dismissed L-1A Case: Film Production

U.S. Department of Homeland Security 
20 Massachusetts Ave., N.W., Rm. 3000 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
Services 
File: EAC 07 048 51859 Office: VERMONT SERVICE CENTER Date: APR 0 3 2008 
Petition: 
 Petition for a Nonimrnigrant Worker Pursuant to Section 10 1 (a)(15)(L) of the Immigration 
and Nationality Act, 8 U.S.C. $ 1 10 1 (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 07 048 5 1859 
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 employ the beneficiary as its "film director 
cum producer" as an L- 1 A nonimmigrant intracompany transferee pursuant to section 10 1 (a)(15)(L) of the 
Immigration and Nationality Act (the Act), 8 U.S.C. tj 1101(a)(15)(L). The petitioner is a limited liability 
company organized under the laws of the State of New York and is allegedly in the multimedia entertainment 
business. 
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's duties are primarily those of an executive or a manager. 
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. tj 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 hindher 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 primary issue in the present matter is whether the beneficiary will be employed by the United States 
EAC 07 048 5 1859 
Page 3 
entity in a primarily managerial or executive capacity. 
Section 101(a)(44)(A) of the Act, 8 U.S.C. 8 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. $ 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 petitioner does not clarify in the initial petition whether the beneficiary will primarily perform managerial 
duties under section 10 1 (a)(44)(A) of the Act, or primarily executive duties under section 10 1 (a)(44)(B) of 
the Act. A petitioner may not claim that a beneficiary will be employed as a hybrid "executive/manager" and 
rely on partial sections of the two statutory definitions. If the petitioner is indeed representing the beneficiary 
as both an executive and a manager, it must establish that the beneficiary meets each of the four criteria set 
forth in the statutory definition for executive and the statutory definition for manager. 
The petitioner describes the beneficiary's proposed duties and position in the United States in a letter dated 
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November 2 1,2006 as follows: 
[The beneficiary's] position is a key managerial one within the structure of [the petitioner] 
because it will be the Director cum Producer who will oversee, at the executive level, the 
day-to-day operations of the Film division. [The beneficiary], in that capacity, will be in 
charge of financing, developing, producing, and distributing feature films. This job entails 
responsibility for overseeing pre-production in the areas of story development, studio pitches, 
arrangement of co-production deals, casting, and the assembly of a production team. [The 
beneficiary] will be responsible for communicating with all departments involved with the 
production of films during production. He will also supervise post-production processes like 
editing, effects, and creation of marketing elements. This position will offer a wide latitude 
of discretionary decision-mahng to establish organizational goals and policies. 
The petitioner asserts in the Form 1-129 that it currently employs four workers in the United States. 
On December 29, 2006, the director requested additional evidence. The director requested, inter alia, a 
complete description of the beneficiary's proposed position in the United States, complete descriptions of the 
petitioner's United States employees, and photographs of the United States operation. 
In response, the petitioner submitted a letter dated March 12, 2007, in which the beneficiary's proposed 
position is further described as follows: 
Offer creative vision for company's film production slate; create story concepts and develop 
story treatments for feature films in multiple genres; pitch projects and concepts to studios; 
arrange co-production deals with international Distnbutors. Seek out new writers, books and 
subjects for adaptation; supervise development of screenplays with Screenwriters using 
knowledge of story structure and dramatic construction. Assemble Production Team and 
Technical Crews for films; direct all aspects of film production and supervise creative 
Department Heads. Confer with Production Designer to ensure sets, scenic design and 
locations conform to overall creative vision. Confer with Director of Photography to achieve 
specific photographic or digital style and consider utilization of various capturing formats, 
film stocks, special effects and lighting styles. Work with Production Manager to create 
schedule of scenes to be filmed each day of shooting, grouping scenes together according to 
locations and cast of characters. Select Cast through audition process. Rehearse Cast and 
suggest options for character interpretation, using knowledge of acting, voice and movement 
to elicit best possible performance. Communicate creative vision to all departments including 
camera crew, scenery, props, wardrobe, grip and electncal. Supervise Post-Production 
process. Review dailies; collaborate with Editor to achieve a first assembly cut, rough cut 
and fine cut of film; supervise creation of sound effects; supervise creation of visual effects; 
create concepts for main and end titles; confer with Composer to achieve incidental musical 
score; supervise final sound mix and final color correction. Supervise creation of marketing 
elements for film including artwork, campaign strategy and creation of theatrical trailers. 
Work Week Average Hourly Breakdown: 
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Development Phase 
WritingIStory Development - 20 Hours 
General ManagementlOrganization - 10 Hours 
Investment StrategyIMeetings - 10 Hours 
Pre-Production Phase 
Department MeetingsProduction Planning - 20 Hours 
Casting - 15 Hours 
Creative Planning (Storyboarding, location scouting, etc.) - 20 Hours 
Production Phase 
On Location Directing - 70 Hours 
Post-Production Phase 
Supervising Picture Editing - 25 Hours 
Supervising Music - 10 Hours 
Department MeetingsPost-Production Planning - 15 Hours 
Marketing Phase 
Press and Marketing Design Supervision - 10 Hours 
Meetings with DistributorsISales Companies - 10 Hours 
Film MarketIFestival Attendance - 20 Hours 
The petitioner also described the duties of two of the petitioner's subordinate employees. Both the "music 
director" and the "musician and music arranger" are described as primarily performing tasks associated with 
music composition, arranging, performance, and marketing. 
On May 21, 2007, 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's duties are primarily those of an executive or a manager. 
Counsel argues that the petitioner, a film production company, hires "professionals and facilities on a 
project[-]by[-]project basis." Consequently, it is counsel's assertion that the beneficiary, as one who organizes 
and administers the production of films for the petitioner, supervises these contractors, who are either 
professionals or supervisors of their own subordinate employees, on a proj ect-by-proj ect basis. 
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. fj 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. As explained above, a petitioner 
may not claim that a beneficiary will be employed as a hybrid "executivelmanager~' and rely on partial 
sections of the two statutory definitions. 
In this matter, the petitioner's description of the beneficiary's job duties fails to establish that the beneficiary 
EAC 07 048 5 1859 
Page 6 
will act in a "managerial" or "executive" capacity. As correctly noted by the director, many of the duties 
ascribed to the beneficiary appear to be non-qualifying administrative or operational tasks which will not rise 
to the level of being managerial or executive in nature. For example, the petitioner asserts in the breakdown 
of duties that the beneficiary will engage in writing and story development, auditioning cast members, 
meeting with distributors, and attending film festivals. However, these appear to be non-qualifying tasks 
associated with the production and marketing of a film. Furthermore, while the petitioner provided a 
breakdown of the amount of time the beneficiary will devote to each of his duties, the breakdown is divided 
into development, pre-production, production, post-production, and marketing phases. Crucially, the 
petitioner did not disclose how much time the beneficiary will devote to each of these phases. For example, it 
is not clear whether the "development" phase will consume 80%, lo%, or 1% of the beneficiary's time. Since 
the majority of the beneficiary's duties in the development, pre-production, and marketing phases appear to be 
non-qualifying tasks necessary to the production of the film, it cannot be concluded that the beneficiary will 
primarily perform qualifying duties. 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 (Cornm. 1988). 
Moreover, the record is not persuasive in establishing that the petitioner employs a subordinate staff of 
employees or contractors dedicated to relieving the beneficiary of the need to perform the non-qualifying 
tasks inherent to his ascribed duties. While counsel argues on appeal that the petitioner employs 
l'professionals" on a project-by-project basis who will perform many of the tasks necessary to the production 
of the film, the petitioner fails to specifically describe these contractors or to explain how these workers will 
relieve the beneficiary of the need to perform the tasks inherent to his duties. For example, the petitioner 
asserts that the beneficiary will devote a majority of his time during the post-production phase to "supervising 
picture editing." However, the petitioner fails to explain what, exactly, the beneficiary will do in 
"supervising" this duty, or who he will supervise, if anyone. The fact that the petitioner has given the 
beneficiary a managerial or executive title and has prepared a vague job description which includes inflated 
job duties does not establish that the 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. Sava, 724 F. Supp. 1 103 (E.D.N.Y. 1989), aff'd, 905 F.2d 4 1 (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. 
Comm. 1972). 
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 a "music director" and a "musician and music 
arranger." However, these employees are not described as having supervisory or managerial responsibilities. 
To the contrary, these employees are described as performing the musical tasks necessary to the production of 
films. Furthermore, the petitioner has failed to establish that any of the claimed "professionals" or contractors 
hired on a project-by-project basis is a supervisor, managerial, or professional worker. The record is devoid 
of evidence specifically describing the duties or skills levels associated with any of these claimed contractors. 
EAC 07 048 5 1859 
Page 7 
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. 
Regardless, the supervision of independent contractors is not a qualifying managerial duty as a matter of law. 
The Act is quite clear that only the management of employees may be considered a qualieing managerial 
duty for purposes of this visa classification. Section 101(a)(44)(A)(ii) of the Act. 
In view of the above, the beneficiary would appear to be primarily a first-line supervisor of non-professional 
workers, the provider of actual services, or a combination of both. 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. Section 101(a)(44)(A)(iv) of the Act; see also Matter of Church 
Scientology International, 19 I&N Dec. at 604. Moreover, as the petitioner failed to establish the skills and 
education required to perform the duties of the subordinate employees or contractors, the petitioner has not 
established that the beneficiary will manage professional employees.' Therefore, the petitioner has not 
established that the beneficiary will be employed primarily in a managerial capacity.2 
1 
In evaluating whether the beneficiary will manage 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. fj 1 101(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 "professiontt 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). 
2 
While the petitioner has not clearly 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 
managertt 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 is managing 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 
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 function. See 8 C.F.R. tj 214.2(1)(3)(ii). In 
addition, the petitioner's description of the beneficiary's daily duties must demonstrate that the beneficiary 
manages the function rather than performs the duties 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, the record establishes that it is more likely than not the beneficiary will primarily be a first-line 
supervisor of non-professional employees and/or will perform non-qualifying operational or administrative 
tasks. Absent a clear and credible breakdown of the time spent by the beneficiary performing his duties, the 
AAO cannot determine what proportion of his duties will be managerial, nor can it deduce whether the 
beneficiary will primarily perform the duties of a function manager. See IKEA US, Inc. v. US. Dept. of 
Justice, 48 F. Supp. 2d 22,24 (D.D.C. 1999). 
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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 101(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 from 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. The job description provided for the 
beneficiary, coupled with the absence of evidence addressing his claimed subordinate staff, is so vague that 
the AAO cannot deduce what the beneficiary will do on a day-to-day basis. Moreover, as explained above, it 
appears more likely than not that the beneficiary will be primarily employed as a first-line supervisor 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 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. Systronics 
Corp. v. INS, 153 F. Supp. 2d 7,15 (D.D.C. 2001). 
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 failed to establish that the beneficiary was employed abroad 
for at least one continuous year in a position that was managerial or executive in nature. 8 C.F.R. $5 
2 14.2(1)(3)(iii)-(iv). 
Upon review, the record is not persuasive in establishing that the beneficiary was employed abroad in a 
managerial or executive capacity. The beneficiary's duties abroad are claimed to be "similar to the position he 
will fulfill in the United States." Therefore, for the same reasons outlined above, the petitioner has failed to 
establish that the beneficiary primarily performed qualifying duties abroad. Furthermore, the petitioner failed 
to describe the duties of the beneficiary's purported subordinates abroad, if any. Absent detailed descriptions 
of the duties of both the beneficiary and his purported subordinates, it is impossible for CIS to discern 
whether the beneficiary was "primarily" engaged in performing managerial or executive duties abroad. See 
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Page 9 
sections 101(a)(44)(A) and (B) of the Act; see also Matter of Church Scientology International, 19 I&N Dec. 
at 604. 
Accordingly, the petitioner has not established that the beneficiary was employed in a primarily managerial or 
executive capacity for one continuous year in the three years preceding the filing of the petition, and the 
petition may not be approved for this additional reason. 
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). 
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. Section 291 of the Act, 8 U.S.C. 9 1361. Here, that burden has not been met. Accordingly, the 
appeal will be dismissed. 
ORDER: The appeal is dismissed.