dismissed L-1A Case: Engineering

U.S. Department of Homeland Security 
20 Mass. Ave., N.W , Rm. A3042 
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\"* & *+ and Immigration 
FLB: LIN 02 214 55 13 1 Office: NEBRASKA SERVICE CENTER Date: 
PETITION: Petition for a Nonirnrnigrant Worker Pussuant to Section 101(a)(15)(L) of the Immigration 
and Nationality Act, 8 U.S.C. rj 1 lOl(a)(i5)(L) 
ON BEHALF OF PETITIOhXR: 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to 
the cffice [hat originally decided your case. Any further inquiry must be made to that office. 
/T,/ v~ L*+*-"-@ 
L~obert P. Wiernann. Director 
drninistrative Appeals Office 
LIN 02 214 55131 
Page 2 
DISCUSSION: The Director, Nebraska 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 nonirnmigrant petition seeking to change the beneficiary's classification as an L-1B 
nonirnrnigrant intracompany transferee with specialized knowledge to an L-1A intracompany transferee 
pursuant to 5 101(a)(15)(L) of the Immigration and Nationality Act (the Act), 8 U.S.C. 8 1 101(a)(15)(L). The 
yetitioner is a corporation organized in the State of Delaware that designs, manufactures, markets, and 
services compressors. The petitioner clai~ns that it is the parent of the beneficiary's foreign employer, located 
in South Africa. The petitioner now seeks to employ the beneficiary as a rotary engineer I1 for three years. 
'The director denied the petition concluding that the petitioner failed to demonstrate that the beneficiary would 
be employed by the United States entity in a primarily managerial or executive capacity. The director noted 
that according to the description of the beneficiary's responsibilities, the beneficiary would spend 
approximately 83% of his time performing operations related to engineering, rather than primarily performing 
managerial duties. 
On appeai, counsel claims that the beneficiary's proposed position satisfies the requirements oi managerial 
capacity because: (1) the beneficiary manages the function of the petitioner's rotary profile technology 
programs; (2) the beneficiary manages and controls engineering personnzl; (3) the beneficiary has the 
wthority to hire and fire subordinate employees and initiate other personnel actions; and (4) the beneficiary 
exercises discretion over the daily operations of a function of the business, as the beneficiary is solely 
responsible for the design and devdopment of the rotary screw compressor components. Counsel submits a 
brief in support of the appeal. 
To estabiish L-1 aligibility, the petitioner must meet the criteria outlined in section 101(a)(25)(L) of the Act. 8 - 
U.S.C. 5 1101(a)(15)(L). Specifically, within three years preceding the beneficiary's application for 
admission into the United States, a qualifying organization must have employed the beneficiary in a 
qualifying managerial or executive capacity, or in a specialized knowledge capacity, for onz continiious year. 
Ln addit~on, 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, @s specialized 
knowledge c~pacity. 
The regulation at 8 C.F.R. 5 214.2(1)(3) states that an individual petition filed on Fonn 1-129 shall be 
accompanied by: 
(i) Evidence that the petitioner and the organization which employed or will employ the alien are 
qualifying crganizations 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 cdpacity, 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, 
LIN 02 214 55131 
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training, and employment qualifies himlher 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 issue is whether the beneficiary would 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. § 1101(a)(44)(A), provides: 
The term "managerial capacity" means an assignment within an organization in which the employee 
prj marily- 
(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; 
Gii) Has the authority to hire and fire or recommend those as well as other persorlnei actions 
(such as promotion and leave authorization) jf another employee or other employees are directly 
supervised: if no uther employee is directly supervised, functions at a senior level within the 
organizational hierarchy or with respect to the function managed; and 
(iv) Exercises discretion wer 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 1 lOl(a)(44)iB), provides: 
The term "executive capacity" means an assignment within an organization in which the employee 
primarily- 
() Directs the manzgement of the organization or a major component or function of the 
organiz&tion; 
(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 petitioner filed the nonimrnigrant petition on June 19, 2002. In an accompanying letter, dated June 17, 
2002, the petitioner outlined the beneficiary's proposed job duties as: 
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1) Manage our extremely proprietary Rotor Profile Technology Programs; 
2) Design and develop high quality, reliable, and competitive products particularly where 
prior practice may not provide direction; 
3) Maintain professional technical competence in the fields of engineering sciences; 
4) Motivate and supervise technical staff to achieve project goals; 
5) Cornmuiiicates with peer groups in other departments to resolve problems and to meet 
objectives; 
6) Support marketing, sales, and service personnel in technical fields resolving 
unstructured product problems; 
7) Analyze and correct product problems; request GDI technical positions at 
customer/distribution meetings; 
3) Responsible for the engineering design and developn~ent of key conipoaents related to . 
- our rotay screw colnpressor products; 
3) Manage a group of Engineering personnel on various design projects. 
The petidoiler submitted an organizatioaal chart of its engineering staff, which identified the beneficiary in 
the organization's third staffing level, subordinate to the petitioner's director of engineering and manager of 
engineering rotary products. The staffing level below the beneficiary included the following six employees: 
product document specialist; product engineering coordinator I; product designer; machine designer: two 
drafters. 
In a request for evidence, dated August 29, 2002, the director requested that the petitioner further explain the 
tasks involved with each of the beneficiary's above-outlined job duties, and asked that the petitioner 
supplement the beneficiary's job description with an allocation of the ameunt of time the beneficiary would 
spend on each task. The director also noted that the petitioner's organizational chart identified that the 
beneficiary has one direct subordinate. The director asked that the petitioner explain the subordinate's job 
duties arid provide a verification of his or her drafting degree. 
Counsel responded in a letter dated November 13, 2002 and provided the following time allocation for the 
beneficiary's job duties: 
Manage our extremely proprietary Rotor Profile Technology Programs (20%) 
Design and develop high quality, reliable, 3nd competitive products particularly where prior 
practice may not provide direction (20%) 
Responsible for the engineering design and development of key components related to our 
rotary screw compressor products (20%) 
LIN 02 214 55131 
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Maintain professional technical competence in the fields of engineering sciences (12%) 
Manage a group of Engineering personnel on various design projects (10%) 
Analyze and correct product problems; request WID technical positions at 
customer/distribution meetings (9%) 
Motivate and supervise technical staff to achieve project goals (5%) 
Communicates with peer groups in other departments to resolve problems and to meet 
objectives (2%) 
Support marketing, sales, and service personnel in technical fields resolving unstructured 
product problems (2%) 
Cou~isel also explained that with regard to managing the rotor profiled technology programs, the beneficiary 
would be respo~isible for: 
Develcpment cf software to generate the rotor profiles. Generation of the inlet and discl~arge 
yorting required by the rotors. Development of software to 2.walyze the profiles, i.e. sealing 
line lzngth, blow hole sizes, cell volume curve. Use dedicated software to compute the 
themlodynamic behavior of the gas during the compression process. Generation of the rotor 
profile clearance distribution. This includes the testing of rotors to establish their wear 
characteristics. Keeping track of the advances and characteristics of competitor's profile;. 
Calculation of the reaction loads on the rotors due to the gas pressure; and the resultant load 
on the berings. Determination of which rolling element bearings are required to carry the 
loaded rotors for an acceptable life expectancy. 
In an accompanying letter from the petitioner to counsel, dated October 14, 2002, the petitioner explained that 
with regard to the support personnel subordinate to the beneficiary, the beneficiary along with five olher 
engineers share tbe "pool" of six subordinate employees. The petitioner clarifies in the letter "that there is not 
a one-on-one relationship" between the beneficiary and any of the six subordinates. The petitioner provided 
comprehensive job descriptions for each of the support positions. -4s the descriptions are part of the iecord. 
they will not be repeated herein. 
In a decision dated January 27, 2003, the director determined that the petitioner did not demonstrate that the 
beneficiary would be employed by the United States entity in a qualifying capacity. The director outlined the 
job duties to be performed by the beneficiary and concluded that the beneficiary would spend approximately 
83% of his time performing the operations of the engineering department. The director noted that the 
remaining 17% of the beneficiary's time would be dedicated to managerial duties, such as supervising the 
technical staff, communicating with peer groups and managing engineers. The director concluded that the 
1 beneficiary would be primarily performing the functions of an engineer, rather than those of a manager or an 
executive. Accordingly, the director denied the petition. 
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In an appeal filed on March 3, 2003, counsel states that the director erred in concluding that the beneficiary 
does not qualify as a manager. Counsel outlines section 101(a)(44)(A) of the Act, and claims the following: 
[The beneficiary] manages the function of the Rotary Profile Technology Programs at [the 
petitioning organization]. As the employer letter suggested, 20% of [the beneficiary's] time 
would be involved in the managerial capacity of the rotor profile technology programs. . . . 
Due to [the beneficiary's] extensive training and expertise in this field, he is one of the major 
resources for the analytical design of the rotor profiling and modeling programs for [the 
petitioning organization]. [The beneficiary] is highly involved in the design to continue 
launching a cutting edge high efficiency line of rotary compressors over the next two years. 
Secondly, [the beneficiary] meets the second prong of the INA 101 (a)(44)(A) and the 8 
C.F.R. 214.2(1)(1)(ii)(A) standard. He 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. [The beneficiary] controls 
and manages a group of Engineering personnel on various design projects while working in 
his capacity as Rotary Engineer I1 position as was listed in the job duties. . . . 
[The beneficiary] also meets the ihird prong of the INA lOlja)(44)(A) and the 8 C.F.R. 
2 14.2(1)( l)(ii)(A) standard. [The beneficiary] has authority to recommend thc hiring arid 
king of personnel those [sic] as well as other personnel actions of the employees he directly 
supervises. [The beneficiary] supervises 5 employees as the organizational chart (Exhibit B) 
supports this contention as do the statement of job duties that were included in the original 
~scket and the Request for Additional Evidence. (Please see Exhibit B) 
Lastly, lthe beneficiary] meets the fourth requirement of the INA 101 (a)(44)(A) and the 8 
C.F.R. 214.2(l)(l)(ii)(A) standard. [The beneficiary] exercises discretion over the day-to-day 
operations of the function for which he has authority. [The beneficiary] is solely responsible 
for the engineering design and development of the key components related to the rotary screw 
compressor products. He also manages the Rotor profile technology programs within [the 
petitioning organization]. He also initiates the design and development of Eigh quality, 
reliable and competitive products that keeps [the petitioner] on the forefront of technology in 
the field of rotary compressors. 
On reliew, the petitioner has not established that the beneficiary would be employed in the United States in a 
qualifying capacity. The definitions of executive and managerial capacity have two parts. First, the petitioner 
must show that the beneficiary performs the high level responsibilities that are specified in the definitions. 
Second, the petitioner must prove that the beneficiary primarily performs these specified responsibilities and 
does not spend a majority of his or her time on day-to-day functions. Champion World, Znc. v. INS, 940 F.2d 
1533 (Table), 1991 WL 144470 (9th Cir. July 30, 1991). 
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. 5 214.2(1)(3)(ii). As required in the regulations, the 
petitioner must submit a detailed description of the executive or managerial services to be performed by the 
beneficiary. Id. While the petitioner submitted a detailed job description for the beneficiary, the accompanying 
time allocation demonstrates that the beneficiary would dedicate the majority of his time to performing daily 
LIN02214 55131 
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functions of the engineering department. As outlined by the petitioner, the beneficiary would spend 
approximately 61% of his time on the following non-qualifying tasks: (1) designing and developing products; (2) 
maintaining professional technical competence; (3) analyzing and correcting product deficiencies; and (4) 
designing and developing key components of the petitioner's rotary screw compressor products. 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). 
An additional 20% of the beneficiay's time would be spent managing the rotor profile technology programs. 
Although the petitioner indicates that the beneficiary would "manage" these programs, the petitioner's explanation 
of this task implies that the beneficiary would instead be personally developing the technology programs. The 
term "function manager" applies generally when a beneficiary does not supervise or control the work of a 
subordinate staff but instead is priniarily 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 f~nction. 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. employee .&ho primarily 
perform 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 Uec. at 604. 
Sere, the petitioner indicates that the beneficiary's specific responsibilities related to this task i~lcludt: developing 
software to analyze and generate rotor profiles, testing rotors, and tracking competitor's profiles. The remaining 
responsibilities also involve actually working on the programs. The petitioner's description fails to substantiate its 
claim that the beneficiary is actually "managing" the programs. While the petitioner claims that the beneficiary 
"has access to [the] pool of subordinates," the petitioner does not state whether any of the six employees would 
perfcrni the functions of the rotor profile technology programs. It is therefore reasonable to assume from the 
petitioner's job description that the beneficiary would not be "managing the rotor profile technology programs," 
but rather, performing the functions involved in developing the programs. Consequently, the beneficiary would 
dedicate a cumulative 8 1% of his umc to non-managerial and non-executive job duties. Clearly. the beneficiary 
would not be employeti in a primII'ly managerial or executive capacity. 
Moreover, although counsel claims on appeal that the beneficiary supervises five subordinate employees, the job 
descriptions related to these positions do not substantiate this claim. Each of the job descriptions submitted states 
that the specific employee would be required to report to the product engineer manager or the senior technician. 
Despite what is portrayed on the petitioner's organizational chart, it would therefore seem that the lower-level 
employees would report to the beneficiary's manager, the "manager [of] engineering rotary products," rather than 
directly to the beneficiary. 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). 
Furthermore, it does not appear from the record that any of the lower-level employees are professional, 
managerial, or supervisory employees. Although the beneficiary is not required to supervise personnel, if it is 
LIN 02 214 55131 
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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. 
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. $ 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 instruetion 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. 817 (Corn. 1988); Matter of Ling, 13 I&N Ilec. 35 (R.C. 1968); 
Matter ofshin, 11 I&N Dec. 686 (D.D. 1966). 
Therefore, the AAO must focus on the level of education required by the position, rather than the degree held 
by the subordinate employee. The possession of a bachelor's degree by a subordinate employee does not 
automatically lead to the conclusion that an employee is employed in a professional capacity as that term is 
defined above. In the instant case, the petitioner has not established that an advanced degree is actually 
necessary. for example, to perform the work of a product document specialist, product engineering 
coordinator, p~oduct designer, machine designer, or drafter. A first-line supervisor is ilot considered to be 
acting in managerial capacity merely by virtue of the supervisor's supervisory auties unless the employees 
~ superlised are professional. 8 C.F.R. 8 214.2(1)(1 j(ii)(U)(3). 
Sased on the foregoing discussion, the petitioner has failed to demonstrate that the beneficiary would be 
employed by the United States entity in a primarily managerial or executive capacity. For this reason, the 
~ppeal wil! be dismissed. 
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. 5 1361. Here, that burden has not been met. Accordingly, the 
director's decision will be affirmed and the petition will be denied. 
DRDF!!R : The appeal is dismissed.