dismissed L-1A Case: Freight Forwarding

identi&i i, . ; ,.~ieted to 
prevent &aij awarranted 
 en dpemad privacy 
PUBLIC COW 
U.S. Department of Homeland Security 
20 Massachusetts Ave. N.W., Rm. 3000 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
File: 
 EAC 07 015 521 10 Office: VERMONT SERVICE CENTER 
 Date: AUG 1 8 
Petition: 
 Petition for a Nonimmigrant Worker Pursuant to Section 10l(a)(15)(L) of the Immigration 
and Nationality Act, 8 U.S.C. $ 1 101 (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. 
fiobert P. Wiernann, Chief 
Administrative Appeals Office 
EAC 07 015 52110 
Page 2 
DISCUSSION: The Director, Vermont Service Center, denied the petition for a nonirnmigrant visa. The 
matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. 
The petitioner claims to be an international freight forwarding company and seeks to extend the employment 
of its vice president in the United States as an intracompany transferee pursuant to section 101(a)(15)(L) of 
the Immigration and Nationality Act (the Act), 8 U.S.C. 9 1101(a)(15)(L). The petitioner, a Texas limited 
liability company, claims to be the subsidiary of Advemar, S.C., located in Juarez, Mexico. The beneficiary 
was initially granted a two-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, finding that the petitioner had not demonstrated that the beneficiary would be 
employed in the United States in a primarily managerial or executive capacity. Specifically, the director 
noted that based on the evidence submitted, the beneficiary would not function at a senior level within the 
petitioner's organizational hierarchy. 
On appeal, the petitioner, through counsel, asserts that the beneficiary will be in fact acting in a primarily 
executive capacity, and that the director misconstrued the definitions of managerial and executive capacity 
when assessing the beneficiary's eligibility. In support of these contentions, counsel 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 10l(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. fj 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 
EAC 07 015 52110 
Page 3 
education, training, and employment qualifies himlher 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. 
This primary issue in this matter is whether the beneficiary will be employed by the United States entity in a 
primarily managerial or executive capacity. 
Section 10 1 (a)(44)(A) of the Act, 8 U. S.C. 5 1 10 1 (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. 9 1101(a)(44)(B), defines the term "executive capacity" as an 
assignment within an organization in which the employee primarily: 
(i) 
 directs the manage&ent 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 filed Form 1-129, Petition for a Nonimmigrant Worker, on October 23, 2006. In the petition, 
the petitioner indicated that it was established in 1998 and currently employed 13 persons. The petitioner 
claimed that the petitioner would serve as its vice president and chief executive officer. In support of the 
EAC 07 015 521 10 
Page 4 
beneficiary's eligibility for the benefit sought, the petitioner submitted the following overview of the 
beneficiary's duties and responsibilities written b 
1. ACTIVITIES AND [RESPONSIBILITES] DETAILS 
a. Sales Promotion 
b. 
 Control and supervision of Import and Export tax reports 
c. 
 Control of reception of [merchandise] and forwarded after cover customs formulitis [sic] 
to final destination 
d. 
 Collection of [receivables] from customers and payments to Governmental, utilities and 
Services Suppliers 
e. 
 Customer Services for Import and Export Traffic 
2. 
 [Percentage] of the time applied to the different activities are variables soon as the traffic 
[volume] of Import and Export operation, but as an average. We may say that Import is 
the 70% of the operations in [comparison] with the 30% of Export activities. 
3. 
 The number of the [Employees under] his [direction] and supervision are 
Administrative 1 person 
Traffic I person 
Warehouse 4 persons 
Reception 1 person 
4. 
 Description of his duties and responsibilities of the employees under His direction and 
supervision 
5. 
 His [Authority] is at second level just under the [Authority] of the President 
6. 
 The service provide by the corporation are in first term of importance. The Custom 
Formalities in front of the Mexican [Authorities] under the License Of the Principal and 
Director of the entity. 
A second list of duties entitled "Chief [Executive] Office" provided the following description of duties: 
Will work directly with the Board of Directors of the International Companies in order to 
improve its business service. Will implement the corporate business plan for expansion of 
international trade. Has full authority to hire and fire all employees. To negotiate contracts 
and to consult with corporate attorneys, financial advisors, accountants and all other 
[professional] advisors. 
The petitioner also submitted an organizational chart, indicating that the beneficiary, as vice- resident 
oversees the administration department, which in turn employed two persons, namely, P 
and . Additionally, the petitioner submitted its Form 941, Employer's Quarterly 
Federal Tax Return, and Texas Form C-3, Employer's Quarterly Report, for the quarter ending March 3 1, 
EAC 07 015 521 10 
Page 5 
e Form C-3 indicated that the petitioner employed only one person during that period, 
-The petitioner did not submit evidence documenting its employment of the workers identified on the 
organizational chart. 
The director found this evidence insufficient to warrant approval of the petition and consequently issued a 
request for evidence on November 1, 2006. The director requested evidence that the petitioner was doing 
business and was able to support the beneficiary in a primarily managerial and executive capacity. 
Furthermore, the director requested an overview of the petitioner's staffing levels, including a list of all 
current employees, their position titles, and a complete description of each employee's position. The director 
also requested documentary evidence proving that the petitioner actually employed such persons, including 
but not limited to Forms 941, Forms W-2 and/or Forms 1099 for the years 2005 and 2006. 
In response, the petitioner submitted a letter dated December 14, 2006 which provided an overview of the 
petitioner's employees, their job titles, and their associated duties. The letter listed the following seven 
1, Warehouse Employee; (5- 
2ustoms Supervisor; and (7) 1 
Forms W-2 for 2005 for the following persons: 
- 
[ Warehouse 
Traffic Department; (6) 
I Transport. Additionally, the petitioner submitted 
Beneficiary 
The persons named in bold type are not listed on the petitioner's current employee roster. 
The petitioner also submitted its Forms 941 for the first three quarters of 2006. The first quarter, ending 
March 3 1,2006, lists seven employees; the second quarter, ending June 30,2006, lists eleven employees; and 
the third quarter, ending September 30,2006, lists eleven employees. 
On January 3, 2007, the director denied the petition. The director determined that the evidence in the record 
did not establish that the beneficiary would be employed in a primarily managerial or executive capacity in 
the United States. Specifically, the director noted that the beneficiary would not be supervising managerial, 
supervisory, or professional employees based on the job titles and position descriptions of the petitioner's 
other six employees. Moreover, the director concluded that some of the duties listed in the beneficiary's 
position description included non-managerial and non-executive tasks. 
On appeal, counsel for the petitioner alleges that the director's decision was erroneous, and contends that the 
beneficiary is in fact working in a qualifying capacity. Counsel also asserts that the beneficiary is an 
executive employee, and thus the director erred by evaluating his qualifications as a manager when 
EAC 07 015 521 10 
Page 6 
adjudicating the petition. Counsel claims in his appeal brief that the beneficiary is the vice president, the 
chief executive officer, and the chief financial officer of the company. Counsel further claims that several of 
the beneficiary's duties that the director deemed to be disqualifying, such as signing bills of lading, were 
duties reserved for the executive in charge of the company and thus were executive in nature. Counsel 
submits additional details regarding the petitioner's other employees and their positions in support of the 
appeal. 
The AAO, upon review of the record of proceeding, concurs with the director's finding. 
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(1)(3)(ii). In this case, the petitioner vaguely 
described the beneficiary's duties but failed to provide a specific overview of how he will refrain from 
performing non-qualifying tasks. The document submitted by .provides 
a generic and at times an incomprehensive overview of the beneficiary's job duties, and lists tasks such as 
"sales promotion," "collection of receivables," and "customer services for import and export traffic." The 
AAO notes that the statements provided give no insight on the nature of the beneficiary's daily tasks or his 
day-to-day duties. 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 answer a critical question in this case: What does the beneficiary primarily do on a 
daily basis? 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). 
Moreover, in response to the request for evidence dated December 14, 2006, the petitioner lists the 
beneficiary's duties as: 
Supervisor of all Employees, Administrative, Bank Accounts & Customer service. 
[Verify] all documents and Signatures before present to the Mexican Custom 
Give Pedimentos to the Mexican Dnvers 
Dispatch Reds of Imports & Exports (in Mexican Customs) 
Again, this overview is not entirely clear in its description of the beneficiary's tasks. However, it can be 
concluded that tasks such as "give pedimentos to Mexican drivers" and verifying documents and signatures 
are not typically the tasks of someone employed in a primarily executive capacity, as alleged by counsel. 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). 
On appeal, counsel for the petitioner attempts to provide further clarification with regard to the beneficiary's 
duties, and provides a detailed statement prepared on the petitioner's letterhead which outlines the 
beneficiary's duties as well as those of his subordinate employees. This evidence, however, will not be 
considered by the AAO. 
EAC 07 015 52110 
Page 7 
The regulation states that the petitioner shall submit additional evidence as the director, in his or her 
discretion, may deem necessary. The purpose of the request for evidence is to elicit further information that 
clarifies whether eligibility for the benefit sought has been established, as of the time the petition is filed. See 
8 C.F.R. $5 103.2(b)(8) and (12). The failure to submit requested evidence that precludes a material line of 
inquiry shall be grounds for denying the petition. 8 C.F.R. 5 103.2(b)(14). 
Where, as here, a petitioner has been put on notice of a deficiency in the evidence and has been given an 
opportunity to respond to that deficiency, the AAO will not accept evidence offered for the first time on 
appeal. See Matter of Soriano, 19 I&N Dec. 764 (BIA 1988); see also Matter of Obaigbena, 19 I&N Dec. 
533 (BIA 1988). If the petitioner had wanted the submitted evidence to be considered, it should have 
submitted this detailed description of duties in response to the director's request for evidence. Id. Under the 
circumstances, the AAO need not and does not consider the sufficiency of the evidence submitted on appeal. 
Consequently, the descriptions of the beneficiary's duties submitted prior to adjudication will be relied upon 
for purposes of this appeal. 
An issue not directly addressed by the director is whether the beneficiary is primarily a manager or an 
executive. More specifically, although the petitioner does clarify that the beneficiary is claiming to be 
primarily engaged in executive duties under section 101(a)(44)(B) of the Act, both counsel and the petitioner 
lists numerous managerial tasks under the beneficiary's description of duties. A beneficiary may not claim to 
be employed as a hybrid "executivelmanager" and rely on partial sections of the two statutory definitions. If 
the petitioner chooses to represent the beneficiary as both an executive and a manager, it must establish that 
the beneficiary meets each of the four criteria set forth in the statutory definition for executive and the 
statutory definition for manager. See sections 101(a)(44)A) and (B) of the Act. 
In this matter, counsel's specific assertion on appeal that the beneficiary is an executive is noted. However, it 
was still claimed that a major part of the beneficiary's duties included overseeing staff. The statement by 
, the statement entitled "Chief [Executive] Officer," and the letter dated 
December 14, 2006 all claim that the beneficiary is supervising employees. Although the beneficiary is not 
required to supervise personnel, if it is claimed that his qualifying duties involve supervising employees, the 
petitioner must establish that the subordinate employees are supervisory, professional, or managerial for the 
purpose of determining whether he meets the alternative requirement for a managerial capacity position. See 
8 10 1 (a)(44)(A)(ii) of the Act. 
The petitioner did not provide the level of education required to perform the duties of the beneficiary's 
subordinates, such as the warehouse workers, the traffic department employee, the accounting person, the 
customs person, and the transport employee. Thus, the AAO is unable to determine whether these employees 
possess or require an advanced degree, such that they could be classified as professionals. Nor has the 
petitioner shown that any of these employees supervise subordinate staff members or manage a clearly 
defined department or function of the petitioner, such that they could be classified as managers or supervisors. 
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. 
An employee will not be considered to be a supervisor simply because of a job title, because he or she is 
arbitrarily placed on an organizational chart in a position superior to another employee, or even because he or 
EAC 07 015 521 10 
Page 8 
she supervises daily work activities and assignments. Rather, the employee must be shown to possess some 
significant degree of control or authority over the employment of subordinates. Given the size and nature of 
the vaguely described fieight forwarding business, it is more likely than not that the beneficiary and his 
proposed subordinate employees will all primarily perform the tasks necessary to the operation of the 
business. See generally Family, Inc. v. US. Citizenship and Immigration Services, 469 F.3d 1313 (9th Cir. 
2006). Therefore, it appears that the beneficiary will be, at most, a first-line supervisor of non-professional 
employees. A managerial or executive employee must have authority over day-to-day operations beyond the 
level normally vested in a first-line supervisor. See 101(a)(44) of the Act; see also Matter of Church 
Scientology International, 19 I&N Dec. at 604. 
The record does not establish that a majority of the beneficiary's duties have been or will be primarily 
directing the management of the organization. The petitioner has not demonstrated that it has reached or will 
reach a level of organizational complexity wherein the hiring/firing of personnel, discretionary 
decision-malung, and setting company goals and policies constitutes significant components of the duties 
performed by the beneficiary on a day-to-day basis. For this reason, the petition may not be approved. 
It is noted that CIS approved a petition that had been previously filed on behalf of the beneficiary. The 
director's decision does not indicate whether he reviewed the prior approval of the other nonimmigrant 
petition. If the previous nonimmigrant petition was approved based on the same unsupported and 
contradictory assertions that are contained in the current record, the approval would constitute material and 
gross error on the part of the director. The AAO is not required to approve applications or petitions where 
eligibility has not been demonstrated, merely because of prior approvals that may have been erroneous. See, 
e.g. Matter of Church Scientology International, 19 I&N Dec. at 597. It would be absurd to suggest that CIS 
or any agency must treat acknowledged errors as binding precedent. Sussex Engg. Ltd. v. Montgomeiy, 825 
F.2d 1084, 1090 (6th Cir. 1987), cert. denied, 485 U.S. 1008 (1988). 
Furthermore, the AAO's authority over the service centers is comparable to the relationship between a court 
of appeals and a district court. Even if a service center director had approved the nonimmigrant petitions on 
behalf of the beneficiary, the AAO would not be bound to follow the contradictory decision of a service 
center. Louisiana Philharmonic Orchestra v. INS, 2000 WL 282785 (E.D. La.), affd, 248 F.3d 1139 (5th Cir. 
200 I), cert. denied, 122 S.Ct. 5 1 (2001). 
The .prior approval does not preclude CIS from denying an extension of the original visa based on 
reassessment of petitioner's qualifications. Texas AM Univ. v. Upchurch, 99 Fed. Appx. 556, 2004 WL 
1240482 (5th Cir. 2004). 
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. 5 1361. Here, that burden has 
not been met. 
ORDER: The appeal is dismissed.