dismissed L-1A Case: Film And Packaging

US. Deportment of Homeland Security 
20 Mass. Ave.. N.W., Rm A3042 
Wash~ngton, DC 20529 
U.S. Citizenshi 
Services 
P and Tmmipat on 
FILE: SRC 02 2 10 50542 Ofice: TEXAS SERVICE CENTER Date: dM 1 4 Iur1 
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 10l(a)(lSXL) of the 
Immigration and Nationality Act, 8 U.S.C. 5 1 I01 (ax1 5XL) 
I 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
This is the decision'oithe Admtnistrative 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 
officc. 
j,,&&l- 
#&obert P. Wiemann, Dinctor 
V 
Admin~strative Appeals Office 
I 
1 
SRC 02 2 10 50542 
Page 2 
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DISCUSSION: The nonimmigrant visa petition was denied by the Director, Texas Service Center, 
and is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be 
chsmissed. 
The petitioner,, endeavors to classify the beneficiary as an executive 
pursuant to section lOl(a)(lS)(L) of the Imm~gration and Nationali Act (the Act), 8 U.S.C. 4 
1 lOl(a)(lS)(L). The petitioner 1s a subs~d~ary o fyocated m Korea and is 
engaged in the import and export of special film and packaging labels. It seeks to extend the 
petition's validity and the beneficiary's stay for two years as the U.S. entity's president.' The 
petitloner was incorporated in the State of Florida on July 2, 2001 and claims to have two 
employees. 
On July 5, 2002, the director derucd the petition because the petitioner had not established that 
the beneficiary will serve in a primarily executive capacity. 
1 
On appeal, the petitioner's counsel states that the beneficiary is employed in an executive 
capacity and directs the management of the organ~zation or a major component or function of the 
organization. Counsel subnuts a brief and additional evidence in support of the appeal. 
TO establish L-1 eligibility under section 10 l (a)( 1 SKL) of the Immigration and Nationality Act (the 
Act), 8 U.S.C. (i 1 101 (a)(15)(L), the petitioner must meet certaln criteria. Spec~fically, within three 
years preceding the beneficiary's application for admission into the United States, a qualifLing 
organlzahon must have employed the beneficiary in a qualifying rnanagenal or execuove capacity, 
or in a specialrzed knowledge capacity, for one continuous year. Furthermore, the beneficiary must 
seek to enter the Untted States temporarily to continue rendering his or her smces to the same 
employer or a subsidiary or affiliate thereof in a managerial, execuhve, or specialized knowledge 
capacity. 
In relevant part, the regulations at 8 C.F.R. 4 214.2(1)(14)(3) state that an individual petition filed 
on Form 1-1 29 shall be accompanied by: 
(i) Evidence that the petitioner and the organization which employed or will 
employ the alien are qualifying organlzations as defined in paragraph (I)(l)(ii)(G) 
of ths 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. 
1 The AAO notes that on Form 1-129, in part two, number four, the petitioner erroneously 
checked the box to change the status and extend the beneficiary's stay since the beneficiary is in 
another status. However, this option is only available where the beneficiary's basis for 
classification is for new employment. 
SRC 02 2 10 50542 
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Pursuant to 8 C.F.R. 8 214.2(1)(14)(ii); if the petitioner is filing a petition to extend the 
beneficiary's stay for L- 1 classification, the regulation mquires: 
A visa petition under section IOl(a)(lS)(L) which involved the opening of a new office 
may be extended by filing a new Form I- 129, accompanied by the following: 
(A) Evidence that the United States and.foreign entities are stilI 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; 
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(C) A statement of the duties performed by the beneficiary for the previous 
year and the duties the beneficiary w~ll perfonn under the extended petition; 
(D) A statement describing the staffing of the new operation, including the 
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number of employees and types of positions held accompanied by evldence of 
wages pa~d to employees when the beneficiary will be employed in a managerial 
or executive capacity; and 
I, (E) Evidence of the financial status of the United States operation. 
The first issue in th~s proceeding is whether the beneficiary will be pnmanly performing 
executive duties for the United States entity. The petitioner makes no claim that the beneficiary 
will be performing managerial duties. 
Section 10 l(a)(44XB) of the Act, 8 U.S.C. 5 1 10 l(a)(44)(B), provides: 
The term "executive capacity" means 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 policles of the organization, component, or 
function: 
(iii) exercises wide latitude in discretionary decision-making: and 
I (iv) receives only general supervision or direction fiom higher level 
executives, the board of directors, or stockholders of the organization. 
On June 27, 2002, the petitioner filed Fonn 1-129. On Form 1-129, the petitioner indicated that 
there were two employees and described the beneficiary's duties as developing marketmg 
channels, building the customer base, setting the goals and strategies of the company, and hmng 
ern&oyes. 
SRC 02 210 50542 
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In addition, in a June 6,2002 letter, the vice-president of the petitioning entity stated: 
[The beneficiary] will keep playing a key role at Pehboner company and carry out 
the same managenal and executive fkction as the chief executive officer of 
Petitioner. As President of Pehtioner Company, [the beneficiary] will be responsible 
for setting business goals and strategies, as well as policies, of the newly established 
company. . . . responsible for hiring employees . . . will exercise wide latitude in 
drscretionary decision-making and be authorized to commit the corporation to 
contractual obligations. 
Also, a July 16,2001 employment agreement describes the beneficiary's U.S. duties as: 
Setting the goals and pollcies of the cornp&y. 
Hiring and Firing employees of the company. 
Establishing domestic and international marketing channel and building 
customer pool. 
Gathering up to date technology and procuring up to date manufacturing 
equipment for the parent company In Korea. 
On March 16, 2002, the director denied the petition concluding the beneficiary will not be 
employed m a primarily executive capacity. The director Found that the beneficiary did not 
primarily perform executive duties a preponderance of the time because the business has not 
expanded to the point where the services of a full-time president would be required. 
On appeal, counsel claims that the documentation demonstrates that the beneficiary's duties are 
primarily executive and claims the director failed to consider the reasonable needs of the 
petitioner's business, which does not require a large staff Counsel states: 
Marketing was the only "major component" in said start-up period. Beneficiary 
has "primarily directed" this major component or function of the organization 
since the approval of the initial L-1A petition. Based upon the fact that the 
petitioner has hired employees as stated in the business plan and directed an 
entire function of the company, the petitioner has demonstrated the beneficiary 
"primarily directs the management of the organization or a major component or 
function of the organization." 
In 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. !j 214.2(i)(3Xii). On review, the 
petitioner has provided a vague and nonspecific description of the beneficiary's duties that fails to 
esbblish what the beneficiary does on a day-to-day basis. For example, the petitioner states that 
the beneficiary's duties include setting the business goals, strategies, and policies of the company. 
The petitioner did not, however, define the beneficiary's goals, strategies or policies. In addition.