dismissed L-1A Case: Food Manufacturing

U.S. Department of Homeland Security 
20 Massachusetts Ave., N.W., Rm. 3000 
COPY 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
File: EAC 07 1 16 5 1745 Office: VERMONT SERVICE CENTER ~ate:!JuN 0 2 2008 
Petition: 
 Petition for a Nonimrnigrant Worker Pursuant to Section 101(a)(15)(L) of the Immigration and 
Nationality Act, 8 U.S.C. 5 1 101 (a)(15)(L) 
ON 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. 
.' Robert --2? P. Wiernann, 
/@lministrative Appeals Office 
EAC 07 116 51745 
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 appeal will be dismissed. 
The petitioner filed this nonimmigrant petition seelung to employ the beneficiary 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. 8 1101(a)(15)(L). The petitioner, an Oregon corporation, states that it manufactures noodles and soup 
for wholesale and retail distribution. It claims to be a subsidiary of Family Corporation, located in 
Korea. The petitioner seeks to employ the beneficiary as its for a three-year period. 
The director denied the petition, concluding that the petitioner failed to establish that the beneficiary would be 
employed by the U.S. entity 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 for the petitioner asserts that the petitioner 
submitted sufficient evidence to establish that the beneficiary will be employed in a managerial or executive 
capacity. Counsel contends that the director erred by placing undue emphasis on irrelevant factors such as the 
number of employees working for the U.S. company and the salaries paid to such employees. The petitioner 
submits additional evidence in support of the appeal. 
To establish eligibility for the L-1 nonirnmigrant visa classification, the petitioner must meet the criteria 
outlined in section 101(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 hs 
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 (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 withn 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 hidher 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. 
EAC 07 116 51745 
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The sole issue addressed by the director is whether the petitioner established that the beneficiary would be 
employed in the United States in a primarily managerial or executive capacity. 
Section 101(a)(44)(A) of the Act, 8 U.S.C. $ 1 101(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. 5 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 nonimrnigrant petition was filed on March 21, 2007. The petitioner stated that the beneficiary, as 
managing director, would "oversee production, facilities and personnel," for the twelve-person noodle 
manufacturing company. In a letter dated March 19, 2007, counsel for the petitioner stated that the 
beneficiary "will oversee and manage all operations of the Company in the U.S. including management, sales 
and production." 
The petitioner also submitted an organizational chart prepared by the foreign entity, which depicts the 
beneficiary's proposed position for the U.S. company. The chart shows that the beneficiary will oversee 
EAC 07 116 51745 
Page 4 
management, sales and production departments, but did not provide any additional information regarding the 
number and types of employees to be supervised. 
On May 10, 2007, the director issued a request for additional evidence, advising the petitioner that further 
documentation was needed to support its claim that the beneficiary will be employed in primarily managerial 
or executive capacity. Specifically, the director instructed the petitioner to submit the following: (1) an 
organizational chart for the U.S. entity which clearly identifies all of the beneficiary's subordinates; (2) a 
complete position description for the beneficiary's proposed subordinate employees in the United States, 
including a breakdown of the number of hours devoted to each of the subordinates' job duties on a weekly 
basis; and (3) evidence of wages paid to employees in the form of the company's 2005 federal income tax 
return, IRS Fonns W-2, Wage and Tax Statement, and payroll rosters. 
In a response dated August 2, 2007, the petitioner included the requested organizational chart for the US. 
company, which shows that the beneficiary will report to the company president and will be responsible for 
supervising an administrative manager and a manufacturing manager. The chart depicts two employees in the 
administrative department, and nine employees in the manufacturing department, who are responsible for 
processing, packaging and materials. The organizational chart also includes a "distribution" department which 
appears to include no manager or direct employees, but does list five companies who are assumed to be 
distributors of the petitioner's products. 
The petitioner provided a chart outlining the beneficiary's duties as "President in AbsentiaiManaging 
Director," and explained that the company's president spends most of his time in Korea. The petitioner 
described the beneficiary's duties in this regard as follows: 
Regarding distributors and retailers: Developing and expanding distributors and retailers; 
currently developing Seoul Trading, Inc. (5 hours per week) 
Sales; Managing distributors and retailers; marketing and PR (5 hours per week) 
Managing deliveries and inventories: Managing shipping and handling products; average 
inventories ($80,000 - $100,000) (3 hours per week) 
Managing maintenance of various facilities; maintenance of each process and facilities; 
inspecting machines and facilities and order repairs (5 hours per week) 
Weekly meeting (1 hour per week) 
The petitioner also submitted a separate chart labeled "Outline of Managerial Duties" in which it described 
the beneficiary's duties as follows: 
General management 
Supervising submanagers 
Managing products and inventories 
Managing and marketing distributors and retailers 
Managing maintenance of various facilities 
EAC 07 116 51745 
Page 5 
The petitioner indicated that the administrative manager performs the following duties: 
Planning and supervising general finance (1 0 hours) 
Managing wages for employees (1 hour) 
Order of purchasing materials and ingredients (2.5 hours) 
HR (hiring and providing commute for employees) 
PR (1 hour) 
Improving environment of facilities (2.5 hours) 
Supplies (5 hours) 
Meeting people regarding USDA requirements (2.5 hours) 
Managing products standards and requirements (2.5 hours) 
Managing process hygiene (5 hours) 
Managing Employees hygiene (2.5 hours) 
Weekly meeting (1 hour) 
Finally, the petitioner indicated that the manufacturing manager performs the following duties: 
Instructing and Supervising Processing (20 hours per week) 
Managing Retort treatment (5 hours) 
Fast freezing process (2.5 hours) 
Pouch Packaging (automatic) (5 hours) 
Carton packaging (1 hour) 
Pallet packaging (1 hour) 
Stocking materials in warehouse (1 hour) 
Managing deliveries of materials (1.5 hours) 
Planning order of materials and Order purchase (5 hours) 
Inspecting stoclng materials (1.5 hours) 
Weekly meeting (1 hour) 
The petitioner also submitted the requested copies of its IRS Forms W-2, Wage and Tax Statement, and 
payroll roster for 2005. The petitioner paid wages to a total of 21 employees in 2005, ten of which were 
employed by the company at the end of the year. Five of these employees appear on the petitioner's 
organizational chart submitted in August 2007. The record does not contain evidence of wages paid to the 
other employees listed on the organizational chart, although it is noted that the director specifically requested 
evidence of wages paid by the petitioner in 2005, rather than evidence from 2006 or 2007. 
The director denied the petition on October 1, 2007, concluding that the petitioner had failed to establish that 
the beneficiary would be employed in the United States in a primarily managerial or executive capacity. The 
director acknowledged the position descriptions and wage records submitted for the beneficiary's proposed 
subordinate employees, but concluded that the evidence failed to establish that either subordinate would is a 
bona fide manager or professional. The director also observed that the beneficiary's offered salary of $35,000 
is "incongruous with that of an employee who is actually managing other managers or professionals." 
The director further acknowledged that while the petitioner had indicated that the beneficiary would be 
performing a number of duties that would normally be associated with a manager or executive, the evidence 
was not persuasive in establishing that the beneficiary "will actually be carrying out these duties." The 
EAC 07 116 51745 
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director determined that the petitioner's small manufacturing company does not appear to require the services 
of a bona fide manager or executive on a fbll-time basis, and that the beneficiary would be engaged in the 
non-managerial, day-to-day operations of the business. 
On appeal, counsel for the petitioner objects to the denial of the petition, citing National Hand Tool Corp. v. 
Pasquarell, 889, F.2d. 1472, n. 5 (5th Cir. 1989) and Mars Jewelers, Inc. v. INS, 702 F. Fupp. 1570, 1573 
(N.D. Ga. 1988) in support of his claim that the statute was not intended to limit the definitions of manager or 
executive to persons who supervise a large number of persons or a large enterprise. Counsel also cites an 
unpublished AAO decision to support his claim that the number of employees supervised is not relevant in 
determining whether a beneficiary will be employed managerial or executive capacity. Counsel further argues 
the following: 
Given these court rulings, it does not seem relevant that the nature of the business is as a 
"small food manufacturing entity" and that there are only 12 employees. Therefore, the salary 
of the employees seems to have been the only "relevant" deciding factor as to whether they 
were managers. However, no where does the statute require the managers to be provided a 
certain salary level or that the salaries must be commensurate with other managers in similar 
companies or that salary in general is a determinindrelevant factor in deciding whether 
someone is a bona fide manager or maintains managerial capacity. 
Since the roles, duties and responsibilities of the managers and beneficiary were clearly 
demonstrated in the documents that were presented, a denial based on the salaries of the 
managers and the beneficiaries seems to be a misinterpretation of the law and the facts. 
In support of the appeal, the petitioner submits a letter dated October 15, 2007 from 
states that he is the president and owner of both the petitioning company and the foreign entity. - 
provides additional background information regarding why the beneficiary was selected for the U.S. position, 
and explains that his compensation level will be hi her than what is stated on Form 1-129. The petitioner also 
submits letters fi-om its manufacturing manager, e, and administrative manager,- 
. Mr. - explains that, notwithstanding his seemingly low salary, he supervises the manufacturing 
responsibilities of his company and directly oversees and supervises seven employees. He states that he and 
the administrative manager perform the "day-to-day operations" while the beneficiary will perform 
"supervisory/executive duties" and is not involved in the company's day-to-day manu 
thus creating a clear hierarchy and division of responsibility within the small company. 
similar explanation regarding her role as administrative manager, noting that her responsibilities are limited to 
day-to-day administrative duties and supervising two employees, and that the beneficiary will not be involved 
in the day-to-day administrative aspects of the company. 
Upon review, and for the reasons discussed herein, the petitioner has not established that the beneficiary will 
be employed by the United States entity in a managerial or executive capacity. However, upon review of the 
director's decision, the AAO finds that the reasons given for the denial are conclusory with few specific 
references to the evidence entered into the record. The AAO also concurs with counsel that the director's 
determination that the beneficiary's salary is "incongruous" with a managerial position is not supported by the 
statute and regulations, which contain no salary requirements for L-1 beneficiaries. Accordingly, the director's 
comment in this regard is withdrawn. 
EAC 07 116 51745 
Page 7 
The AAO maintains plenary power to review each appeal on a de novo basis. 5 U.S.C. 557(b) ("On appeal 
from or review of the initial decision, the agency has all the powers which it would have in making the initial 
decision except as it may limit the issues on notice or by rule."); see also, Janka 1). US. Dept. of Transp., 
NTSB, 925 F.2d 1147, 1149 (9th Cir. 1991). The AAO's de novo authority has been long recognized by the 
federal courts. See, e.g. Dor v. INS, 891 F.2d 997, 1002 n. 9 (2d Cir. 1989). Therefore, the AAO will address 
the petitioner's evidence and eligibility herein. 
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. 3 214.2(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 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 show that the beneficiary primarily performs these specified responsibilities and does not spend a 
majority of hls or her time on day-to-day functions. Champion World, Inc. v. INS, 940 F.2d 1533 (Table), 
1991 WL 144470 (9th Cir. July 30, 1991). Here, whlle the beneficiary would evidently exercise discretion 
over the business as its managing director, the petitioner has not established that his actual duties will be 
primarily managerial or executive in nature. 
The majority of the beneficiary's job description is too general to convey any understanding of what he will 
do on a day-to-day basis. The position description submitted with the initial petition consisted of counsel's 
statement that the beneficiary "will oversee and manage all operations of the Company in the U.S., including 
management, sales and production." 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), afd, 
905 F.2d 41 (2d. Cir. 1990). 
The lengthier position description submitted in response to the director's request for evidence suggested that 
the beneficiary's duties will include a combination of managerial or supervisory duties associated with 
oversight of the company, as well as a number of non-qualifying duties associated with the company's sales, 
marketing and distribution functions. For example, the petitioner stated that the beneficiary is responsible for 
"sales," "developing and expanding distributors and retailers," and "managing distributors and retailers," and 
noted that these duties includes "marketing and PR." However, based on the evidence submitted, the 
beneficiary would be solely responsible for all sales, marketing, public relations activities, and solely 
responsible for maintaining the company's relationships with the distributors and retailers who sell the 
petitioner's products. The petitioner has not indicated that any of the company's employees are involved in 
these activities in any capacity, thus it cannot be concluded that the beneficiary would be relieved from 
performing non-qualifying duties associated with the sales, marketing and distribution functions. 
Similarly, the petitioner indicated that the beneficiary will be charged with "managing maintenance of various 
facilities" and noted that this responsibility includes "inspecting machines and facilities" and ordering repairs. 
Again, none of the petitioner's other employees, based on the evidence submitted, are responsible for 
maintenance or inspection activities, and the petitioner is not explained how the beneficiary's proposed 
responsibilities in this regard would qualify as managerial in nature. Finally, the petitioner indicated that the 
beneficiary will be "managing deliveries and inventories7' and "managing shipping and handling products," 
EAC 07 116 51745 
Page 8 
yet the company does not claim to have any employees to perform non-qualifying tasks associated with these 
aspects of the petitioner's business, and it is reasonable to question whether the beneficiary will be performing 
managerial duties associated with these functions. As noted above, the petitioner has a "distribution" 
department with no employees. 
Overall, based on the petitioner's representations, the beneficiary's sales, distribution, inventory and delivery 
and maintenance tasks account for nearly half of his time, and these duties have not been shown to be 
managerial in nature. 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 Int'l., 19 I&N Dec. 593,604 (Comm. 1988). 
According to the petitioner, the remainder of the beneficiary's time will be devoted to "general management" 
and "supervising submanagers," but no further descriptions of the beneficiary's duties were provided, and the 
AAO will not speculate as to what managerial tasks might be encompassed by the beneficiary's responsibility 
for "general management." Reciting the beneficiary's vague job responsibilities or broadly-cast business 
objectives is not sufficient; the regulations require a detailed description of the beneficiary's daily job duties. 
The petitioner has failed to provide any detail or explanation of the beneficiary's managerial activities in the 
course of his daily routine. The actual duties themselves will 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). 
Based on the current record, the AAO is unable to determine whether the claimed managerial duties constitute 
the majority of the beneficiary's duties, or whether the beneficiary will primarily perform non-managerial 
operational duties associated with the company's sales, marketing and distribution hctions. The petitioner's 
description of the beneficiary's job duties does not establish what proportion of the beneficiary's duties is 
managerial in nature, and what proportion is actually non-managerial. See Republic of Transkei v. INS, 923 
F.2d 175, 177 (D.C. Cir. 1991). Overall, the beneficiary's job description alone falls significantly short of 
establishing that his duties will be primarily managerial or executive in nature. 
The statutory definition of "managerial capacity" allows for both "personnel managers" and "function 
managers." See section 101(a)(44)(A)(i) and (ii) of the Act, 8 U.S.C. 5 1101(a)(44)(A)(i) and (ii). Personnel 
managers are required to primarily supervise and control the work of other supervisory, professional, or 
managerial employees. Contrary to the common understanding of the word "manager," the statute plainly 
states that 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 
lOl(a)(44)(A)(iv) of the Act; 8 C.F.R. 4 214.2(1)(1)(ii)(B)(2). If a beneficiary directly supervises other 
employees, the beneficiary must also have the authority to hire and fire those employees, or recommend those 
actions, and take other personnel actions. 8 C.F.R. 3 214.2(1)(1)(ii)(B)(3). 
Here, the petitioner indicates that the beneficiary will supervise an administrative manager and a 
manufacturing manager, and that both of these employees supervise lower-level personnel. While the 
petitioner has not established that either of the beneficiary's subordinates is employed in a managerial or 
professional role, the record does demonstrate that the beneficiary's immediate subordinates are supervisors. 
However, the petitioner has not indicated whether the beneficiary has the authority to hire and fire employees 
or to recommend these and other personnel actions. Nor does the petitioner indicate how much of the 
beneficiary's time would be allocated to supervising these employees, and there is nothing in the record to 
EAC 07 116 51745 
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suggest that supervising a subordinate staff of supervisors would be the beneficiary's primary duty. As 
discussed above, the beneficiary will also be responsible for marketing, sales, distribution and maintenance 
activities and has no subordinate staff to relieve him from performing non-qualifying duties associated with 
these functions. The petitioner has not established that the beneficiary will be employed in a managerial 
capacity based on his supervision of supervisory, managerial or professional staff. 
Counsel cites National Hand Tool Corp. v. Pasquarell, 889 F.2d 1472, n.5 (5th Cir. 1989), and Mars 
Jewelers, Inc. v. INS, 702 F.Supp. 1570, 1573 (N.D. Ga. 1988), to stand for the proposition that the small size 
of a petitioner will not, by itself, undermine a finding that a beneficiary will act in a primarily managerial or 
executive capacity. First, the AAO notes that counsel has hrnished no evidence to establish that the facts of 
the instant petition are analogous to those in National Hand Tool Corp., where the Fifth Circuit Court of 
Appeals decided in favor of the legacy Immigration and Naturalization Service (INS), or Mars Jewelers, Inc., 
where the district court found in favor of the plaintiff. With respect to Mars Jewelers, the AAO is not bound 
to follow the published decision of a United States district court in matters arising within the same district. 
See Matter of K-S-, 20 I&N Dec. 715 (BIA 1993). Although the reasoning underlying a district judge's 
decision will be given due consideration when it is properly before the AAO, the analysis does not have to be 
followed as a matter of law. Id. at 719. 
In both National Hand Tool Corp. and Mars Jewelers, Inc., the courts emphasized that the former INS should 
not place undue emphasis on the size of a petitioner's business operations in its review of an alien's claimed 
managerial or executive capacity. The AAO has long interpreted the regulations and statute to prohibit 
discrimination against small or medium-size businesses. However, consistent with both the statute and the 
holding of National Hand Tool Corp., the AAO has required the petitioner to establish that the beneficiary's 
position consists of primarily managerial or executive duties and that the petitioner will have sufficient 
personnel to relieve the beneficiary from performing operational andlor administrative tasks. Like the court 
in National Hand Tool Corp., we emphasize that our holding is based on the conclusion that the beneficiary is 
not primarily performing managerial duties; our decision does not rest on the size of the petitioning entity. 
889 F.2d at 1472, n.5. 
As required by section 101(a)(44)(C) of the Act, if staffing levels are used as a factor in determining whether 
an individual is acting in a managerial or executive capacity, CIS must take into account the reasonable needs 
of the organization, in light of the overall purpose and stage of development of the organization. 
At the time of filing, the petitioner was a 15-year-old manufacturing company that claimed to have a gross 
annual income of $950,000. The firm company employs a president who is typically outside the United 
States, an administrative manager, a manufacturing manager, and lower-level employees engaged in 
administrative, finance and manufacturing activities. The petitioner did not submit evidence that it employed 
any subordinate staff members who would perform the actual day-to-day, non-managerial operations of the 
company with respect to its inventory, distribution, sales or marketing functions. 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). Regardless, the reasonable 
needs of the petitioner serve only as a factor in evaluating the lack of staff in the context of reviewing the 
claimed managerial or executive duties. The petitioner must still establish that the beneficiary is to be 
employed in the United States in a primarily managerial or executive capacity, pursuant to sections 
EAC 07 116 51745 
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101(a)(44)(A) and (B) or the Act. As discussed above, the petitioner has not established this essential 
element of eligibility. 
Counsel further refers to unpublished decisions in which the AAO determined that the beneficiary met the 
requirements of serving in a managerial and executive capacity for L-1 classification even though he was the 
sole employee or supervised few employees. Counsel has furnished no evidence to establish that the facts of 
the instant petition are analogous to those in the unpublished decisions. While 8 C.F.R. 5 103.3(c) provides 
that AAO precedent decisions are binding on all CIS employees in the administration of the Act, unpublished 
decisions are not similarly binding. 
The AAO does not dispute that small companies require leaders or individuals who plan, formulate, direct, 
manage, oversee and coordinate activities; however the petitioner in this matter has not indicated that the 
beneficiary would spend the majority of his time performing duties at the managerial or executive level. The 
petitioner must establish with specificity that the beneficiary's duties comprise primarily managerial or 
executive responsibilities and not routine operational or administrative tasks. The fact that the beneficiary 
manages a business, regardless of its size, does not necessarily establish eligibility for classification as an 
intracompany transferee in an executive capacity within the meaning of section 10 1 (a)(15)(L) of the Act. See 
52 Fed. Reg. 5738, 5739 (Feb. 26, 1987). Here, the record fails to establish that the majority of the 
beneficiary's duties will be primarily directing the management of the organization or a component or 
knction of the organization. 
Based on the foregoing discussion, the petitioner has not established that the beneficiary would be employed 
in a primarily managerial or executive capacity. Accordingly, the appeal will be dismissed. 
Beyond the decision of the director, the record as presently constituted does not establish that the petitioner 
has a qualifying relationship with its claimed parent company. To establish a "qualifying relationship" under 
the Act and the regulations, the petitioner must show that the beneficiary's foreign employer and the proposed 
U.S. employer are the same employer (i.e. one entity with "branch" offices), or related as a "parent and 
subsidiary" or as "affiliates." See generally section 101 (a)(] 5)(L) of the Act; 8 C.F.R. 5 214.2(1). 
The evidence of record is entirely confused regarding the claimed qualifying relationship between the 
petitioner and the overseas entity. The petitioner indicated on Form 1-129 that it is a wholly-owned subsidiary 
of 
 Family Corporation located in Korea. In support of the petition, the petitioner submitted a 
letter dated February 1, 2007 from its accountant, who indicated that "the shareholders and their ownership 
percentages of [the petitioner] are exactly the same as those of its parent corporation in Korea." This 
statement suggests that the two companies have an affiliate relationship based on common ownership by the 
same group of individuals, rather than a parent-subsidiary relationship, as claimed on Form 1-129. According 
to the petitioner's 20 
 Tax Return, Schedule E, the petitioning 
company is owned by 
 , and "minority shareholders," and no one 
shareholder has a 50 
 On appeal, m states in his 
letter dated October 15, 2007 that he is the "actual owner" of both companies. 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 ofHo, 19 I&N Dec. 582, 591-92 (BIA 1988). The petitioner 
has failed to provide any documentary evidence of the ownership and control of either company and it thus it 
EAC 07 116 51745 
Page 11 
cannot be concluded that the two entities have a qualifying relationship. For this additional reason, the 
petition cannot 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). 
The petition will be denied and the appeal dismissed for the above stated reasons, with each considered as an 
independent and alternative basis for the decision. 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. 
ORDER: The appeal is dismissed.