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U.S. Department of Homeland Security
20 Massachusetts Ave., N.W., Rm. A3000
Washington, DC 20529
u.S. Citizenship
and Immigration
Services
D-I
File: SRC 05 179 50468 Office: TEXAS SERVICE CENTER Date: MJO 0 6 2007
IN RE: Petitioner:
Beneficiary:
Petition: Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(l5)(L) of the Immigration
and Nationality Act, 8 U.S.C. § 1 I Ol(a)(l5)(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.
Rc:~
Administrative Appeals Office
www.uscis.gov
SRC 05 179 50468
Page 2
DISCUSSION: The Director, Texas 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 extend the employment of its president/general
manager as an L-1A nonimmigrant intracompany transferee pursuant to section 101(a)(l5)(L) of the
Immigration and Nationality Act (the Act), 8 U.S.C. § 1101(a)(l5)(L). The petitioner is a corporation
organized under the laws of the State of Texas and is allegedly engaged in the business of manufacturing and
selling instant food mixes, sauces, meats, and other food items. The beneficiary was initially granted a three­
year period of stay, and the petitioner now seeks to extend the beneficiary's stay for an additional three years.'
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 function manager. In support of
this assertion, the petitioner submits a brief and additional evidence.
To establish eligibility for the L-1 nonimmigrant visa classification, the petitioner must meet the criteria
outlined in section 101(a)(l5)(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. § 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
'According to the corporate records of the State of Texas, the petitioner's status in Texas is not in good
standing. Therefore, as the State of Texas has forfeited the petitioner's corporate privileges, the petitioner's
continued eligibility for the benefit sought is called into question.
SRC 05 179 50468
Page 3
education, trammg, and employment qualifies him/her 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
entity in a primarily managerial or executive capacity.
Section 101(a)(44)(A) of the Act, 8 U.S.C. § 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 is claiming to be primarily
engaged in managerial duties under section 101(a)(44)(A) of the Act, or primarily executive duties under
section 101(a)(44)(B) of the Act. On appeal, counsel asserts that the beneficiary will be employed as either
an executive or a function manager. Therefore, the AAO will consider both classifications.
SRC 05 179 50468
Page 4
The petitioner described the beneficiary's job duties in the United States in the Form 1-129 as follows:
From 04/2003 to Present, [the beneficiary] has been serving as the President/General
Manager of [the petitioner]. In this capacity, he has been instrumental in establishing the
U.S. subsidiary and overseeing the expansion of [the foreign entity's] market for its
[products] in the United States. He is responsible for developing, implementing and
executing business strategies for the company. He is also responsible for the creation,
implementation and monitoring of sales and marketing operations for the company. [The
beneficiary] works closely with [a third party company] in Pasadena, Texas, to produce the
[petitioner's] new [meat products]. Over 30,000 pounds of beef, 60,000 pounds of pork, and
30,000 pounds of chicken have been produced for sales and distribution of [the petitioner's
products]. [The beneficiary] continues to conduct weekly video conferences with officers
and managers of the parent company in the Philippines. Together, they coordinate the global
sales of [the foreign entity's] products throughout the world.
Counsel provided a similar description of the beneficiary's duties in his letter dated June 8, 2005. However,
counsel further explained that the beneficiary "is responsible for developing, implementing and executing
business goals."
The petitioner also provided wage reports indicating that the petitioner has two employees, the beneficiary
and one other employee. The petitioner did not provide a position description for the second employee.
On July 14, 2005, the director requested additional evidence. The director requested, inter alia, additional tax
and wage documentation and information regarding any independent contractors employed by the petitioner.
In response, counsel provided a letter dated September 19, 2005 in which he explains that the petitioner does
not employ contractors. Counsel explains further that the petitioner has "indirect employees" in that the two
companies which allegedly manufacture the petitioner's products in the United States have hired additional
staff to fulfill the petitioner's orders. Counsel also asserts that the beneficiary is employed as either an
executive or a "functional manager." In support, counsel cites the unpublished opinion Matter ofIrish Dairy
Board, A28-845-421 (AAO Nov. 16, 1989).
On November 17, 2005, 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 to the petitioner asserts that the director erred and that the beneficiary's duties are
primarily those of an executive or a function manager. Counsel argues as follows:
[The beneficiary] functions in an executive capacity with [the petitioner]. [The beneficiary]
directs the management of the U.S. operation, in accordance with the principles set forth by
the [parent company]. [The petitioner's] unique business concept involves important
partnerships with [local meat production and spice production companies], and [the
beneficiary] deals with executives of those companies on an executive level. It is not [the
beneficiary] who produces the [petitioner's frozen meats and spices]; he directs the
production of those products in conjunction with the two companies. The employees of [the
SRC 05 179 50468
Page 5
local meat production and spice production companies] are [the petitioner's] "indirect
employees" because they were hired by these companies to work solely on [the petitioner's]
meat and spice products, respectively. [The beneficiary] oversees the production of the [meat
and spice products]. The L-IA petition contained support letters from [the local meat
production and spice production companies]. Each company hired more U.S. workers as a
result of the high volume generated by [the petitioner]. In essence, [the beneficiary] directs
the major function of the organization.
Counsel further argues that the director failed to consider all of the evidence presented; that the Request for
Evidence contained "confusing mistakes" making it difficult to understand; and that the director's reliance on
Systronics Corp. v. INS, 153 F. Supp. 2d 7 (D.D.C. 2001), was inappropriate because the petitioner has
established that it is not a mere "shell" company.
Upon review, the petitioner'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. § 214.2(l)(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's description of the beneficiary's job duties has failed to establish that the beneficiary will act
in a "managerial" capacity. In support of its petition, the petitioner has provided a vague and nonspecific
description of the beneficiary's duties that fails to demonstrate what the beneficiary does on a day-to-day
basis. For example, the petitioner states that the beneficiary develops, implements and executes business
strategies and goals as well as creates, implements and monitors sales and marketing operations. However,
the petitioner defines neither these strategies and goals nor what the beneficiary does in creating,
implementing, and monitoring sales and marketing operations. The fact that the petitioner has given the
beneficiary a managerial title, that the beneficiary may be the sole managerial employee, and that the
petitioner has prepared a vague job description which includes lofty duties does not establish that the
beneficiary is actually performing managerial 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. 1103 (E.D.N.Y.
1989), aff'd, 905 F.2d 41 (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).
Likewise, the petitioner did not provide a breakdown of how much time the beneficiary devotes to.the duties
ascribed to him. This is particularly important in this matter because some of the duties listed by the
petitioner appear to be non-qualifying administrative or operational tasks. For example, the petitioner states
that the beneficiary "implements" the petitioner's marketing and sales operations. Marketing duties are
administrative or operational tasks essential to the operation of a business and do not rise to the level of being
managerial or executive in nature when performed by the beneficiary. As the petitioner has not established
how much time the beneficiary devotes to such non-qualifying tasks, or explained who is performing the non­
qualifying tasks inherent in the marketing duties if not the beneficiary, it cannot be confirmed that he is
"primarily" employed as a manager. An employee who "primarily" performs the tasks necessary to produce a
SRC 05 179 50468
Page 6
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).
Finally, the petitioner has not established that it employs a subordinate staff which could relieve the
beneficiary of the need to perform non-qualifying tasks inherent to the petitioner's business. As indicated
above, the petitioner asserts that the beneficiary supervises one subordinate employee. However, the
petitioner never explains what, exactly, this single subordinate employee does on a day-by-day basis. The
record is devoid of any evidence that this employee relieves the beneficiary of the need to perform any of the
non-qualifying duties which are inherent to the business, e.g., record keeping, processing accounts payable
and accounts receivable, marketing, and sales. Therefore, it cannot be confirmed that this employee will
relieve the beneficiary from having to perform such non-qualifying tasks.
Moreover, the petitioner has not established that the beneficiary manages an essential function of the
organization. The term "function manager" 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. § 214.2(l)(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.
Essentially, counsel argues that, since the beneficiary does not actually manufacture the petitioner's food
products but, instead, "manages" the production of these products through contracts with third parties who, in
tum, have their own employees, the beneficiary should be construed to be a "functional manager." However,
as explained above, the petitioner's vague job description fails to document what proportion of the
beneficiary's duties would be managerial, if any, and what proportion would be non-managerial, i.e.,
marketing, sales, and office administration. Moreover, the petitioner never defines what, exactly, the
beneficiary must do in order to "manage" the production of the food products or how much time he devotes to
this duty. 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 would be managerial, nor can it deduce whether the
beneficiary is primarily performing 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)? Therefore, the petitioner has not established that the
2The petitioner has also failed to establish that the beneficiary will supervise and control the work of other
supervisory, managerial, or professional employees. As explained above, the beneficiary appears to supervise
one employee. As the petitioner has failed to reveal the job duties, skill level, or educational background of
the subordinate employee, the petitioner has not established that this employee is primarily engaged in
performing supervisory or managerial duties or is a "professional." In view of the above, the beneficiary
would appear to be primarily a first-line supervisor of a non-professional employee, the provider of actual
services, or a combination of both. A managerial employee must have authority over day-to-day operations
SRC 05 179 50468
Page 7
beneficiary will be employed primarily in a managerial capacity.
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 be acting
primarily in an executive capacity. The job description provided for the beneficiary is so vague that the AAO
cannot deduce what the beneficiary will do on a day-to-day basis. Moreover, the petitioner has not
established what the beneficiary does to "manage" the production of its products nor did it explain who,
exactly, performs the non-qualifying administrative and operational tasks inherent to the petitioner's business.
Therefore, the petitioner has not established that the beneficiary will be employed primarily in an executive
capacity.
It is noted that counsel to the petitioner cited the unpublished opinion, Matter ofIrish Dairy Board, A28-845­
421 (AAO Nov. 16, 1989), in support of his contention that the beneficiary is primarily employed as an
executive. In that decision, the AAO recognized that the sole employee could be employed primarily as a
manager or executive provided he or she is primarily performing executive or managerial duties. However,
counsel's reliance on this decision is misplaced. Counsel has furnished no evidence to establish that the facts
of the instant petition are analogous to those in the unpublished decision. While 8 C.F.R. § 103.3(c) provides
that AAO precedent decisions are binding on all Citizenship and Immigration Services (CIS) employees in
the administration of the Act, unpublished decisions are not similarly binding. Also, as explained above, the
petitioner has not established that the beneficiary will be primarily employed in an executive or managerial
capacity. This is paramount to the analysis, and a beneficiary may not be classified as a manager or an
executive if he or she is not primarily performing managerial or executive duties regardless of the number of
people employed by the petitioner. Therefore , as the petitioner has not established this essential element, the
decision in Matter ofIrish Dairy Board would be irrelevant even if binding or analogous.
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
beyond the level normally vested in a first-line supervisor , unless the supervised employees are professionals.
101(a)(44)(A)(iv) of the Act; see also Matter of Church Scientology International, 19 I&N Dec. at 604.
SRC 05 179 50468
Page 8
in a regular and continuous manner. See, e.g., Systronics Corp. v. INS, 153 F. Supp. 2d 7, 15 (D.D.C. 2001).3
Accordingly, in this matter, the petitioner has failed to establish that the beneficiary will be primarily
performing managerial or executive duties, and the petition may not be approved for that reason."
The initial approval of an L-1A petition does not preclude CIS from denying an extension of the original visa
based on a reassessment of petitioner's qualifications. See Texas A&M Univ., 99 Fed. Appx. 556, 2004 WL
1240482 (5th Cir. 2004). Despite any number of previously approved petitions, CIS does not have any
authority to confer an immigration benefit when the petitioner fails to meet its burden of proof in a subsequent
petition. See section 291 of the Act, 8 U.S.C. § 1361.
In visa petition proceedings, the burden of proving eligibility for the benefit sought remains entirely with the
petitioner. Section 291 of the Act. Here, that burden has not been met. Accordingly, the appeal will be
dismissed.
ORDER: The appeal is dismissed.
3While counsel asserts on appeal that the decision in Systronics Corp. is not relevant to the current petition
because the petitioner has established that it is not a mere "shell" company, the reasoning in Systronics Corp.
is nevertheless relevant, and both the director's and the AAO's reliance on this decision is appropriate. This
decision confirms, inter alia, that a petitioner's small personnel size and the absence of employees who would
perform the non-managerial or non-executive operations of the company are both relevant factors in
adjudicating petitions seeking to classify a beneficiary as a manager or executive. As explained above, the
petitioner's vague job descriptions combined with the absence of employees who would perform the non­
managerial or non-executive operations of the company were used as factors in adjudicating the instant
petition.
4It is noted that counsel argues on appeal that the director's Request for Evidence contained "confusing
mistakes" which made it "difficult to understand the issues that [the director] had in mind." Specifically,
counsel refers to the director's request for an explanation as to why the petitioner checked the "new office"
box in the Form 1-129 when the petitioner claimed to have been established in 1972. Counsel asserts that this
request is confusing because the petitioner did not check the "new office" box and claims to have been
established in 1999, not in 1972. In reviewing the Request for Evidence, the AAO acknowledges that the
director's request does not seem to be entirely relevant to the current petition. That being said, counsel clearly
explains this in its response to the Request for Evidence, and the director did not use the petitioner's response
to this query as a basis to deny the petition. Moreover, counsel does not allege on appeal that the director's
request prejudiced the adjudication of the petition in any material way. Regardless, the director's
inappropriate request was, at most, harmless error.