dismissed L-1A Case: Freight Forwarding

U.S. Departmeat of Homeland Security 
20 Mas. Abe. N.W , Rm. A3042 
Wash~ngton. DC 20529 
~afirmly~r,,. 
.I* 
U.S. Citizenshi 
Ynrni, Ff 
and Z-grat f on 
.- 
ton.. e 
File: WAC 03 2 1 1 50 194 Office: CALIFORNIA SERVICE CENTER Date: JUN 0 9 
IN RE: Petitioner: 
Beneficiary: 
Petition: Petition for a Nonimmigrant Worker Pursuant to Section lOl(a)(IS)(L) of the Immigration 
and Nationality Act, 8 U.S.C. 8 1101(a)(15)(L) 
IN BEHALF OF PETITIONER: SELF-REPRESENTED 
I 
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 fiuther inquiry must be made to that ofiice. 
" Admmlstrative Appeals Ofice 
WAC03 211 50194 
Page 2 
 ISC CUSS ION: The Director, California Servlce Center, denied the petition for a nonimmipnt visa. The 
matter is now before the Administrative Appeals Office (AAO) on appeal. The AAO wlll dismiss the appeal.' 
0 
The petitloner seeks to employ the beneficiary temporarily in the United States as an L-1A nonimmigrant 
;ntracompany transferee pursuant to section lOl(a)(15)(L) of the lmrntgration and Nationality Act (the Act), 8 
U.S.C. 4 I lOl(a)(lS)(L). The U.S. petitioner, a corporation organized in the State of New York and l~censed 
to do business in the State of California, is engaged in international freight forwarding. It seeks to employ the 
beneficiary as ~ts marketing and sales manager In its California office. The petitioner clalrns that ~t is a branch 
of, located in Rato, Italy. 
The director denied the petition concluding that the petitloner did not establish that the beneficiary will be 
employed m 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 =view. On appeal, the petitioner's former counsel asserts that the 
denial was arbitrary and capricious, and demonstrated a clear abuse of discretion. In addition, she alleges that 
the beneficiary clearly qualifies for the classification sought, and urges reconsideration on this matter. 
I 
To establish eligrbility for the L-l nonimmigrant visa classification, the petltioner must meet the critena 
outlined in secbon 101(a)(15)(L) of the Act. Specifically, a qualifying organization must have employed the 
benefic~ary in a quallfylng managerial or executive capacity, w 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 semces to the same employer or a sibsidiary or affiliate thereof in a managerial, executive. or 
specialized knowledge capacity. 
The regulation at 8 C.F.R. 8 214.2(1)(3) states that an individual petition filed on Form 1-129 shall be 
accompan~ed by: 
r 
II 
(1) Evidence that the peutiona and the organization which employed en wlll employ the 
ahen 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, managenal, or specialized 
knowledge capacity, ~ncluding 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 organizahon ullthin the three years preceding the filing of 
the petit~on. 
' In a letter dated May 13, 2005, counsel advised the AAO that she no longer represents the petltioner in this 
matter. As a result, the petitioner will be treated as self represented. 
WAC 03 21 1 50194 
Page 3 
(iv) Evidence that the alien's prior year of employment abroad was in a positlon that was 
managerial, executive or involved specialized knowledge and that the alien's pnor 
I education, training, and employment qualifies hidher to perform the intended 
sewices in the United States; however, the work in the United States need not be the 
same work which the alien performed abroad. 
The primary issue in this matter is whether the beneficiary will be employed by the United States entlty in a 
primarily managerial or executive capacity. 
Section 101(a)(44)(A) of the Act, 8 U.S.C. g 1101(a)(44)(A), defines the term "managerial capaclty" as an 
ass~gnrnent within an organization in which the employee primarily: 
(i) manages the organization, or a department, subdivision, function, or component of 
the organization; 
I (ir) supervises and controls the work of other supervisory, professional, or managerial 
employees, or manages an essential funct~on within the organization, or a department 
or subdiv~sion of the organization; 
(ii~) if another employee or other employees are directIy 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 dlrectly supervised, 
funct~ons at a senior level within the organizational hierarchy or with respect to the 
I function managed; and 
I (is) exercises d~scret~on over the day to day operat~ons of the activlty or functron for 
whlch the employee has authonty. A first lme supervisor is not considered to be 
actlng In a rnanagenal capaclty merely by vrrtue of the supe~sor's supervisory 
duties unless the employees supervised are profess~onal. 
Section 101(a)(44)(8) of the Act, 8 U.S.C. 5 1101(a)(#)(B), defines the term "executive capacity" as an 
assignment within an organizatron in which the employee primarily: 
I 
(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 
(is) receives only general supervision or direction from higher level executives, the board 
of directors, or stockholders of the organization. 
WAC 03 211 50194 
Page 4 
I1 
In the in~tial petlbon, the petltioner stated that the beneficiary would be acting as the markehng and sales 
manager for the petitioner's California office. With regard to his proposed duties, the petihonm stated In a 
letter dated July 9,2003: 
As Manager of Sales & Marketing, [the beneficiary] will direct and coordinate activities of 
the Sales and Markehng depament of [the petrtioner], a New York Corporatton, duly 
authorized to transact business in the State of California, to obtain optlmum effic~ency and 
economy of operations and maximize profits. He wll plan and develop organizat~on pol~cies 
and goals, and implement goals through subordinate administrative personnel. He wlll 
coord~nate actrvitles of the Sales & Market~ng department, to effect operat~onal effic~ency 
and economy. He will direct and coordinate promotion of servxces performed to develop new 
markets, increase share of market, and obtain competluve poslhon in [the] industry. He wlll 
analyze the Sales & Marketing department's budget requests to ident~fy areas in which 
reduchons could be made, and allocated operating budget. He will confer wth adrmnistrahve 
personnel, and [review] achvity, operatmg, and sales reports to determine changes in 
programs or operations requimd. He w111 dlrect preparation of drrechves to department 
admnistrator outlining pollcy, program, or operat~ons changes to be implemented. 
On July 17,2003, the director requested additional evidence establishing that the beneficiary was qualified for 
the benefit sought. Specifically, the director requested evidence supporting the petltioner's clalm that the 
.;lbeneficlary had been acting in a primarily managenal or executive capacity wlule abroad, and that he would 
11 
continue working in a primarily managerial capacity wh~le in the Uruted States. The director required the 
submission of quarterly wage reports for both the New York and the CaItfomia offices of the petitioner, and 
further requested a detailed description of all employees of the U.S. petitioner including their position titles, 
duties, and education level required. 
h a response dated August 8, 2003, the petitioner submitted a detailed response accompanied by the 
documentation requested by the director. The petitioner's response included copies of organizational charts 
'for both the U.S. and foreign ent~ties, copres of the petihoner's quarterly wage reports, and an extenslve 
summary of the beneficiary's duties. 
1% August 21, 2003 the dlrector denied the petition. The director determined that the ev~dence In the record 
I dtd not establish that the beneficiary would be employed In a pnmanly managenal or executrve capacity 
while tn the Cahfomia office. Specificaily, the director concluded that the proposed duties of the beneficlary, 
In light of the Cal~fornia office's organizat~onal structure, included a large percentage of non-qualifying tasks 
to be performed by the beneficiary himself. In addition, the d~rector concluded that the California office had 
not demonstrated an organizat~onal compiexlty m whlch a full-time managenal posihon would be supported. 
appeal, former counsel for the pet~tioner alleges that this Interpretatton 1s erroneous, and reasserts that the 
beneficlary is clearly qual~fied for the classification sought. 
The AAO, upon review of the record of proceeding, concurs with the director's findmg. Specifically, upon 
revlew of the beneficiary's stated duties and the organizahonal structure under wh~ch he IS Intended to 
function, it appears that the beneficlary w11 not be actlng in a pnrnanly managerial or executive capacity. 
WAC 03 21 1 50194 
Page 5 
When examining the executive or managerial capacity of the beneficiary, the AAO w~ll look first to the 
petitioner's descriphon of the job duties. See 8 C.F.R. tj 214.2(1)(3)(ii). In this case, the descnptlon of the 
beneficiary's duties includes numerous marketing and sales duties essential to the operation of the business 
and its success m the marketplace. Furthennore, in response to the request for evidence, the petltloner 
confirms that the beneficiary's duties will ~nclude conducting all purchases on behalf of the petlt~oner, and 
devls~ng marke~ng strategies for both offices. The beneficiary would clearly be engag~ng first-hand in these 
non-managma1 tasks, and would therefore be contributing to the establishment of the company's servlces. An 
employee who primarily performs the tasks necessary to produce a product or to prov~de servlces 1s not 
considered to be employed ~n a managerial or executive capacity. Matter of Church Scienfoiogy International, 
19 I&N Dec. 593,604 (Comm. 1988). The actual duties themselves reveal the true nature of the employment. 
Fedin Bros. Co., Ltd. v. Suva, 724 F. Supp 1 103.1 108 (E.D.N.Y. 1989), afd, 905 F.2d 4 1 (2d. Clr. I 990). 
In contrast to this mterpretation, the petitioner asserts that the benefi nary w~ll execute these tasks though 
subordinate administrative personnel, and that he will oversee the entire sales and marketing department. The 
problem with this assertion, however, lies in the structure of the California o6ce. As confinned by the 
organlzationai chart provrded in response to the request for evidence, the beneficiary would be overseeing two 
employees: the operatrons and customer service representatwe, and the bookkeeperlair ocean operations 
supervisor. The beneficiary also purportedly supervises an employee in the New York ofice Identified as 
"marketing and human resources." Based on the petitioner's representations, her rnarketlng duties are llmlted 
to a particular product and/or geographical regron, thus she would not relieve the beneficiary from performing 
the majority of the petitioner's marketing duties. There IS no mention of any other adnunistratlve staff or 
marketmg or sales personnel to execute the goals ident~fied by the beneficiary. Going on record wthout 
supporting documentary evidence is not sufficient for purposes of meetlng the burden of proof m these 
proceedings. Motre7 of SofJici, 22 I&N Dec. 158, 165 (Comm. 1998) (c~ting Matter of Treasure Craft of 
California, 14 I&N Dec. 190 (Reg. Comm. 1972)). 
Also significant is the repeated contention that a significant portion sf the beneficiary's time would be devoted 
to the supmsim and direction of the personnel in the California office. Specifically, the petitioner claims 
that the beneficiary will hire and fire the personnel, direct the activities of the customer service department, 
attain goals through subordinate administrative personnel, and oversee the work of the marketing manager. 
Although the beneficiary is not required to supervise personnel, if it is claimed that his duties involve 
supervising employees, the petitioner must establish that the subordinate employees are supervisory, 
efessional, or managerial. See 5 101(a)(44#A)(ii) of the Act. 
Though requested by the &rector, the petitioner did not provide the level of education required to perform the 
duties of his subordmate employees. In evaluat~ng whether the hneficlary manages professional employees, 
the AAO must evaluate whether the subordinate posit~ons require a baccalaureate degree as a mlnrmum for 
entry Into the field of endeavor. Sectlon IOl(a)(32) of the Act, 8 U.S.C. 5 1101(a)(32), states that "[tJhe term 
prof~sion shall include but not be l~rmted to arch~tects, engineers, lawyers, physicians, surgeons, and teachers 
in elementary or secondary schools, colleges, academies, or seminaries." The term "profession" contemplates 
+-towledge or learn~ng, not merely skill, of an advanced type In a given field gained by a prolonged course of 
specialized lnstructlon and study of at least baccalaureate Ievel, which is a realistic prerequisite to entry Into 
WAC 03 21 1 50194 
Page 6 
the particular field of endeavor. Matter of Sea, 19 I&N Dec. 8 17 (Comm. 1988); Matter of Ling, 13 I&* 
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, in fact, established that a bachelor's degree is 
actually necessary, for example, to perform the duties associated with the beneficiary's subordrnate 
employees. Although specifically requested in the director's request for evidence, the petitioner faded to state 
the minimum level of education required to perform the dut~es of the positions they fill. Failure to submit 
requested evidence that precludes a material line of inquiry shall be grounds for denying the petition. 8 C.F.R. 
4 103.2(b)(I4). Thus, the petitioner has not established that these employees must possess an advanced 
degree, such that they could be classified as professionals. Nor has the petitioner shown that either of these 
employees supemse subordinate staff members or manage a clearly defined department or function of the 
detitioner, such that they could be classified as managers or supemsors. Thus, the petitioner has not shown 
that the beneficiary's subordinate employees are supervisory, professional, or managerial. as required by 
section I0 1 (aH44)(A)(ii) of the Act. 
dn review, the record as presently constituted is not persuasive in demonstrating that the beneficiary will be 
employed in a primarily managerial or executive capacity. For this reason, the petition may not be approved. 
Beyond the decision of the director; the petitioner has not submitted sufficient and credible evidence to 
establish a qualifying relationship between the United States and the foreign entity pursuant to 8 
Specifically, the petitioner submitted copies of share certificates evidencing tha 
wns four shares of the U.S. petitioner. The petitioner also provided a copy of the Minutes of the 
Special Meeting of Shareholders, dated July 6, 1999, which states that Alisped Spa, the claimed foreign 
entity, owns 100?/0 of the petitioner's outstanding shares. This inconsistency has not been clarified. 
Furthermore, the petitioner provides a copy of a filing with the Malian Cham 
indicates that the bv three oersons:a 
who owns 25%, and 
relationship tIy 
petitioner is obl~gated to clanfy the inconsistent and confl - < 
evidence. Matter of Ho, 19 I&N Dec. 582, 591-92 (BLA 1988). Simply stating that 
both companies does not qualify as independent and objective evidence. Golng on rtuulu wILlwut 
documentary evidence is not sufficient for purposes of meetlng the burden of proof in these PI~U~WU..,~. 
Matter ofSoffi, 22 I&N Dec. at 165 (clting Matter of Treasure Crapt of Califonia, 14 I&N Dec. 190 (Reg. 
Comm. 1972)). For this additional reawn the netitinn mav nnt hp 9nnrnlr~A 
ictine testimonv bv 
WAC 03 21 1 50194 
Page 7 
An applicat~on or petition that fails to comply with the technical requiements of the law may be denied by 
the AAO even if the Service Center does not identi& all of the grounds for denial in the ~nitial decision. See 
Spencer Enterprises, lnc. v. United States, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 20011, afld. 345 F.3d 683 
(9th Cir. 2003); see also Dor v. JNS, 891 F.2d 997, 1002 n. 9 (2d Cir. 1989)(noting that the AAO revlews 
appeals on a de novo basis). 
In visa petition proceedings, the burden of proving eligibility for the benefit sought remains entirely w~th the 
petitioner. Section 291 of the Act, 8 U.S.C. 3 1361. Here, that burden has not been met. Accordingly, the 
director's decision will be affirmed and the petition wj 11 be denied. 
ORDER: The appeal is dismissed.