dismissed L-1A Case: Export/Trade

U.S. Department of Homeland Seeurity 
20 Mass Ave. N.W., Rm. A3042, 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
Date: 
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) 
IN BEHALF OF PETITIONER: 
SELF-REPRESENTED 
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 
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Page 2 
DISCUSSION: The Director, Vermont Service Center, denied the petition for a nonirnmigrant visa. The 
matter is now before the Administrative Appeals Ofice (AAO) on appeal. The AAO will dismiss the appeal. 
The petitioner filed this nonimmigrant petition seeking to extend the employment of its president and chief 
executive officer 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. l.lOl(a)(lS)(L). The petitioner claims to be a 
corporation organized in the State of New York engaging in export operatio 
supply and maintenance. The petitioner claims that it is the subsidiary of 
' located in Moscow, Russia. The beneficiary was initially 
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 declinea to treat the appeal as a motion and 
forwarded the appeal to the AAO for review. On appeal, the petitioner asserts that the beneficiary is 
employed by the U.S. entity in a primarily managerial or executive capacity, and that the beneficiary has 
managed, directed and supervised the work of four subordinate professionals andlor managers in the U.S. 
entity. In support of these assertions, the petitioner submits additional evidence. 
To establish eligibility for the L-1 nonimmigrant visa classification, the petitioner must meet the criteria 
outlined in section lOl(a)(lS)(L) of the Act. Specifically, a ¶ualifyiCg 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. 
(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 
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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. Ij 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. 
At issue in the present matter 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. 9 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 
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(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. 4 1101(a)(44)(%), 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 fiom higher level executives, the board 
of directors, or stockholders of the organization. 
In a letter dated November 14, 2003 accompanying the initial petition, the petitioner described the 
beneficiary's job duties as follows: 
[The beneficiary] provides overall management to the U.S. business operations and direct 
development, implementation of trading prajects and contracts, and directs purchasing and 
shipping of the products to Russia. The position requires that [the beneficiary]: 
select a project to be of significant interest and profitable for [the] company; 
inspect and analyze the performance of the contracts and agreements, execute new 
contracts and agreements with [the company's] current and prospective customers; 
supervise and direct purchasing of the subject merchandise for shipment; 
supervise and direct inspecting and analyzing of the subject merchandi[s]e and 
equipment to determine the quality and value attributed to the Russian marketplace; 
select and order the products from either manufacturing representatives or fiom the 
open market basing the selections on customers' requirements, or the demand for 
particular specifications; 
oversee shipping of the products overseas with various carriers; 
authorize payments of invoices or return of the products; 
conduct meetings to introduce new products and services, and develop new customer 
bases: 
maintain regular communication with Russia, regarding the 
shipping and distribution of the products and services, and 
seIect, hire and supervise training of new personnel while expanding our company's 
intervention onto the U.S. market and supervise existing personnel in terms of 
performance of their corresponding duties. 
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Additionally, [the beneficiary] participates in formulating overall activities within the 
company's business operations scope, review analyses of activities, costs, operations and 
forecast data to determine the progress of [the] U.S. operations. Overall, his regular day is 
devoted to executing [sic] of approximately 90% of the managerial duties, and 10% non- 
managerial duties. 
On November 25, 2003, the director requested additional evidence. Specifically, the director noted that the 
beneficiary's duties as previously described do not appear to relate primarily to policy and general operations 
oversight, but instead, to the day-to-day operations involved in producing a product or providing a service as 
well as the supervision of nonqualifying employees. The director requested that the petitioner submit a 
comprehensive description of the beneficiary's duties, indicating how such duties will be managerial or 
executive, and demonstrating that the beneficiary will function at a senior level within the organizational 
hierarchy as well as in position title, or that he will be managing a subordinate staff of professional, 
managerial, or supervisory personnel who will relieve him from performing non-qualifying duties. The 
director also requested a list of the U.S. entity's employees, with each employee's name, title, job description, 
and breakdown of the number of hours devoted to each of the employee's job duties. 
In a letter dated December 10, 2003 responding to the request for further evidence, the petitioner stated the 
following with respect to the beneficiary's job duties: 
[The beneficiary] provides overall management to the U.S. business operations and direct[s] 
development, implementation of trading projects and contracts, and directs developing, 
purchasing, and shipping of the products to and from Russia. In addition to the duties 
described in the original extension letter, the position requires that [the beneficiary] continues 
providing the following: 
1) Determination of the strategy of the Company's development, formation and 
amendment of the Company's business structure; making of decisions on payments of 
the dividends of the Company [at] the end of the fiscal year - 2 hours per week; 
2) Selection, hire of new key personnel and supervision over performance of the existing 
personnel's duties; making decisions on additional hire of new personnel and fire 
current employees; determination of subordination hierarchy between the existing 
managerial personnel; assignment of projects to subordinated personnel and review the 
work for quality; setting up of amounts of remuneration and system of motivation for 
the Company's managers - 5s; 
3) Inspection and analysis of the performance of the contracts and agreements, execution 
of new contracts and agreements with our current and prospective customers; making 
of the resolutions and orders for the Company's personnel; disposition of the 
Company's assets - 5; 
4) Supervision and direction of the key merchandize [sic] and equipment's acquisition 
aiming at the determination of the quality and value attributed to the Russian 
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marketplace; control over the subordinated personnel proper execution of their 
corresponding duties - 10 hrs; 
5) Organization of fund raising for the Company's current and future projects - 6; 
6) Setting up the rules for pricing for the Company's products and services - 2; 
7) Determination of the conditions and methods of attraction of investors, conduct 
meetings with current and prospective investors; conduct of systematic meetings with 
the Company's managers with their regular reports on business operations; setting up of 
deadlines for the personnel [sic] - 4; 
8) Select a project to be of significant interest and profitable for the company - 2 hrs; 
9) Oversee[ ] shipping of products - 1 hr; . 
10) Authorize[ ] payments of invoices or return of products - 1 hr; 
11) Maintain[ ] regular communications with Russian parent company re shipping and 
distribution of products and services - 2 hrs. 
Additionally, [the beneficiary] will participate in formulating overall activities within the 
U.S. company's commercial, financial, budget and credit operations, review figures of its 
economic activity, costs, operations, and forecast data to determine the progress of our U.S. 
operations. 
The petitioner indicated that the beneficiary directly oversees four other employees in the U.S. entity - a 
virtual reality systems engineer, a technical support and maintenance manager, and office manager, and a 
customer service manager. The petitioner also provided the names, job duties, and hourly breakdown by duty 
for these employees. The petitioner stated that during the next fiscal year, the company expects to hire three 
additional employees - a home automation systems engineer, a home automation systems technician, and a 
logistic specialist. 
On December 22, 2003, the director denied the petition concluding that the record does not establish that the 
beneficiary has been or will be employed in either a managerial or an executive capacity within the U.S. 
entity. Specifically, the director found that the beneficiary's job description includes several duties that would 
not be considered managerial or executive, and the record does not show that the beneficiary is indeed being 
relieved from performing duties of the daily operation of the company. Further, the director found the 
petitioner has not established that the beneficiary will function at a senior level within the organization's 
hierarchy other than in title, or that he would be involved in the supervision or control of the work of other 
supervisory, professional, or managerial employees who would relieve him fi-om performing the services of 
the corporation. 
On appeal, the petitioner contends that the beneficiary actually manages the business operations of the 
company, as well as the work of the four subordinate employees, whom it maintains are professionals and/or 
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managers. The petitioner claims that the tasks that the director found to be "non-managerial" comprised less 
than 25% of the beneficiary's duties, and that "80% of the listed duties correspond to a higher managerial or 
executive position." The petitioner contends that the beneficiary's subordinates are professional or managerial 
employees, drawing extensive comparison between the descriptions of their jobs and those of "corresponding" 
jobs listed in the Occupational Outlook Handbook (OOH). Finally, the petitioner argues that the petitioner 
was not given sufficient time to fulfill it's goal of hiring three more employees. 
Upon review, the AAO finds that the record as presently constituted is insufficient to demonstrate that the 
beneficiary would be employed by the U.S. entity in a primarilymanagerial 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. 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. The petitioner must specifically state whether the 
beneficiary is primariIy employed in a managerial or executive capacity. In the instant matter, the petitioner 
has not made clear whether the beneficiary is to be employed in a managerial or executive capacity. In fact, 
the petitioner initially stated in the November 14, 2003 letter that the beneficiary's day "is devoted to 
executing . . . approximately 90% of the managerial duties," but later indicated in response to the director's 
request for further evidence and on appeal that the beneficiary's duties "correspond to a higher managerial or 
executive position" (emphasis added). A petitioner cannot claim that some of the duties of the position entail 
executive responsibilities, while other duties are managerial. A beneficiary may not claim to be employed as 
a hybrid "executive/manager" and rely on partial sections of the two statutory definitions. 
Moreover, 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. Inc. v. INS, 940 F.2d 1533 
(Table), 1992 WL 144470 (9th Cir. July 30, 1991). The petitioner has not made that showing in this matter. 
The petitioner's claim that 80% of the beneficiary's job duties are "managerial or executive" is not supported 
by the record. The petitioner submitted two descriptions of the beneficiary's job duties. The initial job 
description listed a number of duties, but failed to indicate the time spent on these duties. At the director's 
request, the petitioner submitted another job description enumerating some of the duties on the earlier list as 
well as a number of new duties. On the second job description, the petitioner did set forth the number of 
hours allocated to each duty listed, totaling 40 hours per week. However, the petitioner indicated that the set 
of duties listed in the later job description are "[iln addition to the duties described in the original extension 
letter." Since there remain a number of duties on the initial job description for which no time allocation was 
provided, it cannot be determined based on the present record how much time the beneficiary actually worked 
per week and, consequently, what percentage of the beneficiary's workweek certain duties comprised. 
Moreover, in stating that "[tlhe position description provides several duties that would not be considered 
managerial or executive such as executing contracts, organizing fundraising or making resolutions and orders 
for company's personnel," the director has only listed some of the beneficiary's non-qualifying tasks. Upon 
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reviewing the record, the AAO finds that a number of the beneficiary's other duties also do not appear to be 
managerial or executive in nature. For example, the duties on the beneficiary's initial job description also 
include "select and order the products from either manufacturing representatives or from the open market 
basing the selections on customers' requirements, or the demand for particular specifications," and "conduct 
meetings to introduce new products and services, and develop new customer bases." These duties appear to 
be tasks necessary to provide the company's services or products and therefore cannot be considered 
managerial or executive in nature. In addition, the petitioner claims that the beneficiary "supervise[s] and 
directls] purchasing of the subject merchandise for shipment," "supervise[s] and directrs] inspecting and 
analyzing of the subject merchandi[s]e and equipment to determine the quality and value attributed to the 
Russian marketplace," "oversee[s] shipping of the products overseas with various carriers," and "authorize[s] 
payments of invoices or return of the products." However, based on the job descriptions of the beneficiary's 
subordinate employees, it does not appear that any of those employees actually perform the merchandise 
purchasing, inspection, and shipping functions listed above. Thus, either the beneficiary himself is 
performing such functions, or he does not actually oversee and supervise those functions as the petitioner 
claimed. Ln either case, the AAO is left to question the validity of the petitioner's claim and the remainder of 
the beneficiary's claimed duties. Doubt cast on any aspect of the petitioner's proof may, of course, lead to a 
reevaluation of the reliability and sufficiency of the remaining evidence offered in support of the visa petition. 
Matter of Ho, 19 I&N Dec. 582, 591 (BIA 1988). Moreover, as discussed above, the record is insufficient to 
determine what percentage of the beneficiary's workweek these non-qualifying tasks actually comprise. 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 of Scientology 
International, 19 I&N Dec. 593,604 (Comm. 1988). 
The petitioner also challenges the director's finding that the beneficiary does not supervise professional, 
supervisory or managerial employees. Although the beneficiary is not required to supervise personnel, since 
the petitioner claims that his duties involve supervising employees, the petitioner must establish that the 
beneficiary's subordinate employees are supervisory, professional, or managerial. See 4 101(a)(44)(A)(ii) of 
the Act. The petitioner has failed to do so here. 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. 3 1101(a)(32), states 
that "[tpe 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. 817 (Comm. 
1988); Matter of Ling, 13 I&N Dec. 35 (R.C. 1968); Matter of Shin, 11 I&N Dec. 686 (D.D. 1966). As such, 
the AAO must focus on the level of education required by the position, rather than the degree held by 
subordinate employees. 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 matter, while the petitioner indicated that the beneficiary's subordinates all 
possess advanced degrees, the petitioner has not provided sufficient evidence to establish that an advanced 
degree is actually necessary for the positions occupied by those employees. At the same time, despite their 
managerial titles, the record does not show that any of the beneficiary's subordinate employees supervise 
other staff members or manage a clearly defined department or function of the petitioner, such that they 
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could be classified as managers or supervisors. Thus, 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 further notes that on appeal, in support of the claim that the beneficiary's subordinate employees 
are actually managerial and professional, the petitioner asserts that the positions of these employees are 
comparable to certain positions listed in the OOH, and the petitioner refers at length to the descriptions for 
those positions in the OOH. The AAO finds the petitioner's references to the OOH to be lacking in probative 
value. While the OOH may provide useful guidance with respect to general categories of jobs, the 
information therein does not pertain to the specific jobs in this particular company. The petitioner's facts in 
this matter must speak for themselves. The actual duties of the employees themselves reveal the true nature 
of the employment. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1 103, 1 108 (E.D.N.Y. 1989), affd, 905 F.2d 
41 (2d. Cir. 1990). 
Finally, the AAO notes the petitioner indicated that it plans to hire three additional employees in the future, 
and argues on appeal that it was not given sufficient time to fulfill it's hiring goals. However, 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 MicheIin Tire Corp., 17 I&N Dec. 248 (Reg. Comm. 1978). Furthermore, the regulation at 8 C.F.R. 5 
214.2(1)(3)(v)(C) allows the intended United States operation one year within the date of approval of the 
petition to support an executive or managerial position. There is no provision in the regulations governing the 
Citizenship and Immigration Services (CIS) that allows for an extension of this one-year period. If the 
business is not sufficiently operational after one year, the petitioner is ineligible by regulation for an 
extension. In the instant matter, the petitioner has not reached the point that it can employ the beneficiary in a 
predominantly managerial or executive position. 
In light of the foregoing, the AAO finds 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). 
Beyond the decision of the director, the record contains insufficient evidence to establish that a qualifying 
relationship exists between the U.S. and foreign entities pursuant to 8 C.F.R. 5 214.2(1)(l)(ii)(G). The 
petitioner claims that it is a corporation organized in the State of New York and that it is 100% owned by the 
beneficiary, who also owns 70% of the foreign entity. However, the petitioner has failed to provide any 
formation documentation, such as the articles of incorporation or by-laws of the company, to establish that the 
U.S. entity is in fact a corporation legally formed under the laws of the State of New York as claimed. The 
petitioner also has failed to submit any evidence of the ownership and control of the U.S. entity at the time the 
petition was filed.' Based on the evidence of record, the AAO is unable to determine that the U.S. entity is a 
I 
The AAO notes that the record does contain the petitioner's U.S. Corporation Income Tax Return for the 
year beginning July 1,2002 and ending June 30,2003, which indicates that the beneficiary owns 100% of the 
U.S. entity's stock during that period. However, without further evidence, that document alone is insufficient 
to establish the ownership and control of the U.S. entity at the time the petition was filed in November 2003. 
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qualifying organization and that it has a qualifying relationship with the foreign entity, as required under 8 
C.F.R. $ 214.2(1)(l)(ii)(G). For this additional reason, the petition may not be approved. 
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). 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 it discretion with respect to all of the AA0's 
enumerated grounds. See Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d at 1043. 
The petition will be denied for the above stated reasons, with each considered as an independent and 
alternative basis for denial. 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. 4 1361. Here, that burden has 
not been met. Accordingly, the director's decision will be afirrned and the petition will be denied. 
ORDER: The appeal is dismissed.