dismissed L-1A Case: Furniture Manufacturing

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PUBLIC COPY 
U.S. Department of Hameland Security 
20 Mass. Ave, N.W. Rm. A3042 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
Services 
File: WAC 04 036 52950 Office: CALIFORNIA SERVICE CENTER Date: AfR 0 3 2006 
Petition: 
 Petition for a Nonimmigrant Worker Pursuant to Section 10 1(a)(15)(L) of the Immigration 
and Nationality Act, 8 U.S.C. fj 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. 
" - 
,,+---. 
~obbt P. Nernann, Director 
Administrative Appeals Office 
WAC 04 036 52950 
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 AAO will dismiss the appeal. 
The petitioner filed this nonimmigrant petition seeking to employ the beneficiary as its managing director as 
an L-1A nonimmigrant intracompany transferee to open a new office pursuant to section 101(a)(15)(L) of the 
Immigration and Nationality Act (the 
 petitioner is a California 
corporation and claims to be the affiliate of 
 located in San Juan Manila, 
The Philippines. The petitioner plans to 
The director denied the petition concluding that the petitioner did not establish that the beneficiary had been 
employed abroad in a primarily managerial or executive capacity. 
The petitioner filed an appeal in response to the denial. On appeal, counsel for the petitioner asserts that the 
director's denial was erroneous because the director "did not consider that the beneficiary possesses and or 
will perform the duties primarily designated to the managerial or executive capacity." In support of this 
contention, counsel submits a brief with additional arguments. 
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. 
 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 himher 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. 
WAC 04 036 52950 
Page 3 
(v) 
 If the petition indicates that the beneficiary is coming to the United States as a manager 
or executive to open or to be employed in a new office in the United States, the 
petitioner shall submit evidence that: 
(A) 
 Sufficient physical premises to house the new office have been secured; 
(B) 
 The beneficiary has been employed for one continuous year in the three year 
period preceding the filing of the petition in an executive or managerial capacity 
and that the proposed employment involved executive or managerial authority 
over the new operation; and 
(C) 
 The intended United States operation, within one year of the approval of the 
petition, will support an executive or managerial position as defined in 
paragraphs (l)(l)(ii)(B) or (C) of this section, supported by information 
regarding: 
(I) The proposed nature of the office describing the scope of the entity, its 
organizational structure, and its financial goals; 
(2) The size of the United States investment and the financial ability of the 
foreign entity to remunerate the beneficiary and to commence doing business in 
the United States; and 
(3) The organizational structure of the foreign entity. 
The primary issue in this matter is whether the beneficiary has been employed by the foreign entity in a 
primarily managerial or executive capacity. 
Section 101(a)(44)(A) of the Act, 8 U.S.C. $ 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 
WAC 04 036 52950 
Page 4 
(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. $ 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 malung; and 
(iv) 
 receives only general supervision or direction from higher level executives, the board 
of directors, or stockholders of the organization. 
In an undated letter from the petitioner which was included with the initial petition, the petitioner stated the 
following regarding the beneficiary's qualifications: 
[The beneficiary] is presently employed with this company as General Manager. He joined 
the organization in 1986 as Production Coordinator in charge of production, planning, control 
and materials inventory. After 2 years, he rose to the position of Production Manager 
responsible for supervising 150 employees in all functional areas, which included Carpentry, 
Sanding, Varnishing, Carving, Upholstery, and Finishing. In July 1989, after obtaining a 
degree in B.S. in Commerce (Management), from San Beda College, Manila, he was 
appointed as Company's General Manager responsible for the overall operations of the 
company. 
The petitioner further stated that the beneficiary had been largely responsible for the foreign entity's sales 
growth and that he actively participated in business and civic projects. 
The director was unsatisfied with the details of the beneficiary's foreign employment and consequently issued 
a request for evidence on May 20, 2004.' In the request, the director asked for a detailed overview of the 
beneficiary's duties abroad, including a copy of his payroll records to corroborate his employment as well as 
the number of employees abroad, their duties, and their job titles. In a response dated August 6, 2004, 
1 
 Prior to this request, the director had issued a request for additional evidence which pertained only to the 
U.S. employment of the beneficiary and the qualifying relationship between the petitioner and the foreign 
entity. Since the denial was not based on these issues, the AAO will not discuss this prior request for 
evidence. 
WAC 04 036 52950 
Page 5 
counsel for the petitioner submitted the requested payroll records and repeated the previously submitted 
description of duties. With regard to the employees of the foreign entity working under the beneficiary's 
supervision, the petitioner provided the following list: 
Sales representative 
Production Manager 
Production Coordinator 
Purchaser 
Designing Department 
Milling Department 
Carpentry Department 
Upholstery Department 
Sanding and Finishing Dept. 
Delivery Department 
-2 employees 
-1 employee 
-1 employee 
-1 employee 
-2 employees 
-1 employee 
-8 employees 
-3 employees 
-1 1 employees 
-2 employees 
With regard to the beneficiary's duties abroad the petitioner further stated: 
[The beneficiary] play[s] [a] key role in selection, hiring, training and supervision of all 
personnel; work[s] closely with company owners and head[s] production department in 
manufacturing furniture; delegate[s] various projects to office and production staff; 
evaluate[s] [the] company's personnel as to their abilities and production; schedule[s] and 
track[s] production status fi-om start to finish; supervise[s] the purchase and order of raw 
materials needed for production; increased production output by 50% to meet deadlines; 
inventory and quality control of products; oversee[s] and coordinate[s] work movement of all 
department[s]; suggest[s] new ways in order to improve the quality of the product, production 
work flow and customer care. 
On August 30, 2004 the director denied the petition. The director found that the totality of the evidence in the 
record was insufficient to establish that the beneficiary would be primarily employed in a managerial or 
executive capacity. In addition, the director concluded that the current corporate structure of the foreign 
entity was such that the beneficiary was merely a first line supervisor of non-professional employees, and not 
a managerial employee who supervised a subordinate staff of professional, supervisory, or managerial 
employees. In addition, the director concluded that the actual duties of the beneficiary could not be 
determined from the minimal evidence contained in the record. 
On appeal, counsel repeats his assertion that the petitioner has satisfied all regulatory requirements and 
introduces no new or independent evidence to establish the executive capacity of the beneficiary. Counsel 
merely restates its claims that the beneficiary has been working abroad in a managerial capacity and claims 
that this should be evident by virtue of the corporate documentation submitted for the foreign entity. 
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. 5 214.2(1)(3)(iv). The petitioner's description of the job 
WAC 04 036 52950 
Page 6 
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 or involved specialized knowledge. Id. 
The description of duties provided with the initial petition merely identified the three positions the beneficiary 
had held with the foreign entity since commencing his employment there in 1986. In this matter, however, it 
is only the beneficiary's most recent employment capacity that is relevant. See 8 C.F.R. $5 214.2(1)(3)(iii) 
and (iv). In response to the director's request for additional evidence, the petitioner provided a list of 
subordinate employees, most of whom were tradesmen or laborers, and supplemented the beneficiary's 
description of duties by claiming that he worked closely with the production department, supervised the 
purchase and order of raw materials, and scheduled and tracked production status. This description did little 
to describe the beneficiary's actual duties, nor did it describe the nature of the beneficiary's day-to-day tasks. 
Instead, it merely provided a generic description of the nature of his duties, and at times merely paraphrased 
the regulatory definitions. The AAO, upon review of the record of proceeding, concurs with the director's 
finding that it is more likely than not that the beneficiary was not employed in either a primarily managerial 
or executive capacity. First, the petitioner failed to specifically articulate the nature of the beneficiary's 
duties. While the petitioner did identify the overall role of the beneficiary in the workplace, it failed to 
specifically discuss what the beneficiary did during an actual workday. 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. 1 103 (E.D.N.Y. 1989), affd, 905 F.2d 4 1 (2d. Cir. 1990). 
The position description contained in the record did not articulate what a specific day in the role of the 
beneficiary would have consisted of. Instead, the descriptions merely provided a brief synopsis of the 
beneficiary's overall duties, e.g., he played "a key role in selection, hiring, training and supervision of all 
personnel" and he worked "closely with company owners and head[ed the] production department." It did not 
discuss or identify job-specific tasks or obligations the beneficiary would be required to perform. 
The statements regarding the beneficiary's duties abroad failed to discuss the details of the beneficiary's actual 
duties, nor did they clarify how the beneficiary was acting in a primarily managerial or executive capacity. On 
appeal, counsel appears to basically equate managerial and executive capacity with the beneficiary's title of 
general manager, yet fails to provide solid examples of how this capacity was actually attained. Conclusory 
assertions regarding the beneficiary's employment capacity are not sufficient. Merely repeating the language 
of the statute or regulations does not satisfy the petitioner's burden of proof. Fedin Bros. Co. v. Sava, at 1 108; 
Avyr Associates, Inc. v. Meissner, 1997 WL 188942 at *5 (S.D.N.Y .). Furthermore, without documentary 
evidence to support the claim, the assertions of counsel will not satisfy the petitioner's burden of proof. The 
unsupported assertions of counsel do not constitute evidence. Matter of Obaigbena, 19 I&N Dec. 533, 534 
(BIA 1988); Matter of Laureano, 19 I&N Dec. 1 (BIA 1983); Matter of Ramirez-Sanchez, 17 I&N Dec. 503, 
506 (BIA 1980). 
Furthermore, the record lacks evidence that the beneficiary oversaw a subordinate staff of professional 
employees. 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, 
professional, or managerial. See 5 10 1 (a)(44)(A)(ii) of the Act. 
WAC 04 036 52950 
Page 7 
Although the petitioner provided a lengthy list of subordinate employees, the majority of these employees are 
laborers, tradesmen, and/or sales persons who specialize in carpentry and the actual construction of the 
petitioner's furniture. Although two of the identified positions, namely, production manager and production 
coordinator, do not sound as if they are unskilled positions, the petitioner has not provided any evidence to 
establish that 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. 
The record as presently constituted is not persuasive in demonstrating that the beneficiary has been employed 
abroad in a primarily managerial or executive capacity. The petitioner was notified of the deficiencies in the 
petition and was provided with an ample period of time in which to supplement the record. The petitioner, 
however, failed to provide enough detail with regard to the beneficiary's foreign employment and the nature 
of his relationship with his alleged subordinates, and thus has failed to satisfy its burden of proof in these 
proceedings. Failure to submit requested evidence that precludes a material line of inquiry shall be grounds 
for denying the petition. 8 C.F.R. 9 103.2(b)(14). 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 professionals. See Matter of Church Scientology International, 19 I&N Dec. 593, 604 (Cornrn. 
1988). That is not the case in this matter. For this reason, the petition may not be approved. 
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. 8 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.