balancing plans, the petitioner does not appear to have 
anyone on its staff to actually perform the tasks that the beneficiary purportedly oversees and reviews. Thus, 
it is reasonable to conclude that the beneficiary himself is performing much of the operational tasks of the 
company rather than managing the performance of such tasks as claimed by the petitioner. 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 of Scientology International, 19 I&N Dec. 
593,604 (Comm. 1988). 
Further, although the beneficiary is not required to supervise 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 § 101(a)(44)(A)(ii) of the Act. As previously noted, the record indicates that 
the beneficiary has a subordinate staff consisting of one apparently part-time employee. Although this 
employee bears the title of import product marketing and sales supervisor, there is no other information on the 
record regarding this employee. Thus, the record is insufficient to show that the beneficiary supervises 
subordinate employees who are supervisory, professional, or managerial, as required by section 
101(a)(44)(A)(ii) of the Act. 
In view of the foregoing, the AAO finds that the record is not persuasive in demonstrating that the beneficiary 
would be employed in a primarily managerial or executive capacity in the U.S. entity. The petitioner's 
assertions on appeal are also not persuasive on this issue. The petitioner indicates that the development of the 
U.S. entity was unintentionally delayed, and that it plans to hire additional employees in the future. However, 
the petitioner must establish eligibility at the time of filing the nonirnrnigrant 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). Furthermore, 8 C.F.R. fj 
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 the Citizenship and 
Immigration Service (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 ineligible by regulation for an extension. In the 
WAC 04 057 52200 
Page 7 
instant matter, the petitioner has not 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 would be employed in a primarily 
managerial or executive capacity in the United States, as required by 8 C.F.R. 9 214.2(1)(3). 
The second issue in this proceeding is whether a qualifying relationship exists between the U.S. and foreign 
entities. 
The regulations at 8 C.F.R. $ 214.2(l)(l)(ii)(G) state: 
QuallJjting organization means a United States or foreign firm, corporation, or other legal 
entity which: 
(1) 
 Meets exactly one of the qualifying relationships specified in the definitions 
of a parent, branch, affiliate or subsidiary specified in paragraph (l)(l)(ii) of 
this section; 
(2) 
 Is or will be doing business (engaging in international trade is not required) 
as an employer in the United States and in 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; and 
(3) 
 Otherwise meets the requirements of section 101(a)(15)(L) of the Act. 
The regulations at 8 C.F.R. 5 214.2(1)(l)(ii) state, in pertinent part: 
Parent means a firm, corporation, or other legal entity which has subsidiaries. 
Subsidiary means a firm, corporation, or other legal entity of which a parent owns, directly or 
indirectly, more than half of the entity and controls the entity; or owns, directly or indirectly, 
half of the entity and controls the entity; or owns, directly or indirectly, 50 percent of a 50-50 
joint venture and has equal control and veto power over the entity; or owns, directly or 
indirectly, less than half of the entity, but in fact controls the entity. 
* * * 
Affiliate means: 
(I) One of two subsidiaries both of which are owned and controlled by the same parent or 
individual, or 
(2) One of two legal entities owned and controlled by the same group of individuals, each 
individual owning and controlling approximately the same share or proportion of each 
entity. 
WAC 04 057 52200 
Page 8 
It should be noted that, according to California State corporate records, the petitioner's corporate status in 
California has been "dissolved." Therefore, as the petitioner has voluntarily elected to wind-up its operations 
and has completely dissolved its business as a corporation, the company no longer exists and can no longer be 
considered a legal entity in the United States. Therefore, as this clearly and unequivocally renders the 
petitioner ineligible for the classification sought, the issue of whether a qualifying relationship ever existed 
between the petitioner and the foreign entity is moot. See 8 C.F.R. § 214.2(1)(l)(ii)(G). 
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. 9 1361. Here, that burden has not been met. Accordingly, the 
petition will be denied. 
ORDER: The appeal is dismissed.