dismissed L-1A Case: Electronics Manufacturing

identifyingdatadeletedto
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PUBLICCOpy
U.S. Department of Homeland Security
20 Mass Ave., N.W., Room 3000
Washington, DC 20529
u.s.Citizenship
and Immigration
Services
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JUL 1 8 2007
FILE: SRC 05 071 50314 Office: TEXAS SERVICE CENTER Date:
INRE: Petitioner:
Beneficiary:
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)
ON 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.
~ ~[Robert P. Wiemann, C ~
DAdministrative Appeals Office
www.uscis.gov
SRC 05 071 50314
Page 2
DISCUSSION: The Director, Texas Service Center, denied the petition for a nonimmigrant visa. The matter
is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be summarily dismissed.
The petitioner states that it is engaged in the manufacturing and sale of display monitors and deflection yokes
for TV and computer displays. It seeks to extend its authorization to employ the beneficiary temporarily in
the United States as its assistant manager/sales engineer, pursuant to section 101(a)(l5)(L) of the Immigration
and Nationality Act (the Act), 8 U.S.C. § 1101(a)(15)(L). The director denied the petition, concluding that
the petitioner has not demonstrated that the beneficiary has been employed abroad, or would be employed in
the United States, in a primarily managerial or executive capacity. The director noted that in the foreign
entity, the beneficiary appears to have been a first-line supervisor of four employees who are not
professionals and, as such, cannot be considered to be employed in a managerial or executive capacity as
required under 8 C.F.R. § 214.2(1). The director further noted that the record indicates that the beneficiary
would not have any employees reporting directly to him in the U.S. entity, and that he primarily performs the
tasks necessary to produce a product or to provide services.
Counsel submitted a brief and a letter from the petitioner along with the Form 1-290B, Notice of Appeal. In
the brief, counsel asserted that the director's "decision is erroneous as it disregarded that the [beneficiary's]
proposed services are in a capacity that involves specialized knowledge with respect to his employer under
Section 1101(a)(15)(L) of the Immigration and Nationality Act." Counsel's brief includes a section entitled
"managerial capacity," in which counsel merely restates verbatim the discussion of the beneficiary's position
and job duties from the petitioner's support letter that was submitted initially with the Form 1-129. Counsel
does not address any aspects of the director's decision regarding the beneficiary's managerial or executive
capacity.'
To establish eligibility under section 101(a)(l5)(L) of the Act, the petitioner must meet certain criteria.
Specifically, within three years preceding the beneficiary's application for admission into the United States, a
firm, corporation, or other legal entity, or an affiliate or subsidiary thereof, must have employed the
beneficiary for one continuous year. Furthermore, 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.
At the outset, the AAO notes that the regulations at 8 C.F.R. § 103.3(a)(1)(v) state, in pertinent part:
An officer to whom an appeal is taken shall summarily dismiss any appeal when the party
concerned fails to identify specifically any erroneous conclusion of law or statement of
fact for the appeal.
The AAO finds that on appeal, counsel in this matter has failed to identify specifically any erroneous
conclusion of law or statement of fact in the director's decision. First, counsel's assertion that the director
I Counsel also submits (1) a letter from the petitioner, which also repeats the same discussion of the
beneficiary's management capacity from the initial support letter; (2) a summary of the beneficiary's
employment history, and (3) copies of the organizational charts of the two entities, which were previously
submitted.
SRC 05 071 50314
Page 3
erred in disregarding the issue of whether the beneficiary would be employed in a specialized knowledge
capacity is irrelevant to this petition. The petitioner has explicitly indicated on the Form 1-129, Petition for a
Non-Immigrant Worker, that it was requesting L-1A classification for the beneficiary. All supporting
documentation in the record appears to support a request for L-1A classification, in connection with
employment of the beneficiary in the United States in a managerial or executive capacity. Nowhere in the
record is there any mention of a request for L-1B classification, in connection with employment in the United
States in a specialized knowledge capacity. Second, as noted earlier, the section in counsel's brief that
purports to address the beneficiary's managerial capacity is no more than a verbatim restatement of the
beneficiary's job description that was already in the record. Counsel fails to identify specifically any
erroneous conclusion of law or statement of fact in connection with the director's decision on that issue.
Inasmuch as counsel has failed to identify specifically an erroneous conclusion of law or a statement of fact in
this proceeding, the appeal must be summarily dismissed. C.F.R. § 103.3(a)(l)(v).
The AAO notes for the record that it concurs with the director's conclusion that the petitioner has failed to
demonstrate eligibility for the benefit sought. However, the AAO finds it would be appropriate to elaborate
upon the grounds for denying the petition, as follows.
The director found that the petitioner has failed to demonstrate that the beneficiary would be employed in the
United States in a primarily managerial or executive capacity, since the beneficiary would not have any
employees reporting directly to him in the U.S. entity. However, the AAO notes that the director has not
addressed in her decision the issue of whether the beneficiary qualifies as a "function manager," since that
appears to be the petitioner's claim with respect to the beneficiary's position with the U.S. entity.
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 101(a)(44)(A)(ii) of the Act, 8 U.S.C. § 1101(a)(44)(A)(ii). If a petitioner claims
that the beneficiary is managing an essential function, the petitioner must 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. In addition, the petitioner must provide a
comprehensive and detailed description of the beneficiary's daily duties demonstrating that the beneficiary
manages the function rather than performs the duties relating to the function. 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).
In an undated letter accompanying the initial petition, the petitioner stated that as the sales engineering
manager, the beneficiary would be responsible for sales engineering activities for the U.S. entity's multimedia
division. The petitioner claimed that sales engineering is an essential function of the company and defined
the function as follows:
Sales engineering is the function of developing new products and technologies for sale to
customers. In high-tech industries, there is a SYmbioticrelationship between manufacturers
of products and their component suppliers. New products are sometimes the fruit of the
technological innovation by suppliers of components and at other times are the ideas of the
SRC 05 071 50314
Page 4
manufacturers, which are made possible through working with suppliers to develop the
components which will enable [a] new idea to develop into a functioning product. Sales
engineering is the function through which the exchange of ideas and technological
innovations are utilized to create new products.
The petitioner claimed that sales engineering is an essential function because the company's market share will
decrease if it does not keep current with technology and market demands. The petitioner described the
beneficiary's day-to-day duties required for sales engineering as follows:
1. Collect and analyze technical information regarding the display monitor market and new
markets.
2. Collect and analyze technical information regarding the new technologies, components,
and raw materials currently available or in development with potential for display
monitor application.
3. Prepare reports and proposals for the Design & Development Department of the
Multimedia Division in Japan for use in the research and development of new products
and product applications.
4. Coordinate with current and potential customers regarding new products, new
technologies, and the potential for joint development of display monitor technologies and
products.
5. Provide technical assistance and guidance to sales engineers.
Based on the description provided by the petitioner, it would appear that the "sales engineering" function
largely involves sales and marketing research in connection with the company's products and services. While
it is reasonable to categorize this function as an "essential function" for the business, the description of the
beneficiary's day-to-day duties do not show that the beneficiary would manage the function, but rather, that he
would be performing the duties relating to the function, such as collecting and analyzing technical and market
information, preparing reports, and liaising with customers. Again, 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. at 604. As such, the record
does not establish that the beneficiary would be managing an essential function in the U.S. company. Since
he also would not be supervising the work of other employees, the record does not support the conclusion
that he would be employed in the U.S. entity in a primarily managerial capacity.
As the director concluded, the record also does not sufficiently demonstrate that the beneficiary was
employed abroad in a managerial or executive capacity.
In the letter accompanying the Form 1-129, the petitioner stated the beneficiary's title in the foreign entity is
"Supervisor of Sales Department of Intelligent Devices and Solutions Division" and indicated that he
performs essentially the same duties that he would perform in his proposed employment with the U.S. entity.
In a request for further evidence (RFE) issued on January 27, 2005, the director requested, among other
things, a definitive statement describing the foreign employment of the beneficiary, including position title,
duties, percentage of time spent on each duty, and number of subordinates reporting directly to the beneficiary
with a description of their titles, duties and educational background. In response to the RFE, the petitioner
submitted a document entitled "Job Description of the Beneficiary in Japan," stating:
SRC 05 071 50314
Page 5
[The beneficiary] entered [the foreign entity] in April 1997, and [was] assigned to sales
representative of OEM products which are industrial display monitors and display monitors
for office computers. Currently, [the beneficiary] is Supervisor of Sales Dept. of Intelligent
Devices and Solutions Div., and engaged in sales of LCD display monitors for medical use
(hereinafter "Medical Imaging Display") for customers of health care industries.
[The beneficiary] has been in charge of sales in a wide range of industries, which were PC
industry, consumer electronic industry, measuring instrument industry and so forth ....
In time of starting Medical Imaging Display business, [the beneficiary] showed his great
ability as sales representative ....
With respect to the percentage of time spent on each of the beneficiary's duties, the petitioner simply stated
that the beneficiary "spends 100% of his time managing the Sales Department that include[s] PC industry,
consumer electronics industry and measuring instrument industry." The petitioner submitted an
organizational chart showing the beneficiary as a supervisor of "4 persons" in the sales department. Above
the beneficiary is a manager, who in tum is under the supervision of the general manager of the sales
department. Although the petitioner claims that the beneficiary has "4 subordinate managers," the petitioner
states the title of three of these individuals as "Japan Domestic Sales" and one as "Sales Assistant." No job
description is provided for any of the beneficiary's subordinates.
The information set forth in the petitioner's initial support letter regarding the beneficiary's job in Japan and
the job description provided in response to the RFE do not appear to describe the same job. If, as the
petitioner initially stated, the beneficiary's duties in his job in Japan are "essentially the same" as those he
would perform in the United States, then he would be directly involved in market research and analysis.
However, in response to the RFE, the beneficiary is described variously as a "sales representative," "engaged
in sales" and "in charge of sales." It is incumbent upon the petitioner to resolve any inconsistencies in the
record by independent objective evidence. Any attempt to explain or reconcile such inconsistencies will not
suffice unless the petitioner submits competent objective evidence pointing to where the truth lies. Matter of
Ho, 19 I&N Dec. 582, 591-92 (BIA 1988).
Moreover, the director's request for a breakdown of the beneficiary's duties garners only a general response
that the beneficiary spends "1000/0 of his time managing the Sales Department that include [s] PC industry,
consumer electronics industry and measuring instrument industry." 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's brief responses 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. Sava , 724 F. Supp. 1103, 1108
(E.D.N.Y. 1989), aff'd, 905 F.2d 41 (2d. Cir. 1990). Moreover, failure to submit requested evidence that
precludes a material line of inquiry shall be grounds for denying the petition. 8 C.F.R. § 103.2(b )(14).
Furthermore, 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 AAO concurs with the director's
SRC 05071 50314
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assessment that based on the evidence, the beneficiary appears to be a first-line supervisor of four employees
in the foreign entity who are not professionals and, as such, cannot be considered to be employed in the
foreign entity in a managerial or executive capacity. Although the petitioner sought to characterize the
beneficiary's subordinates as "managers," the organizational chart of the foreign company does not show that
these persons supervise or manages any other employees, nor was there any job description provided to show
that their job duties could be considered managerial or supervisory in nature. Similarly, without any job
descriptions, it cannot be determined whether their positions require advanced degrees such that they could be
deemed professionals. A first-line supervisor will not be considered to be acting in a managerial capacity
merely by virtue of his or her supervisory duties unless the employees supervised are professional. Section
101(a)(44)(A)(iv) of the Act. Because the beneficiary was primarily supervising a staff of non-professional
employees in the foreign entity, the beneficiary cannot be deemed to have been primarily acting in a
managerial capacity.
Based on the foregoing, the AAO concurs with the director's conclusion that the petitioner has failed to
establish that the beneficiary was employed in the foreign entity, and would be employed in the U.S. entity, in
a primarily managerial or executive capacity. Regardless, inasmuch as counsel has failed to identify
specifically an erroneous conclusion of law or a statement of fact in this proceeding, the appeal must be
summarily dismissed pursuant to C.F.R. § 103.3(a)(I)(v).
In visa petition proceedings, the burden of proving eligibility for the benefit sought remains entirely with the
petitioner. Section 291 of the Act, 8 U.S.C. § 1361. The petitioner has not met this burden.
ORDER: The appeal is summarily dismissed.