dismissed L-1A Case: Electronics Sales And Distribution

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PU"OL.iC COPY 
U.S. Department of Homeland Security 
20 Massachusetts Ave., N.W., Rm. 3000 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
File: EAC 08 061 52154 Office: VERMONT SERVICE CENTER Date: OCT 2 3 2008 
Petition: 
 Petition for a Nonimmigrant Worker Pursuant to Section 10 1 (a)(15)(L) of the Immigration 
and Nationality Act, 8 U.S.C. tj 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. 
Administrative Appeals Office 
EAC 08 061 52154 
Page 2 
DISCUSSION: The Director, Vermont 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 visa petition seeking to extend the employment of the beneficiary as an 
L- 1 A nonirnrnigrant intracompany transferee pursuant to section 1 0 1 (a)(l 5)(L) of the Immigration and 
Nationality Act (the Act), 8 U.S.C. 9 1101(a)(15)(L). The petitioner is a corporation organized under the laws 
of the Commonwealth of Pennsylvania and is allegedly in the "electronics sales and distribution" business. 
The beneficiary was granted a one-year period of stay to open a new office in the United States, and the 
petitioner now seeks to extend the beneficiary's stay. 
The director denied the petition concluding that the petitioner did not establish that the beneficiary will be 
employed in the United States in a primarily managerial or executive capacity. 
The petitioner subsequently filed an appeal. The director declined to treat the appeal as a motion and 
forwarded the appeal to the AAO for review. On appeal, counsel to the petitioner asserts that the director 
erred and that the beneficiary will perform primarily qualifying duties in the United States. In support, 
counsel 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. 9 214.2(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 111-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 hidher 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. 
EAC 08 061 52154 
Page 3 
The regulation at 8 C.F.R. 
 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 primary 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 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. 5 1101(a)(44)(B), defines the term "executive capacity" as an 
EAC 08 061 52154 
Page 4 
assignment within an organization in which the employee primarily: 
(i) 
 directs the management of the organization or a major component or fbnction of the 
organization; 
(ii) 
 establishes the goals and policies of the organization, component, or finction; 
(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. 
The petitioner claims in the initial petition that the beneficiary's position as "general manager" involves 
"executive functions." Accordingly, it is not clear whether the petitioner is claiming that the beneficiary will 
primarily perform managerial duties under section 101(a)(44)(A) of the Act, or primarily executive duties 
under section 101(a)(44)(B) of the Act. Given the lack of clarity, the AAO will assume that the petitioner is 
asserting that the beneficiary will be employed in either a managerial or an executive capacity and will 
consider both classifications. 
The petitioner describes the beneficiary's proposed job duties in the United States in an undated letter as 
follows: 
Since [the beneficiary's] arrival [she] has been directing the business on the east coast of [the] 
United States in dealing with our customer's needs. She has hired additional person[s] and 
continues the process to fully develop [the] subsidiary so that it may meet all the needs of 
[the] customers in the United States. In her capacity as the General Manager[, the 
beneficiary] has also been meeting with customer company representatives to better 
understand their needs and what [the] company can add to our subsidiary services. 
The petitioner claims in the Form 1-129 to employ two workers. 
On February 12, 2008, the director requested additional evidence. The director requested, inter alia, a 
description of the beneficiary's proposed duties in the United States, including a breakdown of the number of 
hours to be devoted to each duty on a weekly basis; a list of all subordinate employees, including a complete 
position description for each worker; and copies of all Forms W-2. 
In response, the foreign employer further described the proposed duties of the beneficiary in a letter dated 
March 3, 2008 as follows: 
1. 
 Direct decision making in hiring, firing, salary compensation determination of 
employees at [the petitioner]; 
2. 
 Decision making in financial decisions of [the petitioner] including approving the 
budget and expenses of the company; 
3. 
 Oversee the selection and assign person to attend trade shows and exhibitions on 
EAC 08 061 52154 
Page 5 
behalf of the company; 
4. 
 Direct and coordinate activities of sales department, approve pricing and coordinate 
communications with parent company; 
5. 
 Review financial statements, sales and activity reports to make decisions on changes 
for the corporation to meet financial goals; 
6. 
 Establish and implement policies, goals, and procedures, conferring with parent 
company board members as necessary; 
7. 
 Oversee activities of personnel providing services; 
8. 
 Direct and coordinate company's financial and budget activities to fund operations, 
maximize investments, and increase efficiency; 
9. 
 Determine goods and services to be sold, and set prices and credit terms, based on 
forecasts of customer demand. 
On a weekly basis [the beneficiary] spends about 50% of her time or approximately 20 hours 
directing the sales personnel and make decision on pricing of and marketing events such as 
exhibitions. Exhibition arrangements including travel would take up a large percentage of 
her time during specific weeks. [The beneficiary] currently spends a small portion of her 
weekly work time reviewing resumes from applicants for employment taking up about 1 to 2 
hours. She also reviews the revenue income and sets budge[t]s accordingly. She is 
responsible for communicating with the parent company to report on financial and growth 
status of the company that takes up remainder of her time between phone calls and report 
preparation times and performing other duties as mentioned above. 
Although the petitioner submitted its 2007 Forms W-2, the petitioner did not submit its quarterly tax return 
for the quarter in which the instant petition was filed, i.e., the fourth quarter of 2007, corroborating its claim 
in the Form 1-129 to employ two workers. The petitioner also did not specifically describe the job title or 
duties of its other claimed worker. 
On May 7, 2008, the director denied the petition. The director concluded that the petitioner failed to establish 
that the beneficiary will be employed primarily in a managerial or executive capacity. 
On appeal, counsel asserts that the beneficiary will primarily perform qualifying duties in the United States. 
In support, counsel submits a brief and additional evidence, including evidence that the petitioner began 
employing additional workers after the filing of the instant petition. 
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. 9 214.2(1)(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. A petitioner cannot claim that some of the duties of the 
position entail executive responsibilities, while other duties are managerial. A petitioner may not claim that a 
beneficiary will be employed as a hybrid "executive/manager7' and rely on partial sections of the two statutory 
definitions. 
EAC 08 061 52154 
Page 6 
Title 8 C.F.R. 5 214.2(1)(3)(v)(C) allows the "new office" operation one year within the date of approval of 
the petition to support an executive or managerial position. There is no provision in Citizenship and 
Immigration Services (CIS) regulations that allows for an extension of this one-year period. If the beneficiary 
is not performing qualifying duties within one year of petition approval, the petitioner is ineligible by 
regulation for an extension. In the instant matter, the petitioner has not established that the United States 
operation has reached the point that it can employ the beneficiary in a predominantly managerial or executive 
position. 
As a threshold issue, it is noted that employees hired after the filing of the initial petition, as well as new 
duties ascribed to the beneficiary as a result of a staff expansion, may not be considered in determining 
whether the petitioner has established that the beneficiary will be employed in a primarily managerial or 
executive capacity in the United States. 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). Furthermore, 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 when the petition 
was filed merits classification as a managerial or executive position. Id. at 249. A petitioner may not make 
material changes to a petition in an effort to make a deficient petition conform to CIS requirements. See 
Matter of Izummi, 22 I&N Dec. 169, 176 (Assoc. Comrn. 1998). Accordingly, the petitioner's claim on appeal 
that it has employed additional workers, and that the beneficiary will as a result perform primarily qualifying 
duties, is not relevant and will not be considered. The appeal will be adjudicated based on the record before 
the director. 
In this matter, the petitioner's description of the beneficiary's job duties fails to establish that the beneficiary 
will act in a "managerial" or "executive" capacity. In support of the petition, the petitioner has submitted a 
vague and non-specific job description which fails to sufficiently describe what the beneficiary will do on a 
day-to-day basis. For example, the petitioner states that the beneficiary will "direct" sales personnel, make 
financial and pricing decisions, assign persons to attend trade shows, and establish policies, goals, and 
procedures. However, the petitioner does not specifically describe these financial decisions, policies, goals, 
and procedures, or explain what, exactly, the beneficiary will do to "direct" the single sales worker. 
Importantly, the petitioner has not established that any of the beneficiary's duties pertaining to the first-line 
supervision of a single sales worker, or any of the ascribed pricing, marketing, and budgeting tasks, are 
qualifying duties. The fact that a petitioner has given a beneficiary a managerial or executive title and has 
prepared a vague job description which includes inflated job duties does not establish that a beneficiary will 
actually perform managerial or executive duties. Specifics are clearly an important indication of whether a 
beneficiary's duties are primarily executive or managerial in nature; otherwise meeting the definitions would 
simply be a matter of reiterating the regulations. Fedin Bros. Co., Ltd. v. Suva, 724 F. Supp. 1103 (E.D.N.Y. 
1989), ard, 905 F.2d 41 (2d. Cir. 1990). Going on record without supporting documentary evidence is not 
sufficient for purposes of meeting the burden of proof in these proceedings. Matter of Treasure Craft of 
California, 14 I&N Dec. 190 (Reg. Comrn. 1972). 
Consequently, the record is not persuasive in establishing that the beneficiary will primarily perform 
qualifying duties in her operation of the business. As noted above, the petitioner claims that the beneficiary 
EAC 08 061 52154 
Page 7 
will "direct" the petitioner's business operations through one subordinate worker. However, the record does 
not establish that the beneficiary will be relieved of the need to perform many of the non-qualifying tasks 
inherent to her ascribed duties by this worker. For example, the petitioner claims that the beneficiary will 
"oversee the selection" of exhibitions to attend and will then "assign" workers to attend these exhibitions. 
However, as the petitioner failed to describe the duties of the beneficiary's single subordinate worker, even 
though this evidence was requested by the director, it cannot be concluded that the beneficiary will be 
relieved from the need to perform the non-qualifying tasks inherent to these duties, e.g., making the 
arrangements to attend the trade shows, performing the necessary research and preparation, and actually 
attending the shows. 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). Accordingly, it appears more likely than not that 
the beneficiary will primarily perform non-qualifying first-line supervisory, administrative, and operational 
tasks in her administration of the business. 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. See sections 101(a)(44)(A) and (B) of the Act (requiring that one "primarily" perform the 
enumerated managerial or executive duties); see also Matter of Church Scientology International, 19 I&N 
Dec. 593, 604 (Comm. 1988). A managerial 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. 
5 lOl(a)(44)(A)(iv) of the Act; see also Matter of Church Scientology International, 19 I&N Dec. at 604. 
The petitioner has also failed to establish that the beneficiary will supervise and control the work of other 
supervisory, managerial, or professional employees, or will manage an essential function of the organization. 
As asserted in the record, the beneficiary will directly supervise one subordinate worker. However, it has not 
been established that this worker is a supervisory, managerial, or professional worker. As noted above, the 
petitioner failed to specifically describe the duties of this subordinate worker, even though this evidence was 
requested by the director. Once again, failure to submit requested evidence that precludes a material line of 
inquiry shall be grounds for denying the petition. 8 C.F.R. 8 103.2(b)(14). Accordingly, as it appears that the 
beneficiary will be, at most, a first-line supervisor of a non-professional worker, the petitioner has not 
established that the beneficiary will be employed primarily in a managerial capacity.' 
1 
While the petitioner has not argued that the beneficiary will manage an essential function of the organization, 
the record nevertheless would not support this position even if taken. 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. The term "essential function" is not defined by statute or regulation. If a 
petitioner claims that the beneficiary will manage 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 
hnction 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 
will manage the function rather than perform the tasks related to the function. In this matter, the petitioner 
has not provided evidence that the beneficiary will manage an essential function. The petitioner's vague job 
description fails to document that the beneficiary's duties will be primarily managerial. Also, as explained 
above, it appears more likely than not that the beneficiary will primarily be a first-line supervisor of a non- 
professional employee and will perform non-qualifying administrative or operational tasks, such as attend 
EAC 08 061 52154 
Page 8 
Similarly, the petitioner has failed to establish that the beneficiary will act in an "executive" capacity. The 
statutory definition of the term "executive capacity" focuses on a person's elevated position within a complex 
organizational hierarchy, including major components or functions of the organization, and that person's 
authority to direct the organization. Section IOl(a)(44)(B) of the Act. Under the statute, a beneficiary must 
have the ability to "direct the management" and "establish the goals and policies" of that organization. 
Inherent to the definition, the organization must have a subordinate level of employees for the beneficiary to 
direct, and the beneficiary must primarily focus on the broad goals and policies of the organization rather than 
the day-to-day operations of the enterprise. An individual will not be deemed an executive under the statute 
simply because they have an executive title or because they "direct" the enterprise as the owner or sole 
managerial employee. The beneficiary must also exercise "wide latitude in discretionary decision making" 
and receive only "general supervision or direction fi-om higher level executives, the board of directors, or 
stockholders of the organization." Id. For the same reasons indicated above, the petitioner has failed to 
establish that the beneficiary will act primarily in an executive capacity. As explained above, it appears 
instead that the beneficiary will be primarily employed as a first-line supervisor of a single sales employee 
and will perform the tasks necessary to produce a product or to provide a service. Therefore, the petitioner 
has not established that the beneficiary will be employed primarily in an executive capacity. 
In reviewing the relevance of the number of employees a petitioner has, federal courts have generally agreed 
that CIS "may properly consider an organization's small size as one factor in assessing whether its operations 
are substantial enough to support a manager." Family, Inc. v. US. Citizenship and Immigration Services, 469 
F.3d 1313, 1316 (9th Cir. 2006) (citing with approval Republic of Transkei v. INS, 923 F.2d 175, 178 (D.C. 
Cir. 1991); Fedin Bros. Co. v. Suva, 905 F.2d 41, 42 (2d Cir. 1990) (per curiam); Q Data Consulting, Inc. v. 
INS, 293 F. Supp. 2d 25,29 (D.D.C. 2003)). Furthermore, it is appropriate for CIS to consider the size of the 
petitioning company in conjunction with other relevant factors, such as a company's small personnel size, the 
absence of employees who would perform the non-managerial or non-executive operations of the company, 
or a "shell company" that does not conduct business in a regular and continuous manner. See, e.g. Systronics 
Corp. v. INS, 153 F. Supp. 2d 7, 15 (D.D.C. 200 1). 
Accordingly, the petitioner has failed to establish that the beneficiary will primarily perform managerial or 
executive duties, and the petition may not be approved for that reason. 
Beyond the decision of the director, the petitioner has failed to establish that the, beneficiary was employed 
abroad in a position that was primarily managerial or executive in nature. 8 C.F.R. $5 214.2(1)(3)(iv). 
The petitioner described the beneficiary's job duties abroad in the Form 1-129 as follows: 
International Sales department manager. Managed the daily activities of the international 
sales department. Managed the employees of the department, setting up schedules and 
handled international transactions issues arising from orders. 
trade shows. Absent a clear and credible breakdown of the time spent by the beneficiary performing her 
duties, the AAO cannot determine what proportion of her duties will be managerial, nor can it deduce whether 
the beneficiary will primarily perform the duties of a bction manager. See IKEA US, Inc. v. US. Dept. of 
Justice, 48 F. Supp. 2d 22,24 (D.D.C. 1999). 
EAC 08 061 52154 
Page 9 
Upon review, the record is not persuasive in establishing that the beneficiary was employed abroad in a 
primarily managerial or executive capacity. The beneficiary's vague job description fails to describe the 
beneficiary as primarily performing managerial or executive duties abroad. Similar to the United States 
position, it appears that the beneficiary primarily performed non-qualifying tasks in her "management" of the 
international sales department. First-line supervisory tasks, such as "setting up schedules," and "handling" 
issues which arise from customer orders have not been proven to be qualifying managerial or executive 
duties. Once again, going on record without supporting documentary evidence is not sufficient for purposes 
of meeting the burden of proof in these proceedings. Matter of Treasure Craft of California, 14 I&N Dec. 
190. 
Accordingly, the petitioner has not established that the beneficiary was employed abroad in a primarily 
managerial or executive capacity, and the petition may not be approved for this additional reason. 
The previous approval of an L-1A petition does not preclude CIS from denying an extension based on a 
reassessment of the petitioner's qualifications. Texas AM Univ. v. Upchurch, 99 Fed. Appx. 556,2004 WL 
1240482 (5th Cir. 2004). Despite any number of previously approved petitions, CIS does not have any 
authority to confer an immigration benefit when the petitioner fails to meet its burden of proof in a subsequent 
petition. See section 29 1 of the Act, 8 U.S.C. 8 136 1. 
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). 
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 it is shown that the AAO abused its discretion with respect to all of the AAO's 
enumerated grounds. See Spencer Entelprises, Inc., 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. Here, that burden has not been met. Accordingly, the appeal will be 
dismissed. 
ORDER: The appeal is dismissed.