dismissed L-1A Case: Electronics

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U.S. Department of I-lomeland Security 
20 Mass Ave. N.W., Room 3000 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
File: WAC 03 264 5 1 182 Office: CALIFORNIA SERVICE CENTER Date: OCT 1 7 2008 
Petition: 
 Petition for a Nonimmigrant Worker Pursuant to Section 101 (a)(15)(L) of the Immigration 
and Nationality Act, 8 U.S.C. fj 1 10 l(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. 
WAC 03 264 51 182 
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 marketing 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 1101(a)(15)(L). The petitioner is a corporation organized in the State of 
California that is engaged in the import and sale of circuit boards. The petitioner claims that it is the affiliate 
of Shengyi Electronics Ltd., located in Guang Dong, 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 would 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 
is eligible for LlA classification. Specifically, counsel claims that the beneficiary actually supervises more 
employees, including managers, than previously described. Counsel also claims that to the extent the 
director's denial is premised upon the company's gross sales figure, the figure for the year 2003 is far larger 
than previously stated in the application. The petitioner submits a letter and additional evidence in support of 
counsel's claims. 
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. 5 214.2(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. 
WAC 03 264 51 182 
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 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. FJ 2 14.2(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 (I)(l)(ii)(G) of this section; 
(B) 
 Evidence that the United States entity has been doing business as defined in 
paragraph (I)(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. 
At 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; 
(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 
WAC 03 264 51 182 
Page 4 
(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 dated September 12,2003, accompanying the Form 1-129, Petition for a Nonimmigrant Worker, the 
petitioner described the beneficiary's job duties as follows: 
[The beneficiary] will continue to manage the marketing [dlepartment. His services are 
deemed essential as he provides a senior level of guidance and direction in regard to the 
successful implementation of [the U.S. companyl's North American development policies. 
He is responsible for formulating marketing strategy and sales plan based on company's 
policy. Conduct marketing survey, trend analysis, product promotion, advertisement and 
exhibition. Oversee the achievement or the monthly sales target. Review and analyze goals 
and sales, interact with deputy general manager, sales and technical supporters. Act as liaison 
between customers and the plants, to inform the company of the customer's feedback and 
oversee the after sales service. Accompany with the major customer's audit, follow up the 
audit report and feedback all the requirement from customer to the relative department. 
Decision-making regarding staffing, training, and career development of the marketing team; 
and evaluate performance of staffs and executives. 
In the same letter, the petitioner indicated that it has a total of nine employees in the U.S. office. The 
petitioner submitted an organizational chart dated September 5,2003 showing the beneficiary, with the title of 
marketing manager, along with two business development managers and an engineering supervisor under the 
supervision of the vice president of finance and administration. The chart indicates that the beneficiary 
directly supervises a "quotinglinside sales" employee and a "customer service" employee. The engineering 
supervisor directly supervises two technical services employees. The business development managers have 
no subordinate employees. 
WAC 03 264 51 182 
Page 5 
On November 6, 2003, the director issued a Notice of Intent to Deny (NOID) on the grounds that the 
beneficiary has not been and will not be employed in a primarily managerial capacity. The director found the 
record does not establish that the U.S. entity has the organizational complexity to support the beneficiary in a 
managerial position, that the beneficiary's duties are not primarily managerial in scope and nature, or that the 
beneficiary supervises a subordinate staff of professional, managerial, or supervisory personnel who will 
relieve him from performing non-qualifying duties. 
In a letter dated November 21, 2003 responding to the NOID, the petitioner asserted that in addition to 
managing two employees, the beneficiary also manages the essential function of marketing for the company. 
The petitioner elaborated on the beneficiary's responsibilities in marketing as follow: 
Although our office only [has] 9 employees, since many of our U.S. customers have offices 
globally, as a result our marketing efforts extend also to Europe and Asia. After he was 
transferred to the U.S., [the beneficiary] manages the essential function of marketing for our 
office. He also is the Global Manager for Unicircuits, GE Medical, and Teradyne - 
Managing all marketing efforts in US, Europe, Hong Kong. He conducts global market 
research - after completing research, he provides target accounts globally. [The beneficiary] 
also provides consolidated annual forecast for US market to Corporate Office in Hong Kong. 
Implements marketing systems in US consistent with those used at Corporate office in Hong 
Kong. Prepares marketing presentation for all marketing and sales staff to use to capture 
target accounts. Manages Customer service and Inside Sales. 
In the same letter, the petitioner provided the following description of the job qualifications and duties of the 
beneficiary's two subordinates: 
Customer Service - Employed by [the U.S. entity] for 1 % years. Previously worked 20 years 
at a domestic competitor. Is responsible for all order placement, tracking, systems entry and 
customer interaction. Provides weekly reports to [the beneficiary] for bookings and 
shipments. 
Inside Sales - Employed by [the U.S. entity] for 3 years. Previously worked for 22 years at 
various companies as inside sales/technical support. Handles all incoming quotes. Designed 
a quoting software that is used globally. 
On January 5, 2004, the director denied the petition. 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. Specifically, the director found the record does not establish that the U.S. entity has the 
organizational complexity to support the beneficiary in a managerial position. The director notes that the 
evidence does not establish that the beneficiary's daily activities or the specific scope and nature of his duties 
would be primarily managerial, nor does the evidence establish that the beneficiary supervises a subordinate 
staff of professional, managerial or supervisory personnel that would relieve him from performing non- 
qualifying duties. The director also rejects the petitioner's assertion that the beneficiary manages an essential 
WAC 03 264 51 182 
Page 6 
function within the company, finding that the evidence indicates that the beneficiary would be performing 
rather than managing the marketing function within the company. 
On appeal, counsel for the petitioner contends that the beneficiary is eligible for LIA classification. 
Specifically, counsel claims that the beneficiary actually supervises more employees, including managers, 
than previously described. The petitioner submits a revised organizational chart of the U.S. company which 
places the two business development managers, who were initially depicted as being at the same level of 
management as the beneficiary in the previous organizational chart, under the beneficiary's direct supervision. 
In a letter dated February 3, 2004 submitted on appeal, the petitioner claims that the revised organizational 
chart correctly represents the structure of the company as of September 2003 and that the previous 
organizational chart reflected a planned development of the company that actually never took place. The 
petitioner further claims that the two business development managers have always reported to the beneficiary. 
Accordingly, counsel claims, the beneficiary does supervise the work of other supervisory, professional, or 
managerial employees within the organization, and there are qualified employees to relieve the beneficiary 
from performing non-qualifying duties. Counsel and the petitioner also assert that the $800,000 figure stated 
in the initial supporting letter represents only the sales commission the U.S. company received from 
headquarters, and that the company's annual gross sales figure is actually greater than $9 million. Counsel 
contends that the greater volume in gross sales indicates that the U.S. company is an organization with such 
complexity that a manager is required to manage the essential function of marketing for the company. 
Upon review, the record is not persuasive in demonstrating that the beneficiary would be employed in a 
primarily 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. 
2142()(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. 
The AAO does not find persuasive petitioner's assertion on appeal that the beneficiary would be primarily 
employed in a managerial capacity because he actually supervises more staff, including managerial 
employees, than was described in the petition and supporting documentation. The organizational chart dated 
September 5, 2003 submitted with the initial petition clearly indicates that the beneficiary supervises two 
employees in "customer service" and "quoting/inside sales." In its December 3, 2003 response to the 
director's NOID, the petitioner confirmed that the beneficiary supervises only the two afore-mentioned non- 
managerial employees and listed the experience and responsibilities of only those two employees. Prior to the 
director's decision, no mention was made of the two business development managers being under the 
beneficiary's supervision, as the petitioner now claims on appeal. On appeal, a petitioner cannot offer a new 
position to the beneficiary, or materially change a position's title, its level of authority within the 
organizational hierarchy, or the associated job responsibilities. The petitioner must establish that the position 
offered to the beneficiary merits classification as a managerial or executive position at the time the petition 
was filed. Matter of Michelin Tire Corp., 17 I&N Dec. 248, 249 (Reg. Comm. 1978). A petitioner may not 
make material changes to a petition in an effort to make a deficient petition conform to Citizenship and 
Immigration Services (CIS) requirements. See Matter of lzummi, 22 I&N Dec. 169, 176 (Assoc. Comm. 
WAC 03 264 51 182 
' Page 7 
1998). Thus, in this instance, the beneficiary's eligibility for the benefit sought will be determined based upon 
his role within the company at the time the petition was filed, as described in the initial petition and the 
petitioner's response to the director's NOID. The petitioner's revised version of the beneficiary's role within 
the company offered on appeal will not be considered. 
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. Here, the record does not establish that the 
beneficiary's subordinate staff is composed of supervisory, professional, or managerial employees. 
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 1101(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. 81 7 (Comm. 1988); Matter of Ling, 13 I&N Dec. 35 (R.C. 1968); 
Matter of Shin, 11 I&N Dec. 686 (D.D. 1966). In the instant case, the petitioner has not provided any 
information that would establish that a baccalaureate degree is actually necessary to perform the work of 
either of the beneficiary's subordinate employees in "customer service" and "quoting/inside sales," such that 
they could be considered professional employees, nor has the petitioner shown that 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. Further, as noted earlier, the petitioner's revision on appeal of 
the role of the beneficiary to include supervision of the two business development managers shall not be taken 
into consideration. Even if that new version of the beneficiary's role is taken into account, the petitioner has 
provided no information whatsoever regarding the job responsibilities and qualification requirements of the 
business development managers, such that it could be determined whether these employees could be 
considered profession employees or managers other than in title only. In light of the foregoing, the AAO 
concludes that 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. 
The AAO also does not find persuasive the petitioner's claim that as the marketing manager, the beneficiary 
manages an "essential function" of the company. The term "function manager" applies generally when a 
beneficiary does not supervise or control the work of a subordinate staff but instead is primarily responsible 
for managing an "essential function" within the organization. See section lOl(a)(44)(A)(ii) of the Act, 8 
U.S.C. $ 1 lOl(a)(44)(A)(ii). If a petitioner claims that the beneficiary is managing an essential function, the 
petitioner must furnish a written job offer that clearly describes the duties to be performed in managing the 
essential function, i.e., identify the function with specificity, articulate the essential nature of the function, and 
establish the proportion of the beneficiary's daily duties attributed to managing the essential function. See 8 
C.F.R. 5 214.2(1)(3)(ii). In addition, the petitioner's description of the beneficiary's daily duties must 
demonstrate that the beneficiary manages the function rather than performs the duties related to the function. 
An employee who primarily performs the tasks necessary to produce a product or to provide services is not 
considered to be "primarily" employed in a managerial or executive capacity. Boyang, Ltd. v. I.N.S., 67 F.3d 
WAC 03 264 51 182 
' Page 8 
305 (Table), 1995 WL 576839 (9th Cir, 1995) (citing Matter of Church Scientology International, 19 I&N 
Dec. 593, 604 (Comm. 1988)). In this matter, the record does not support the conclusion that the beneficiary 
manages an essential function. 
In the initial petition, the petitioner describes the beneficiary as "manag[ing] the marketing department." 
However, according to the petitioner, the beneficiary's responsibilities include "formulating marketing 
strategy and sales plan based on company's policy," "conduct[ing] marketing survey, trend analysis, product 
promotion, advertisement and exhibition," "review[ing] and analyze goals and sales, interact with deputy 
general manager, sales and technical supporters," and "acting as a liaison between customers and the plants, to 
inform the company of the customer's feedback and oversee the after sales service." Even though the 
petitioner claims that the beneficiary manages the petitioner's marketing department, it does not appear that 
the beneficiary's subordinate employees actually perform the marketing functions described. Of the 
beneficiary's two subordinates, one is described as "responsible for all order placement, tracking, systems 
entry and customer interaction [and plrovides weekly reports to [the beneficiary] for bookings and 
shipments," while the other "handles all incoming quotes." Thus, it is reasonable to conclude that the 
beneficiary himself is performing the marketing activities described and does not actually manage the 
marketing function as claimed by the petitioner. Further, the petitioner has failed to establish the proportion 
of the beneficiary's daily duties attributable to performing the marketing tasks as opposed to managing the 
marketing function. As previously noted, 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. Id. 
Finally, the petitioner contends that the fact that the U.S. company has a gross sales figure of $9 million for 
the year 2003 indicates that the company is an organization of such complexity that a manager is required to 
manage the company's "essential function" of marketing. Given the insufficiency of evidence regarding the 
company's structure and the beneficiary's duties, as discussed above, the gross sales figure alone fails to 
demonstrate the complexity of the organization or a corresponding need for a function manager to manage the 
marketing function. 
In light of the foregoing, the AAO concurs with the director's conclusion that 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. 5 214.2(1)(3). Accordingly, the appeal will be dismissed. 
Beyond the director's decision, The AAO finds that the petitioner has not provided sufficient evidence to 
establish that a qualifying relationship continues to exist between the U.S. and foreign entities. In the initial 
petition, the petitioner indicated that the U.S. entity and the foreign entity are affiliates. The pertinent 
regulations at 8 C.F.R. 9 214.2(1)(l)(ii) define the term "qualifying organization" and related terms as 
follows: 
(G) Qualifying organization means a United States or foreign firm, corporation, or other legal 
entity which: 
WAC 03 264 51 182 
Page 9 
(1) 
 Meets exactly one of the qualifying relationships specified in the 
definitions of a parent, branch, affiliate or subsidiary specified in 
paragraph (I)(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. 
* * * 
(L) Affiliate means 
(1) 
 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. 
The regulations and case law confirm that ownership and control are the factors that must be examined in 
determining whether a qualifying relationship exists between the United States and foreign entities for 
purposes of this visa classification. Matter of Church Scientology International, 19 I&N Dec. at 597; 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. 
According to the petitioner, the U.S. company is 100% owned by Oriental Print Circuits Ltd. (OPCL); the 
foreign company is a joint venture in which Hong Kong MICA-AVA China Ltd. (MICA-AVA) has a 70% 
interest; and OPCL and MICA-AVA are both 99.99% owned by Meadville Limited (Meadville). The 
petitioner provided copies of the stock ledger and stock certificates number 1 and 2 of the U.S. company, 
showing that OPCL owns a total of 300,000 common shares, representing all of the issued and outstanding 
shares, of the U.S. company. The record also contains a copy of the December 1999 supplementary articles 
of the foreign company and a document entitled a Stock Equity Confirmation dated May 24, 2000 indicating 
that the foreign company is 70% held by MICA-AVA. With respect to OPLC, the record contains copies of 
the company's share certificates number 14, 17, 18 and 19, showing Meadville to be the registered holder of 
86,825, 385,000, 18,975 and 9,199 shares of OPLC, respectively. With respect to MICA-AVA, the record 
contains copies of the company's share certificates number 3 and 5 showing Meadville to be the registered 
'WAC 03 264 51182 
Page 10 
holder of 39,000 and 38,999 shares of MICA-AVA, respectively. 
 No other documentation has been 
submitted relating to the ownership interest of Meadville in OPLC or MICA-AVA. 
As general evidence of a petitioner's claimed qualifying relationship, stock certificates alone are not sufficient 
evidence to determine whether a stockholder maintains ownership and control of a corporate entity. The 
corporate stock certificate ledger, stock certificate registry, corporate bylaws, and the minutes of relevant 
annual shareholder meetings 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. 362. Without full disclosure 
of all relevant documents with respect to Meadville's ownership interest in OPCL and MICA-AVA, CIS is 
unable to confirm the chain of corporate ownership and control as described by the petitioner and therefore 
cannot conclude that a qualifying relationship between the U.S. and foreign entities continues to exist as 
claimed. For this additional reason, the petition will be denied. 
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), affd, 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). 
The petition will be denied for the above stated reasons, with each considered as an independent and 
alternative basis for denial. 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 its discretion with respect to all of the AAO's 
enumerated grounds. See Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d at 1043. 
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 
director's decision will be affirmed and the petition will be denied. 
ORDER: The appeal is dismissed.