dismissed L-1A Case: Freight Forwarding

U.S. Department of Homeland Security 
20 Massachusetts Ave., N.W.. Rm. A3042 
Washington, DC 20529 
PkfjjLlC c(jpy- U. S. Citizenship 
and Immigration 
File: SRC-03-193-50784 Office: TEXAS SERVICE CENTER Date: 
Petition: Petition for a Nonirnrnigrant Worker Pursuant to Section 101(a)(15)(L) of the Immigration 
and Nationality Act, 8 U.S.C. 5 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. 
9- '6 
[Robert P. Wiemann, Director 
Administrative Appeals Office 
SRC-03-193-50784 
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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 petition seeking to extend the employment of its Import 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. 1101(a)(15)(L). The petitioner is a corporation organized in the State of 
Florida that is engaged in the freight forwarding business. The petitioner claims that it is the subsidiary of 
Ecuacargo, S.A., located in Arajuno, Ecuador. The beneficiary was initially granted a one-year period of stay 
to open a new office in the United States and the petitioner now seeks to extend the beneficiary's stay. 
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 for the petitioner asserts that the evidence of 
record reflects that the beneficiary will be employed in a primarily managerial or executive capacity, 
particularly due to the fact that the petitioner hired two new employees since filing the petition. In support of 
this assertion, counsel submits a brief, additional evidence, and previously submitted documents. 
To establish eligibility for the L-1 nonimrnigrant 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. $ 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 himfher to perform the intended 
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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. 
The regulation at 8 C.F.R. 3 214.2(1)(14)(ii) also provides that a visa petition, which involved the opening of a 
new office, may be extended by filing a new Form 1-129, accompanied by the following: 
(A) Evidence that the United States and foreign entities are still qualifying organizations 
as defined in paragraph (l)(l)(ii)(G) of this section; 
(B) Evidence that the United States entity has been doing business as defined in 
paragraph (l)(l)(ii)(H) of this section for the previous year; 
(C) A statement of the duties performed by the beneficiary for the previous year and the 
duties the beneficiary will perform under the extended petition; 
(D) A statement describing the staffing of the new operation, including the number of 
employees and types of positions held accompanied by evidence of wages paid to 
employees when the beneficiary will be employed in a management or executive 
capacity; and 
(E) Evidence of the financial status of the United States operation. 
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. 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 
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acting in a managerial capacity merely by virtue of the supervisor's supervisory 
duties unless the employees supervised are professional. 
Section lOl(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. 
In the initial petition submitted on July 2, 2003, the petitioner described the beneficiary's job duties as 
follows: 
[The beneficiary] directly supervises [the employee in charge of imports/bookings] who had 
University studies; In addition, [the beneficiary] also supervises outside assistance and is in 
charge of defining strategy, plans, and structure for her department. She is supervised 
directly by the General Manager. We expect to hire three more full time employees this year, 
two of which will be directly under [the beneficiary] . . . . [The beneficiary] is in charge of 
supervising the operations of the Import Department of the [petitioner]. 
On August 11, 2003, the director requested additional evidence. In part, the director requested: (1) a copy of 
the petitioner's organizational chart; (2) an explanation of how the beneficiary can act in a primarily 
managerial or executive capacity given the current structure of the company; (3) evidence of the petitioner's 
current staffing level, including position titles and duties of all employees; (4) an indication of the educational 
backgrounds of any professionals working for the petitioner; and (5) a description of the beneficiary's duties 
over the previous year, with an indication of the percentage of time she spends on each task. 
In a response dated October 24, 2003, in part the petitioner submitted: (1) an organizational chart for the 
petitioner; (2) a statement discussing the duties of each of its employees; (3) a statement discussing the 
beneficiary's duties in greater detail; (4) evidence of the academic credentials of the beneficiary; and (5) 
evidence of the academic credentials of other employees of the petitioner, including the beneficiary's 
subordinates. In the statement regarding the beneficiary's duties, the petitioner provided the following: 
[The beneficiary] is [rlesponsible for managing the relationship with the trade experts of 
outer clients. [The] [plosition is part of [the] client integration team and responsible for 
timely delivery of trade content to the client. [The] [plosition is also part of [the] content 
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validation team and ensures the client expectations regarding quality and compliance with 
international trade/customs law. 
[The beneficiary] prepares import and export documents for transportation intermediary 
companies such as freight forwarders, steam ship lines, airlines or customs-house brokers, 
and commercial banks to ensure compliance with U.S. and foreign government regulations. 
She has knowledge of specialized legal regulations, a foreign language, international credit 
practices and business customs in other countries. 
Duties and Responsibilities 
Manage client relationships, specifically with clients; trade experts. She spends one 
day a week in this matter. 
Involvement in definition of deliverables, responsible for on time delivery of trade 
content. Almost every day she spends one hour in this coordination. 
Responsible for validation of accuracy, completeness, and testing of trade data 
related to tariffs, compliance and documents. 
Identify new sources for trade data and interpret it. 
Maintenance of data integrity and implementation of processes to improve data 
validation and collection. 
Drive product for as far as it relates to trade features. 
Continuously demonstrating positive feedback on process involvement, product 
enhancements, and team interactions. She is permanently working in this matter. 
- Supervises the imports and exports of the company. 
Delegate all duties, activities and responsibilities to [the employee in charge of 
imports/bookings], and [the employee in charge of warehousing and 
exports/bookings]. 
The percentage of time performing these duties is as follows: 
Supervising the Import Department 40% 
Supervising the Export Department 40% 
Identifying new sources for trade 10% 
- Making plans, preparing documents 5% 
Managing clientftrade experts relationship, meetings 5% 
The petitioner described the duties of the beneficiary's subordinates as follows: 
General Assistant 
In the accounting part of the company, she is in charge of the filing, does the invoices and 
sends all the payments to the suppliers. In the operational part, she does the bookings with 
the airlines and steamship lines, and receives the spaces for the cargo that the company 
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moves inside the United States. Reception of pre-alerts of cargoes coming into the States, 
and reports to the [beneficiary]. In charge of the reports, and statements to the customers. 
Warehouse controller 
Control of the warehouse. Reception of all cargo coming into the States, pre-cooling of the 
perishables [sic] goods if needed, labeling and inventory of the cargo. Segregation of the 
cargo that it will be delivered in the Miami area, and the one that it is going to be shipped to a 
different State. Coordination with all the trucking companies that the [petitioner] will use. 
On November 26, 2003, the director denied the petition. The director determined that the petitioner did not 
establish that the beneficiary will be employed in the United States in a primarily managerial or executive 
capacity. Specifically, the director noted apparent discrepancies in the petitioner's documentation regarding 
the number of individuals the petitioner employs. The director indicated that the petitioner's response to the 
request for evidence "states there are 6 employees while the petition states there are 4 employees." The 
director further noted that "the latest quarterly tax return submitted and dated 0611 112003 shows only 1 
employee." The director stated that "[tlhis discrepancy leads to a lack of credibility as to the reliability of the 
other information contained in the file and creates doubt as to whether the beneficiary has been employed 
primarily in a managerial or executive capacity for the past year." 
On appeal, counsel for the petitioner asserts that the evidence of record reflects that the beneficiary will be 
employed in a primarily managerial or executive capacity, particularly due to the fact that the petitioner hired 
two new employees since filing the petition. Counsel provides that "[wlhen the petition for the L-1 Visa was 
submitted in July 02, 2003, [the petitioner] had only four full time employees. It has since then contracted 
two more employees, making a total of six full time employees." Counsel further states that "[the beneficiary] 
is now supervising the two professionals in charge of the Import and Export Department." Counsel provides 
that "[tlhe parent company is from Ecuador which unfortunately has had a bad political situation which made 
it impossible to fulfill the anticipated business that should have occurred between the foreign parent company 
and the [petitioner]." In support of these assertions, counsel submits a brief, educational documents for the 
petitioner's newly hired employees, and previously submitted documents. 
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. The petitioner must specifically state whether the beneficiary is primarily employed in a 
managerial or executive capacity. 
In the instant matter, the petitioner provides a lengthy description of the beneficiary's duties, including a 
general indication of the percentage of time the beneficiary devotes to five groups of tasks. The petitioner 
indicates that the beneficiary will spend a combined 80 percent of her time supervising the import and exports 
departments, each consisting of one subordinate employee. Although the beneficiary is not required to 
supervise personnel, if it is claimed that her duties involve supervising employees, the petitioner must 
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establish that the subordinate employees are supervisory, professional, or managerial. See $ 101(a)(44)(A)(ii) 
of the Act. 
In evaluating whether the beneficiary manages 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 lOl(a)(32) of the Act, 8 U.S.C. 5 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 "profession" 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). 
Therefore, the AAO must focus on the level of education required by the position, rather than the degree held 
by a subordinate employee. The possession of a bachelor's degree by a subordinate employee does not 
automatically lead to the conclusion that an employee is employed in a professional capacity as that term is 
defined above. In the instant case, the petitioner has not established that an advanced degree is actually 
necessary to perform the duties of the beneficiary's two subordinates. 
The petitioner provides documentation to show that its General Assistant, who is in charge of 
imports/bookings, completed a bachelor's degree in business and accounting. Yet, the job description for the 
General Assistant shows that she performs primarily clerical tasks that do not appear to require an advanced 
degree absent greater explanation. For example, "she is in charge of the filing, does the invoices and sends all 
the payments to the suppliers. [Slhe does the bookings with the airlines and steamship lines, and receives the 
spaces for the cargo that the company moves inside the United States." Thus, the petitioner's General 
Assistant is not deemed to be a professional as contemplated by section 101(a)(44)(A)(ii) of the Act. The 
petitioner provides documentation to show that its Warehouse Controller, who is in charge of 
exports/bookings, completed four semesters with a technical college. The description of the duties of the 
Warehouse Manager further suggests that his tasks do not require a bachelor's degree, such as receiving cargo 
and coordinating with trucking companies. Thus, the record reflects that he has not completed an advanced 
degree, and he is not a professional employee. 
Nor has the petitioner shown that the beneficiary's two subordinates supervise other staff members, such that 
they could be deemed supervisory personnel. The petitioner has not established that the General Assistant or 
Warehouse Controller manage a clearly defined department or function of the petitioner, such that they could 
be classified as managers. 
Thus, the petitioner has not shown that the beneficiary's subordinate employees are supervisory, professional, 
or managerial, as required by section 101(a)(44)(A)(ii) of the Act. 
A managerial or executive employee must have authority over day-to-day operations beyond the level 
normally vested in a first-line supervisor, unless the supervised employees are supervisory, professional, or 
managerial. See Matter of Church Scientology Intenzational, 19 I&N Dec. 593, 604 (Comm. 1988). As the 
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beneficiary spends 80 percent of her time managing two employees that are not supervisory, professional, or 
managerial, the evidence of record reflects that she acts primarily as a first-line supervisor. 
As provided above, the director noted apparent discrepancies in the petitioner's documentation regarding the 
number of individuals the petitioner employs. Upon review of the record, the AAO finds that the petitioner 
previously resolved the discrepancies in its documentation referenced by the director. The petitioner's IRS 
Form 941, Employer's Quarterly Federal Tax Return, for the first quarter of 2003 indicates that the petitioner 
employed one individual on March 12, 2003. Yet, with the initial petition, the petitioner included IRS Form 
941c, Support Statement to Correct Information, dated June 6, 2003, reflecting that it amended its Form 941 
for the first quarter of 2003 to show that it employed four individuals during that period. Thus, the petitioner 
resolved the apparent contradiction between its Form 1-129 petition and Form 941 by submitting appropriate 
documentation with the petition. Further, the petitioner's representation that it employs six employees was 
made after the date of filing the initial petition. The record reflects that the petitioner hired new employees 
after the filing date, thus the petitioner's statement that it employs six individuals is not in contradiction with 
its representation that it employed four individuals as of the date of filing. The director stated that "[tlhis 
discrepancy leads to a lack of credibility as to the reliability of the other information contained in the file and 
creates doubt as to whether the beneficiary has been employed primarily in a managerial or executive capacity 
for the past year." The director's comment on this discrepancy and the credibility of the petitioner's 
representations will be withdrawn. 
However, based on the foregoing, the record is not persuasive in demonstrating that the beneficiary has been 
or will be employed in a primarily managerial or executive capacity. The petitioner indicates that it hired two 
new employees since the date of filing the petition, and it plans to hire additional employees in the future. 
Yet, the petitioner must establish eligibility at the time of filing the nonimrnigrant visa petition. A visa 
petition may not be approved at a future date after the petitioner or beneficiary becomes eligible under a new 
set of facts. Matter of Michelin Tire Corp., 17 I&N Dec. 248 (Reg. Comm. 1978). The fact that the petitioner 
hired two new employees since filing is not probative of whether the petitioner was eligible as of the filing 
date. Furthermore, 8 C.F.R. 5 214.2(1)(3)(v)(C) allows the intended United States operation one year within 
the date of approval of the petition to support an executive or managerial position. There is no provision in 
Citizenship and Immigration Services (CIS) regulations that allows for an extension of this one-year period. If 
the business is not sufficiently operational after one year, the petitioner is ineligible by regulation for an 
extension. In the instant matter, the petitioner has not reached the point that it can employ the beneficiary in a 
predominantly managerial or executive position. 
Accordingly, the petitioner has not established that the beneficiary will be employed in a primarily managerial 
or executive capacity, as required by 8 C.F.R. 5 214.2(1)(3). For this reason, the appeal will be dismissed. 
Beyond the decision of the director, the petitioner has failed to establish that it maintains a qualifying 
relationship with the foreign entity as required by 8 C.F.R. $ 214.2(1)(14)(ii)(A), due to the fact that it has 
failed to show that the foreign entity is a qualifying organization engaged in the regular, systematic, and 
continuous provision of goods andlor services pursuant to 8 C.F.R. 5 214.2(1)(l)(ii)(H). The petitioner 
provided numerous foreign language documents purportedly relating to the foreign entity's operations, yet the 
petitioner did not submit complete translations. Because the petitioner failed to submit certified translations 
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of the documents, the AAO cannot determine whether they support the petitioner's claim that the foreign 
entity is doing business. See 8 C.F.R. 5 103.2(b)(3). Accordingly, the evidence is not probative and will not 
be accorded any weight in this proceeding. The petitioner provided bank statements and invoices for the 
foreign entity for the period from January to April 2003, yet this documentation is insufficient to establish that 
the foreign entity engaged in "the regular, systematic, and continuous provision of goods andfor services" for the 
previous year, or that the foreign entity was engaged in such business as of the time of filing the petition. See 
8 C.F.R. 5 214.2(1)(l)(ii)(H). For this additional reason, the appeal will be dismissed. 
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). 
In visa proceedings, the burden of proving eligibility for the benefit sought remains entirely with the 
petitioner. Section 291 of the Act, 8 U.S.C. 5 1361. Here, that burden has not been met. Accordingly, the 
director's decision will be affirmed and the petition will be denied. 
ORDER: The appeal is dismissed.