dismissed L-1A Case: Freight Forwarding

U.S. Department of Homeland Security 
20 Massachusetts Ave., N.W., Rm. A3042 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
Services 
File: SRC 04 008 52378 Office: TEXAS SERVICE CENTER Date: 
Petition: Petition for a Nonirnmigrant Worker Pursuant to Section 101(a)(15)(L) of the Immigration 
and Nationality Act, 8 U.S.C. $ 1101(a)(15)(L) 
IN BEHALF OF PETITIONER: 
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. 
1 
---..I------ 
l'/("'q/-- 
I kobert P. Wiernann, ~irkcthr 
Administrative Appeals Office 
n 
SRC 04 008 52378 
Page 2 
DISCUSSION: The Director, Texas Service Center, denied the petition for a nonirnmigrant visa. The matter 
is now before the Administrative Appeals Office (AAO) on appeal. The AAO will dismiss the appeal. 
The petitioner filed this nonimmigrant petition seeking to extend the employment of its general manager 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. 5 1101(a)(15)(L). The petitioner is a corporation organized in the State of 
rily engaged in freight forwarding. The petitioner claims that it is the subsidiary om 
cated in Cali, Colombia. The beneficiary was initially granted a three-year period of stay 
in the United States 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 would 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 for the petitioner asserts that the director 
erred in her finding that the beneficiary is not serving in a managerial capacity and contends that the petitioner 
has met its burden of proof in establishing the beneficiary's eligibility for the benefit sought. In support of 
this assertion, counsel submits additional evidence. 
To establish eligibility for the L-1 nonimmigrant 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 his 
or her services to the same employer or a subsidiary or affiliate thereof in a managerial, executive, or 
specialized knowledge capacity. 
The regulation at 8 C.F.R. 5 214.2(1)(3) states that an individual petition filed on Form 1-129 shall be 
accompanied by: 
(i) Evidence that the petitioner and the organization which employed or will employ the 
alien are qualifying organizations as defined in paragraph (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 hirnlher to perform the intended 
SRC 04 008 52378 
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services in the United States; however, the work in the United States need not be the 
same work which the alien performed abroad. 
At 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. 3 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. 3 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. 
In a letter dated October 6, 2003, submitted with the initial petition, the petitioner's president describes the 
beneficiary's job duties as follows: 
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As a General Manager his services were required to institute star-up [sic] operations and 
business plan of our newly established U.S. subsidiary. It is critical to the success of our 
business plan that [the beneficiary] has the opportunity to establish the goals and standards of 
our U.S. subsidiary corporation Pan Express, Inc., in terms of strategic associations to create 
internal procedures and select qualified managerial and non-managerial personnel to 
coordinate the day-to-day operations of the business. 
The position of General Manger of our U.S. subsidiary corporation, Pan Express, Inc., is a 
key position because [the beneficiary] is responsible for establishment of the standards of the 
corporation and perform [sic] a managerial function within the organization, direct and 
coordinate the corporate policies for our subsidiary company in the U.S., he also establishes 
the goals and policies of the company in all areas and exercises wide latitude with regard to 
discretionary decision. He devotes one hundred (100%) percent of his time to managerial 
duties. 
On Form 1-129, the petitioner indicated that it has four employees. The petitioner also submitted an 
organizational chart which depicts the beneficiary as supervising an operations manager who in turn 
supervises a "supervisor." The chart shows that the beneficiary reports to the petitioner's president. 
On October 21, 2003, CIS issued a notice of intent to deny the petition and requested additional evidence 
from the petitioner. Specifically, the petitioner was asked to provide information regarding the duties and 
educational background of all of its other employees, if any. The petitioner was also requested to explain how 
the beneficiary would not engage in the day-to-day operations of the business. CIS noted that the petitioner 
must establish that the beneficiary will primarily be engaged in managerial or executive duties. 
In response, the petitioner submitted an organizational chart, which includes a secretary position not included 
organizational chart also depicts five employees of a different 
who also ultimately report to the petitioner's president. These 
employees include a customs broker, financial manager, operations manager, import manager and export 
manager, as well as a secretary who is shown to report to both compa 
that the beneficiary directly or indirectly supervises any employees of 
In addition to the organizational chart, the petitioner's president submitted a letter dated November 17, 2003, 
which identifies three other employees and their educational backgrounds. The duties of the employees were 
described as follows: 
Operations Manager: Inspects premises of assigned area stores to ensure that adequate 
security exists and that physical facilities comply with safety and environmental codes and 
ordinances. Reviews operational records and reports, provide quote to customer, negotiates 
with clients. In charge of coordinating and supervise local transport in Miami such as: Bill of 
lading, subcontractor transports. Submit the reports required to effectively manager [sic] the 
research function. Supervised by the General Manager. Background: 15 years of experience 
in the Managerial fields. 
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Supervisor - Supervise and responsible for receiving merchandise loads in warehouse, report 
shipment conditions, deliver shipment to each land transport co. Background: 16 years of 
experience in the field of Administration. 
Secretary - Perform secretarial duties such as: schedules appointments, gives information to 
callers, take dictation, relieves officials of clerical work and minor administrative and 
business detail. Compiles and maintains customer lists, records receipts. Background: 2 years 
of experience in the secretarial field. 
In response to CIS'S request that the petitioner explain how the beneficiary will not engage in the day-to-day 
operations of the business, the petitioner submitted the following statement regarding the beneficiary's duties: 
neficiary] is acting as liaison between 
Vand upervising other managers and professiona s. Responsible for -- ->-- 
coordination and direction of activities and operations of the corporation. Responsible for 
implementing administrative and operational policies and procedures. Direct expansion of 
U.S. operations including devise plans. Coordinate with managers of other export and import 
departments to satisfy customer specifications. Coordinate Logistics support functions. 
Kelly Freight Systems Inc. is an [sic] U.S. Corporation engaged in freight forwarding and 
customs brokers activities. 
[The petitioner] is a subsidiary U.S. Corporation in charge of Logistics and import and export 
transportation in U.S. and Latinamerica [sic]. 
On December 3, 2003, the director denied the petition. The director determined that the petitioner had failed 
to establish that the beneficiary was primarily performing in a managerial or executive capacity at the time of 
filing. The director specifically noted that the beneficiary was not managing other professionals or managers 
and that, based on the current structure of the company, the record indicates that the beneficiary would be 
engaged in the day to day business activities of the company. 
On appeal, counsel for the petitioner asserts that the petitioner submitted sufficient evidence to establish that 
the beneficiary supervises professionals, referring to the petitioner's letter dated November 17, 2003. Counsel 
also resubmits the organizational chart presented in response to CIS'S notice of intent to deny the petition. On 
appeal, counsel asserts that the beneficiary supervises the employees of both the petitioner and 
ncluding an import manager, export manager, two operations managers and a supervisor, and 
submits the resumes of four of these employees. On appeal, the petitioner submits a letter from its president 
which states that the petitioner is engaged in logistics and import and export transportation in the U.S. and 
Latin America, which "works in connection with' , a company engaged in freight 
forwarding and customs broker activities. The le n for the beneficiary which is 
nearly identical to those previously submitted, although the petitioner has added that the beneficiary 
"supervises and controls the work and coordinates with the Import Manager, Export Manager, Operation 
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Manager, Supervisor and coordinates Logistics support functions of the corporation and he has the authority 
to hire and fire personnel." 
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. 
2142()(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. However, rather than providing a specific description of the beneficiary's duties, the petitioner, 
in its letters dated October 6, November 17 and December 15, 2003, has generally paraphrased the statutory 
definition of executive capacity. See section 101(a)(44)(A) of the Act, 8 U.S.C. 3 1101(a)(44)(A). For 
instance, the petitioner depicted the beneficiary as "establishing the goals and policies of the company in all 
areas" and "exercising wide latitude with regard to discretionary decision." However, conclusory assertions 
regarding the beneficiary's employment capacity are not sufficient to meet the petitioner's burden of proof. 
Merely repeating the language of the statute or regulations does not satisfy the petitioner's burden of proof. 
Fedin Bros. Co. Ltd. v. Sava, 724 F. Supp. 1103, 1108 (E.D.N.Y. 1989), afd, 905 F. 2d 41 (2d. Cir. 1990); 
Avyr Associates Znc. v. Meissner, 1997 WL 188942 at *5 (S.D.N.Y.). 
Furthermore, the AAO notes that the petitioner also employs a president, to whom the beneficiary, as general 
manager, must report. Most of the duties assigned to the beneficiary appear to be those of an executive who 
occupies the highest position within an organization. CIS' notice of intent to deny requested that the petitioner 
provide a description of the duties of all of its employees; however, the petitioner did not include a 
description of the president's duties in its response. Accordingly, the AAO cannot determine whether the 
described duties are credible, or whether the petitioner has supplemented the beneficiary's job description 
with duties that are actually performed by its president. Doubt case on any aspect of the petitioner's proof 
may, of course, lead to a reevaluation of the reliability and sufficiency of the remaining evidence offered in 
support of the visa petition. Matter ofHo, 19 I&N Dec. 582, 591 (BIA 1988). 
The other duties listed in the petitioner's letters are too broad and nonspecific to convey an understanding of 
the beneficiary's proposed daily responsibilities. For instance, the beneficiary is described as being 
"responsible for coordination, direction and operations of activities of the corporation" and "directing 
expansion of US corporation operations including devise plans," however, the petitioner has not provided any 
concrete, quantifiable examples of what specific duties are involved in "direction and operations of activities" 
or any specific plans devised by the beneficiary. Going on record without supporting documentary evidence is 
not sufficient for purposes of meeting the burden of proof in these proceedings. Matter of SofSici, 22 I&N 
Dec. 158, 165 (Comrn. 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Cornm. 
1972)). 
Additionally, specifics are 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, supra. In this case, the petitioner has not even consistently 
described its business activities, which were listed as freight forwarding and customs brokering on the initial 
petition and on the petitioner's 2002 Form 1120, and subsequently changed to import, export and 
transportation in the petitioner's response to CIS' notice of intent to deny. On appeal, counsel asserts the 
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petitioner is a freight forwarder and the petitioner indicates that it is engaged in logistics, import and export 
transportation. These inconsistencies further obscure the beneficiary's already vague job description, making 
it impossible to even speculate as to what his responsibilities are on a daily basis. 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 of Ho, supra. 
Moreover, contrary to counsel's assertions, the petitioner has not demonstrated that the beneficiary will 
primarily supervise a subordinate staff of professional, managerial or supervisory personnel who can relieve 
him from performing nonqualifying duties. See section 101(a)(44)(A)(ii) of the Act. In particular, section 
101(a)(32) of the Act, 8 U.S.C. 3 1101(a)(32), states, "[tlhe term profession shall include but not be limited to 
architects, engineers, lawyers, physicians, surgeons, and teachers in elementary or secondary schools, 
colleges, academics or seminaries." The term "profession" contqnplates 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 
a least baccalaureate level, which is a realistic prerequisite to entry into the particular field of endeavor. 
Matter of Sea, 19 I&N Dec. 817 (Cornm. 1988); Matter of Ling, 13 I&N Dec. 35 (R.C. 1968); Matter of Shin, 
11 I&N Dec. 686 (D.D. 1966). 
Before turning to the question of whether the beneficiary will manage a staff of professionals, the AAO must 
first determine who the beneficiary will actually supervise. The petitioner claimed that it had four employees 
at the time of filing, and the initial organizational chart submitted in October 2003 depicts the company 
president, the beneficiary, an operations manager and a "supervisor." The petitioner's June 30, 2003 IRS 
Form 941, Employer's Quarterly Federal Tax Return indicates that the company had three employees at the 
end of the second quarter of 2003, but does not identify them by name. In its response to the notice of intent 
to deny the petition, the petitioner notes for the first time that the 
beneficiary liaises between the petitioner an and "supervises other managers and 
petitioner states that the beneficiary actually supervises and controls the work 
ogistics manager, export manager and operations manager, as well as the 
petitioner's operations manager and supervisor. However, the petitioner submits the same organizational 
chart, which shows no reporting lines between the beneficiary and the employees of the other organization. 
Although both companies appear to have the same president, there is no documentary evidence to support the 
petitioner's claim on appeal that the beneficiary supervises the staff of the related company. Going on record 
without supporting documentary evidence is not sufficient for purposes of meeting the burden of proof in 
these proceedings. Matter of SofSlci, 22 I&N Dec. at 165. Furthermore, on appeal, a petitioner cannot offer a 
new position to the beneficiary, or materially change a position's title, its level of authority within the 
organizational hierarchy, or the associated job responsibilities. The petitioner must establish that the position 
offered to the beneficiary when the petition was filed merits classification as a managerial or executive 
position. Matter of Michelin Tire Corp., 17 I&N Dec. 248, 249 (Reg. Cornrn. 1978). A petitioner may not 
make material changes to a petition in an effort to make a deficient petition confirm to CIS requirements. See 
Matter of Zzummi, 22 I&N Dec. 169, 176 (Assoc. Cornm. 1998). 
Accordingly, based upon review of the evidence provided, the AAO finds that the beneficiary supervised only 
two employees at the time of filing: the operations manager and the supervisor, neither of who have a 
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bachelor's degree. Based upon a review of the duties performed by these employees, it does not appear that 
either performs tasks that would require the attainment of at least a baccalaureate degree. Matter of Sea, 19 
I&N Dec. 87 (Comm. 1988); Matter of Ling, 13 I&N Dec. 35 (R.C. 1968); Matter of Shin, 11 I&N Dec. 686 
(D.D. 1966). In addition, notwithstanding the job titles assigned to the employees, the record does not 
establish that either employee was acting in a managerial or supervisory capacity. Although the organizational 
chart shows the supervisor as reporting to the operations manager, the operations manager's job description 
does not include any supervisory job duties. Accordingly, the AAO cannot conclude that the beneficiary will 
manage professional, managerial or supervisory employees. See 5 101(a)(44)(A)(ii) of the Act. 
Finally, upon review of the job descriptions for the beneficiary's subordinates, the AAO cannot concur with 
the petitioner's assertion that the beneficiary devotes 100% of his time to managerial duties. The petitioner 
has not described any non-managerial duties to be performed by the beneficiary. However, it is not plausible 
that the operations manager and supervisor perform all of the non-qualifying operational and administrative 
tasks required for the company to function, thereby allowing the beneficiary to perform exclusively 
managerial tasks. As already discussed, the petitioner has not identified any specific duties to be performed by 
the beneficiary, nor has it consistently described the nature of its business. Since the AAO cannot determine 
what the beneficiary actually does on a daily basis, the record provides no foundation for a conclusion that he 
is engaged primarily in managerial or executive duties, much less that he is engaged exclusively in qualifying 
duties. 
Accordingly, the petitioner has not established that the beneficiary will be employed in a primarily executive 
or managerial capacity, as required by 8 C.F.R. $ 214.2(1)(3). 
Beyond the decision of the director, the record does not establish that the petitioner and the foreign entity 
currently have a qualifying relationship pursuant to 8 C.F.R. 5 214.2(1)(l)(ii)(G). The petitioner indicated on 
the initial petition that 51% of its stock is owned by the beneficiary's foreign employer. With the initial 
petition, it submitted its articles of incorporation, dated February 23, 1999, which indicate that the company is 
authorized to issue and have outstanding at any one time an aggregate number of 500 shares of common stock 
having a par value of 1.00. The petitioner also submitted its stock certificates, numbered one and two, both 
dated February 24, 1999. The first certificate shows that 510 shares were issued to the petitioner's claimed 
majority shareholder, while the second shows that 255 were issued to the same company. Both certificates 
indicate that the company is authorized to issue only 500 shares. Clearly, the company must have more than 
500 shares of stock, but there is no documentary evidence to establish how many shares are actually 
authorized, how many have been issued, or who holds the remaining shares. Furthermore, the petitioner's 
2002 Form 1120, U.S. Corporation Income Tax Return, indicates that no individual or corporation directly or 
indirectly owns more than 50% of the corporation's voting stock, which suggests that the company has no 
majority shareholder and therefore is not a 51%-owned subsidiar , as claimed on the petition. Finally, on 
appeal, counsel for the petitioner states tha d the company president, is the owner and 
majority shareholder of the petitioner. As stated above, 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 of Ho, szLpra. Based on the conflicting documentation and statements, the AAO cannot 
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conclude that the U.S. entity maintains a qualifying relationship with the foreign entity as required by 
8 C.F.R. 5 214.2(1)(l)(ii)(G). For this additional reason, the petition will be denied. 
An application or petitioner 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 Sates, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 2001), afd. 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. 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. 3 1361. Here, that burden has 
not been met. Accordingly, the decision of the director will be affirmed and the petition will be denied. 
ORDER: The appeal is dismissed.