dismissed L-1A Case: Engineering

U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rrn. 3000 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
File: EAC 08 068 5 1762 Office: VERMONT SERVICE CENTER Date: 
Petition: 
 Petition for a Nonirnrnigrant Worker Pursuant to Section 101 (a)(15)(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. 
-* Ad 
Robert P. Wiemann, Chief 
Administrative Appeals Office 
EAC 08 068 5 1762 
Page 2 
DISCUSSION: The Director, Vermont Service Center, denied the petition for a nonirnmigrant visa. The 
matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. 
The petitioner filed this nonirnmigrant petition seeking to extend its employment of the beneficiary as its 
general manager as an L- 1 A nonimmigrant intracompany transferee pursuant to section 1 0 1 (a)(15)(L) of the 
Immigration and Nationality Act (the Act), 8 U.S.C. 3 1101(a)(15)(L). The petitioner is a limited partnership 
that was organized in the State of Florida. The petitioner states that it is engaged in importing, exporting, and 
selling safety modules for diesel engines. 
The director denied the petition after concluding that the petitioner failed to establish that it would employ the 
beneficiary in a managerial or executive capacity in his proposed position with the U.S. entity. 
On appeal, counsel disputes the director's findings and provides a brief that explains the petitioner's basis for 
the current appeal. 
To establish eligibility for the L-1 nonimmigrant visa classification, the petitioner must meet the criteria 
outlined in section 10 1 (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. 3 214.2(1)(3) states that an individual petition filed on Form 1-129 shall be 
accompanied by: 
(i) 
 Evidence that the petitioner and the organization which employed or will employ the 
alien are qualifying organizations as defined in paragraph (l)(l)(ii)(G) of this section. 
(ii) 
 Evidence that the alien will be employed in an executive, managerial, or specialized 
knowledge capacity, including a detailed description of the services to be performed. 
(iii) 
 Evidence that the alien has at least one continuous year of full-time employment 
abroad with a qualifying organization within the three years preceding the filing of 
the petition. 
(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. 
Section 101 (a)(44)(A) of the Act, 8 U.S.C. 3 1 101(a)(44)(A), defines the term "managerial capacity" as an 
EAC 08 068 51762 
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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 
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. 
The primary issue in this proceeding is whether the beneficiary would be employed by the United States 
entity in a primarily managerial or executive capacity. 
In support of the Form 1-129, the petitioner provided an organizational chart, which depicted the beneficiary 
as the middle tier of a three-tiered organization, where the beneficiary oversees an operations secretary, a 
sales engineer, and a logistics engineer and is subordinate to the company's vice president. The organizational 
chart was accompanied by the following description of the beneficiary's proposed position: 
EAC 08 068 5 1762 
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[The beneficiary's] main duties [are] to first set up a unique communications and network 
system between the principal in Germany and the new base in the United States. The 
manager has further responsibilities in order to expedite the workings of the expanding 
operation in Florida. Through the transfer of this most valuable staff member, the company is 
able to deal with technical start-up problems and the constant changing need for overseas 
software development. All of these activities involve the importlexport, sales and service of 
newly developed safety system applications on board ships and power generation stations. 
The director reviewed the documents submitted and determined that additional evidence and information was 
required. Accordingly, the director issued a request for additional evidence (RFE) in a notice dated February 
27, 2008. The RFE focused in large part on the beneficiary's proposed employment with the U.S. entity as 
well as the duties of other employees. More specifically, the petitioner was instructed to provide a 
comprehensive description of the beneficiary's job duties, explaining how the proposed duties fit the 
definitions of managerial or executive capacity. In an effort to determine who relieves the beneficiary from 
having to primarily perform the company's non-qualifying tasks, the petitioner was asked to provide job 
descriptions and educational credentials for the beneficiary's support staff, 
In response, the petitioner provided another organizational chart illustrating a similar hierarchy as was shown 
in the previously submitted chart. Key distinctions include the company president, whose position was 
omitted from the prior organizational chart, and the changed position titles of the beneficiary's subordinates. 
Specifically, while the prior chart listed the beneficiary's subordinates as an operations secretary, a sales 
engineer, and a logistics engineer, the cment organizational chart lists the subordinates' job titles as an 
application engineer, an administrator, and an accountant and indicates that the application engineer and the 
administrator are both in the United States on temporary assignment from the foreign entity. The petitioner 
also provided the following list of the beneficiary's duties and responsibilities: 
Oversees general business practices. 
Correspondence with European [hleadquarters: 
Due to [the beneficiaryl's past work experience at [the foreign entity] in Germany and his 
knowledge of the German language[,] he is the key contact at the U.S.[-]based company for 
correspondence with the German [headquarters]. 
Manage duties of local staff: 
This involves assigning major tasks such as import and export of goods, sales and order 
processing and commercial procedures and regional client support and service to staff both 
in the office and in the field. 
Logistics management: 
Oversee product procurement, major logistics decisions and relationships with freight 
companies/carriers. 
Manage I.T. [nletwork: 
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Page 5 
Due to past experience working at company headquarters in Germany and extensive 
knowledge of I.T. and communication systems[, the beneficiary] oversees the local network 
at [the petitioning entity] in Florida, making sure it remains operational at all times and 
coordinating with German I.T. staff in regards to inter-company data communications and 
video conferencing needs. 
Reseller [rlelations: 
Oversee relations with resellers; establish pricing agreements, payment terms, logistics and 
shipping[-]related tasks and addressing any concerns that may arise. 
Trade shows and [elxhibitions: 
Visit trade shows and exhibitions, both to visit existing clients and resellers and also to 
participate in show[s] as an exhibitor answering business and product[-]related questions. 
Repair [hlandling: 
Currently processes repairs of products until such time as dedicated electronics technician 
is recruited and a local repair center is established . . . . 
As pointed out in the director's decision, the petitioner's quarterly tax returns show that the petitioner currently 
employs two people-the beneficiary and his superior. No evidence was submitted to establish that the 
petitioner employs any of the individuals who were identified as the beneficiary's subordinates. 
On May 6, 2008, the director issued a decision denying the petitioner's Form 1-129 on the basis that the 
petitioner failed to establish that it would employ the beneficiary in a position where the primary portion of 
the duties performed would be within a qualifying managerial or executive capacity. In support of his 
conclusion, the director discussed the amount of the beneficiary's compensation and questioned his 
educational credentials, finding that the beneficiary's salary is not commensurate with that of a manager or 
executive and that his apparent lack of sufficient education suggests that the beneficiary does not and would 
not occupy a professional position with the U.S. entity. The AAO notes, however, that there is no statute, 
regulation, or precedent decision that allows Citizenship and Immigration Services to consider the 
beneficiary's salary or level of education in determining whether his job capacity is that of a manager or 
executive. As such, the AAO withdraws the director's erroneous consideration of this information.' 
That being said, the director properly focused on the petitioner's broad description of the beneficiary's 
prospective employment and the petitioner's staff, which consists of only two employees, one of whom is the 
beneficiary himself. The director questioned the ability of the petitioner's two-person staff to relieve the 
beneficiary from having to primarily perform non-qualifymg tasks. More specifically, the petitioner 
questioned who, if not the beneficiary, would provide the services or deliver the products offered by the 
' It is noted that, while salary is irrelevant in determining the beneficiary's managerial or executive capacity, it is relevant 
in determining admissibility. See $ 212(a)(4) of the Act, 8 U.S.C. 4 1182(a)(4). Similarly, although neither the statute 
nor the regulations require that the beneficiary be a professional to qualify as a manager or executive under the Act, the 
beneficiary's education is relevant in determining whether he is qualified "to perform the intended services in the United 
States.'' 8 C.F.R. 9 212.2(1)(3)(iv). 
EAC 08 068 5 1762 
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petitioner. 
On appeal, counsel for the petitioner argues that the petitioner's level of staffing should not outweigh the 
beneficiary's job duties. While counsel's comment properly suggests the significance of multiple factors in 
determining the beneficiary's employment capacity, the beneficiary's job duties alone, even when described in 
sufficient detail, will not lead to a favorable conclusion unless the petitioner can provide corroborating 
documentary evidence establishing the petitioner's ability to relieve the beneficiary from having to primarily 
perform non-qualifying tasks. It is noted that going on record without supporting documentary evidence is 
not sufficient for purposes of meeting the burden of proof in these proceedings. Matter of Soffici, 22 I&N 
Dec. 158, 165 (Comm. 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm. 
1972)). Thus, not only must the petitioner provide statements that adequately describe the specific job duties 
that will comprise the beneficiary's time at work, but the petitioner must also provide documentation to 
establish that its organizational hierarchy is capable of supporting the beneficiary in a managerial or executive 
capacity given the description of the proposed employment. 
In the present matter, the petitioner has not provided an adequate description of the beneficiary's job duties 
and has provided documentation that suggests that its staffing levels at the time the Form 1-129 was filed were 
insufficient to relieve the beneficiary from having to primarily focus on performing non-qualifying job duties. 
First, with regard to the petitioner's staffing at the time of filing, the petitioner has indicated that two of the 
three positions that are subordinate to the beneficiary were filled by individuals who are employed abroad. 
The organizational chart that was submitted in response to the RFE specifically states that 
the application engineer, and, the administrator, are both employed by the foreign entity and are 
in the United States on temporary assignment. The petitioner has provided no documentation to establish that 
it actually pays either individual for the services they purportedly render to the U.S. entity. Even if the U.S. 
and foreign entities are affiliated through some form of common ownership, as claimed, the petitioner is still a 
separate entity. Therefore, it must provide documentary evidence to establish its employment of any 
individual, even those that may be permanent employees of the foreign entity. Going on record without 
supporting documentary evidence is not sufficient for purposes of meeting the burden of proof in these 
proceedings. Matter of SofJici, 22 I&N Dec. 158, 165 (Comm. 1998) (citing Matter of Treasure Crap of 
California, 14 I&N Dec. 190 (Reg. Comm. 1972)). 
As the petitioner has failed to establish that it employed anyone other than the beneficiary and his superior at 
the time the Form 1-129 was filed, the AAO is leR to question how the petitioner was able to relieve the 
beneficiary fiom having to primarily perform the daily operational duties. It serves to reason that if the only 
individuals the petitioner employed were the beneficiary and his superior, then the beneficiary would have no 
choice but to perform the petitioner's non-qualifpg tasks in order to ensure the petitioner's continued 
operation. 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). 
EAC 08 068 5 1762 
Page 7 
That being said, the AAO must address the other relevant issue in this discussion, which is the description of 
the beneficiary's proposed job duties, a key factor when determining whether the proposed employment is 
within a qualifying managerial or executive capacity. See 8 C.F.R. 8 214.2(1)(3)(ii). Precedent case law has 
firmly established the significance of providing a detailed description of the beneficiary's actual duties, which 
reveal the true nature of the employment. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1103, 1108 (E.D.N.Y. 
1989), afd, 905 F.2d 41 (2d. Cir. 1990). As such, reciting the beneficiary's vague job responsibilities or 
broadly-cast business objectives is not sufficient. The AAO will then consider the job description in light of 
the petitioner's organizational hierarchy, the beneficiary's position therein, and the petitioner's overall ability 
to relieve the beneficiary from having to primarily perform the daily operational tasks. 
In the present matter, the description provided suggests that a considerable portion of the beneficiary's time 
would be spent performing non-qualifying tasks, such as overseeing the local network and addressing issues 
that may come up to ensure continued operation at all times; overseeing all aspects of reselling, including 
payment terms and shipping; attending trade shows to visit clients and resellers; and processing repairs, which 
the beneficiary will continue to do until a technician is hired to assume this job duty. While the petitioner did 
not assign a percentage of time that the beneficiary would spend on any of the named tasks, the fact that most 
of the tasks that were given are non-qualifying only further supports the director's finding that the beneficiary 
would not primarily perform duties within a qualifying capacity. While the petitioner's lack of a sufficient 
support staff certainly explains its need to assign the above mentioned non-qualifying tasks to the beneficiary, 
the idea that the petitioner has not progressed to a stage of development where it can relieve the beneficiary 
from primarily performing non-qualifying tasks indicates that it is unable to support the beneficiary in a 
qualifying managerial or executive capacity. While the petitioner indicates that the beneficiary's duties 
would include managing a local staff, this claim is simply inconsistent with the evidence of record, which 
suggests that the petitioner does not have a staff for the beneficiary to manage. As the petitioner has failed to 
establish that the beneficiary would be employed in a managerial or executive capacity, this petition cannot be 
approved. 
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 13 13, 13 16 (9th Cir. 2006) (citing with approval Republic of Transkei v. INS, 923 F.2d 175, 178 (D.C. 
Cir. 1991)); Fedin Bros. Co. v. Sava, 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. Systvonics 
Corp. v. INS, 153 F. Supp. 2d 7,15 (D.D.C. 2001). 
Furthermore, the record suggests that the petition does not warrant approval based on additional grounds that 
were not addressed in the director's decision. Namely, the record is silent on the issue of the beneficiary's 
foreign employment. As such, the AAO cannot conclude that the petitioner meets the requirements of 8 C.F.R. 
§§214.2(1)(3)(iii) and (iv), which require that the beneficiary has at least one year of full-time employment 
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with a qualifying entity abroad within three years prior to filing the petition and that such employment was 
within a qualifying managerial or executive capacity, respectively. 
Lastly, service records show the petitioner's previously approved L-1 employment of the beneficiary. In light 
of this information, the MO notes that each nonirnrnigrant and immigrant petition is a separate record of 
proceeding with a separate burden of proof; each petition must stand on its own individual merits. CIS is not 
required to assume the burden of searching through previously provided evidence submitted in support of 
other petitions to determine the approvability of the petition at hand in the present matter. The prior 
nonimmigrant approvals do not preclude CIS from denying an extension petition. See e.g. Texas AM Univ. 
v. Upchurch, 99 Fed. Appx. 556,2004 WL 1240482 (5th Cir. 2004). 
Furthermore, if the previous nonirnmigrant petition was approved based on the same unsupported assertions 
that are contained in the current record, the approval would constitute material and gross error on the part of 
the director. The AAO is not required to approve applications or petitions where eligibility has not been 
demonstrated, merely because of prior approvals that may have been erroneous. See, e.g. Matter of Church 
Scientology International, 19 I&N Dec. 593, 597 (Comm. 1988). It would be absurd to suggest that CIS or 
any agency must treat acknowledged errors as binding precedent. Sussex Engg. Ltd. v. Montgomery, 825 F.2d 
1084, 1090 (6th Cir. 1987), cert. denied, 485 U.S. 1008 (1988). 
Finally, the AAO's authority over the service centers is comparable to the relationship between a court of 
appeals and a district court. Even if a service center director had approved the nonirnrnigrant petitions on 
behalf of the beneficiary, the AAO would not be bound to follow the contradictory decision of a service 
center. Louisiana Philharmonic Orchestra v. INS, 2000 WL 282785 (E.D. La.), afd, 248 F.3d 1139 (5th Cir. 
2001), cert. denied, 122 S.Ct. 51 (2001). 
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 Enterprises, 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. 8 U.S.C. 8 136 1. Here, that burden has not been met. Accordingly, the appeal will be dismissed. 
ORDER. The appeal is dismissed.