dismissed L-1A Case: Hazardous Materials Response

U.S. Department of Homeland Security 
20 Massachusetts Ave., N.W., Rm. A3000 
Washington, DC 20529 
iktifybg data dsleted to 
pre~eat clearly unwarranted 
h& of paraYl privacy 
PUBLIC COPY 
U. S. Citizenship 
and Immigration 
Services 
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File: 
 LIN 06 090 5 15 15 
 Office: NEBRASKA SERVICE CENTER 
 Date: a 2 3 20% 
Petition: 
 Petition for a Nonimmigrant Worker Pursuant to Section 101 (a)(15)(L) of the Immigration 
and Nationality Act, 8 U.S.C. 9 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. 
. 
~obh~ ~iemann, Chief 
Administrative Appeals Office 
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Page 2 
DISCUSSION: The Director, Nebraska 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 employ the beneficiary in the position of response 
commander of a hazardous materials emergency response team 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 company and claims a qualifying 
relationship with the foreign employer, f Canada. The petitioner seeks to employ the 
beneficiary for a period of three years. 
The director denied the petition concluding that the petitioner did not establish that (1) the beneficiary will be 
employed in the United States in a primarily managerial or executive capacity; or (2) the beneficiary has been 
employed by the foreign entity 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, the petitioner asserts that the beneficiary's duties 
both overseas and in the United States are primarily those of a manager. In support of this assertion, the 
petitioner 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 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. 9 214.2(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 himiher to perform the intended 
services in the United States; however, the work in the United States need not be the 
LIN 06 090 51515 
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same work which the alien performed abroad. 
The first issue in this matter is whether the beneficiary will be employed by the United States entity in a 
primarily managerial capacity.' 
Section 10 1 (a)(44)(A) of the Act, 8 U.S.C. 3 1 101 (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. 
In the letter dated January 27, 2006, appended to the initial Form 1-129 petition, the petitioner described the 
beneficiary's prospective position in the United States as follows: 
[The petitioner] would like to qualify [the beneficiary] to render intermittent managerial 
service as the Response Commander, to oversee on-location emergency services that are 
being carried out by the Technical Specialists of in [sic] the Emergency Response Team 
(ERT) on an intermittent basis. The average time of the ERT's service needed in the United 
States will only be approximately 10-30 days a year (3 to 6 times a year and each will last 
approximately 3 to 5 days). The ERT is a specially trained in-house service team based in 
Canada with [the foreign employer]. The ERT is called to respond to emergency andfor crisis 
situations during the transportation of [the petitioner's] own highly hazardous chemical 
products, such as Sulphuric Acid and Sulphur Dioxide, to the United States. 
 [The 
beneficiary] is the Response Commander of the Company's ERT. Thus, he will need to 
manage the performance of the emergency response services in the United States when 
needed. 
'Because the petitioner is seeking to classify the beneficiary as a manager and not as an executive, the AAO 
will restrict its analysis to whether the beneficiary will be employed primarily in a managerial capacity. 
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The petitioner further explained in the letter that the ERT consists of "a Base Commander, Response 
Commanders and Technical Specialists, divided into 4 shift teams for round-the-clock service. Each of the 
ERT shift teams is led by a Resvonse Commander who supervises about 4-5 Technical Specialists to ensure 
the emergency services are verfonned in a safe and effective manner." Therefore, there are four response 
commanders, including the beneficiary. 
Finally, the petitioner described the beneficiary's job duties in the United States as follows: 
The Response Commander is the lead person in the ERT's on location service team and 
functions at a senior level with respect to managing and directing his team of Technical 
Specialists to provide and perform emergency services. The Response Commander oversees, 
manages and designates various assignments and tasks to his Technical Specialists team, 
ranging from 4 to 5 depending on the magnitude of the situation, to properly perform the 
assigned tasks in controlling and handling the emergency situation, with the ultimate 
objective of minimizing casualties and property losses. The ERT's Technical Specialists 
team assigned to the United States have already been granted L-1B status. 
While responding to emergency conditions in the United States, the Response Commander 
will be responsible for managing and controlling all field response and relief activities that 
are performed and carried out by the Technical Specialists. He will also provide direction 
and manage the communications link with the Base Commander. He will evaluate the nature 
and magnitude of the emergencies, and plan and designate appropriate tasks for the Technical 
Specialists to carry out in order to respond to the emergency situations. He will make 
arrangements for other related special personnel andlor equipment for assistance. 
As the Response Commander of the [ERT's] Technical Specialists, and while responding to 
emergency conditions in the United States, [the beneficiary] will be responsible for the 
following: 
Organizing and directing the team's (Technical Specialists) performances and their 
participation throughout the emergency action, with authority to act on behalf of the 
Company at the emergency site including all dealings with other agencies, 
authorities, public and media; 
. 
 Keeping the Base Commander up-to-date with information as required during 
emergencies; 
. 
 Planning and determining methods, modes and logistics to be followed by the 
Technical Specialists in order for them to provide the most suitable and expeditious 
response services; 
Ensuring arrangements are made to cover all aspects of the specific nature of each 
emergency incidents [sic]; 
Consulting with Technical Advisors and providing telecommunications to those first 
arrived on scene (e.g. First Responders - Fire Fighters) regarding hazards and 
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appropriate steps that should be taken at the scene to preserve public safety; 
Alerting and arranging team members (Technical Specialists) and determine and 
arrange for specialized equipment that is necessary for the specific incident to reduce 
or eliminate hazardous contaminations and casualties; and 
Supervising the performance of 4-5 Technical Specialists to ensure all the Company's 
in-house safety and response procedures are followed throughout the incident in a 
safe and effective manner. 
The petitioner also provided an organizational chart for the ERT confirming that the beneficiary is one of four 
response commanders who report to a base commander and who supervise technical specialists. 
On February 24, 2006, the director requested additional evidence regarding the beneficiary's purported 
managerial duties. 
In response, the petitioner provided a letter dated April 18, 2006 in which it explained, inter alia, that the 
beneficiary's "intermittent duties in the United States are in a 'function' managerial capacity" and in which it 
detailed the duties of the Technical Specialists, the performance of which allegedly relieve the beneficiary of 
performing the routine duties of the ERT. 
On May 18, 2006, the director denied the petition concluding that the beneficiary will be a first-line 
supervisor of non-professional employees and that the petitioner failed to establish that the beneficiary 
manages an essential function of the organization. 
On appeal, the petitioner asserts that the beneficiary will manage an "essential function" in the United States 
as the response commander, the function being the "emergency response to hazardous/chemical accidents." 
The petitioner further asserts that the beneficiary's duties will involve only "decision making and 
management" and that all of the actual duties will be performed by the technical specialists, not the 
beneficiary. 
Upon review, the petitioner'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. § 214.2(1)(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 has failed to prove that the beneficiary will act in a "managerial" capacity by managing an 
"essential function" of the organization. The term "function manager" applies generally when a beneficiary 
does not supervise or control the work of a subordinate staff but instead is primarily responsible for managing 
an "essential function" within the organization. See section 101(a)(44)(A)(ii) of the Act. The term "essential 
function" is not defined by statute or regulation. However, to allow the broad application of the term 
"essential function" to include any minor or low-level function within a business would render the term 
meaningless. The term "essential" is defined as "inherent" or "indispensable." Webster's II New College 
Dictionary 384 (2001). 
 Accordingly, the petitioner must establish that the function is inherent and 
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indispensable to the business rather than a low-level collateral task that is superfluous to the company's 
essential operations. 
In this matter, the petitioner has alleged that the beneficiary will manage an "essential function" when he 
''manages'' an emergency response to a hazardous material or chemical accident in the United States. As 
explained in the record, the beneficiary is one of four response commanders employed and trained by the 
foreign entity. Each response commander is assigned to one of four shifts, and each shift has four to five 
technical specialists who report to the response commander. The ERT (Emergency Response Team) is 
ultimately led by a single base commander to whom all four shift response commanders, including the 
beneficiary, report. 
In view of the above, the beneficiary will not manage an "essential function" of the organization. According 
to the record, the base commander likely manages the "essential function" as described by the petitioner as the 
leader of the ERT, although the record is not clear on this point, and the management of the essential function 
may actually be at a higher level within the organization andlor the "essential function" may encompass safety 
and emergency functions broader than those addressed by the ERT. Regardless, the beneficiary's low-level 
role as one of four shift supervisors who supervises the occasional as-needed clean up of hazardous releases is 
certainly not the management of an "essential function." The beneficiary's job is no more essential to the 
organization than the technical specialists' management of their individual clean up activities. Arguably, 
every first-line supervisor, indeed every employee, manages his or her own "function" within an organization 
and could claim that this hnction is "essential." However, as explained above, such a broad reading of the 
statute would render it meaningless. Therefore, as the petitioner has not established that the beneficiary will 
manage an essential function of the organization, the beneficiary appears to be a first-line supervisor who 
cannot be classified as a managerial employee. 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. 101(a)(44)(A)(iv) of the Act; see also Matter of Church Scientology Intl., 19 
I&N Dec. 593,604 (Comm. 1988). 
Moreover, even assuming the beneficiary's managed function could be classified as essential, the job 
description provided for the beneficiary is insufficient to prove that he primarily manages this function. If a 
petitioner claims that the beneficiary is managing an essential function, the petitioner must furnish a written 
job offer that clearly describes the duties to be performed in managing the essential function, i.e., identify the 
function with specificity, articulate the essential nature of the function, and establish the proportion of the 
beneficiary's daily duties attributed to managing the essential function. See 8 C.F.R. $ 214.2(1)(3)(ii). In 
addition, the petitioner's description of the beneficiary's daily duties must demonstrate that the beneficiary 
manages the function rather than performs the duties related to the function. In this matter, the petitioner has 
not provided evidence that the beneficiary manages an essential function. The petitioner's vague job 
description fails to document what proportion of the beneficiary's duties would be managerial functions and 
what proportion would be non-managerial. While the petitioner repeatedly asserts that all of the day-to-day 
duties would be performed by the technical specialists, it is simply not credible that the beneficiary would not 
perform any non-managerial duties during an emergency response. Absent a clear and credible breakdown of 
the time to be spent by the beneficiary performing his duties, the AAO cannot determine what proportion of 
his duties would be managerial, nor can it deduce whether the beneficiary will be primarily performing the 
duties of a function manager. See IKEA US, Inc. v. U.S. Dept. of Justice, 48 F. Supp. 2d 22, 24 (D.D.C. 
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1999). Going on record without supporting documentary evidence is not sufficient for purposes of meeting 
the burden of proof in these proceedings. Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. 
Comm. 1972). 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), ard, 905 F.2d 41 (2d. 
Cir. 1990). 
Accordingly, the petitioner has not established that the beneficiary will be employed in a primarily managerial 
capacity as required by 8 C.F.R. 8 214.2(1)(3)(ii). 
The second issue in this appeal is whether the beneficiary has been employed by the foreign entity in a 
primarily managerial capacity. 
In the letter dated January 27, 2006, appended to the initial Form 1-129 petition, the petitioner described the 
beneficiary's position in Canada as follows: 
[The beneficiary] became [the foreign entity's] Fire Captain (Lieutenant) in July 2002 and has 
held this managerial position until presently. He is responsible for maintaining the safety 
operation of [the foreign entity's] smelter and refinery and its 1,300 employees who work at 
the smelter and refinery location. The position leads and supervises a staff team of up to 30 
consisting of fire-fighters, safety and maintenance crews and laborers. In specific, [the 
beneficiary] has direct management authority over about 10 firefighters on a regular shift. In 
the event of emergency situations, his subordinate firefighters can be increased to up to 20. 
In addition to the firefighters, [the beneficiary] also manages the maintenance crew, 
consisting of 2 pipefitters and 2 electricians. The maintenance crew is supported by in-house 
laborers and outside contract labor services. Depending on the scale of the eventljob, the 
supporting laborers range fi-om 4 to 10 persons. The fire-fighters and the maintenance crews 
are responsible for performing site safety, which includes maintenance works and emergency 
prevention and response services. [The beneficiary] assigns job tasks to these crews on the 
maintenance of site safety such as buildings [sic] structures, fire extinguishers, SCBA, 
emergency equipment and Dispatcher duties, etc. 
 Thus, as the Fire Captain, he has 
discretionary authority in managing and ensuring the safety practices and conditions of the 
Company's smelter and refinery to avoid accidents, which is an extremely important function. 
The proper and effective management of the site environment and safety measures will 
eliminate accidents and save lives. [The beneficiary] oversees and directs the performance of 
this essential function by leading a team of the [foreign entity's] in-house Fire Fighters to 
perform emergency and rescue services utilizing his management skills as well as his 
knowledge of the [foreign entity's] rescue and searching procedures should accidents occur. 
He also determines the appropriate fire and hazardous chemicals extinguishing and rescue 
methods and equipment that needs to be used according to the specific nature of the 
accidents, such as fire apparatus pumps, portable trailer pumps, various mobile platforms and 
lifts. He manages the proper uses of these [sic] equipment and procedures that are performed 
by the internal fire fighters. He functions in a senior level with respect providing safety 
services to the [foreign entity's] smelter and refinery. He is familiar with the [foreign entity's] 
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various in-house systems that are specifically designed and installed within the smelter and 
refinery, such as the sprinkler suppression systems, dye pipe systems, wet systems, delugue 
[sic] systems and pre-action systems to determine the appropriate methods and procedures to 
be used for accident prevention as well as for taking care of accidents when they occur. 
The petitioner also provided an organizational chart showing that the beneficiary is one of three fire captains, 
that he reports to a single fire chief, and that he, along with the other fire captains, supervise firefighters and 
maintenance workers. 
The petitioner also explained in its letter dated January 27, 2006 that the beneficiary serves as a response 
commander of the ERT in Canada. The duties are materially identical to his proposed duties in the United 
States as these relate to actual emergencies. However, the petitioner also provided a summary of the 
beneficiary's Canadian duties before and after an emergency. The petitioner does not explain what percentage 
of the beneficiary's time is dedicated to his Canadian response commander role when compared to his fire 
captain role, although the gist of the petitioner's evidence is that the fire captain role is the beneficiary's 
primary position with the foreign entity. 
On February 24, 2006, the director requested additional evidence regarding the beneficiary's purported 
managerial duties. 
In response, the petitioner provided a letter dated April 18, 2006 in which it clarified its position on the 
beneficiary's classification: "Please note that [the beneficiary's] intermittent duties in the United States are in 
a 'function' managerial capacity, and while in Canada, his full time duties and position is the 'traditional' line 
manager capacity." The petitioner further supported this assertion as follows: 
Reporting to the Operating Manager, Property Services, the [beneficiary] supervises the shift 
operation of the Emergency Services section to provide effective firefighting, emergency 
chemical response, first aid, ancillary services, and directs the day-to-day operation of the 
power and water distribution systems. 
[The beneficiary] supervises a crew of about 12-30 union personnel consisting of Protective 
Services Officers (Firemen) and trade technicians. In specific, [the beneficiary] directly 
supervises the Protective Services team consisting of up to 10 Firemen on a regular shift and 
up to 20 in the event of emergencies. In addition to the Firemen, he also manages 4 trade 
technicians (2 fitters and 2 Electricians) who are first line supervisors. These trade 
technicians will follow instructions given by [the beneficiary] to plan and perform the lay out, 
installation, maintenance, assembly, inspection and repair of piping, steaming and related 
electrical systems and components. As outlined in the in-house job description, these Fitters 
and electricians supervise Apprentices and trades helpers (collectively "laborers") who then 
perform the actual on location repair and maintenance works according to the plans. 
The petitioner also provided further details regarding the beneficiary's job duties, but did not specify how 
much of his time is spent supervising the alleged "first line" supervisors, i.e., the electricians and fitters. 
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Finally, the petitioner provided in-house job descriptions for both the beneficiary and the subordinates who 
are alleged to be first-line supervisors. While the job descriptions confirm that the electricians and fitters are 
assisted by others, the petitioner fails to reveal how much time is spent by these employees supervising or 
managing others. 
On May 18, 2006, the director denied the petition concluding that the beneficiary is a first-line supervisor of 
non-professional employees. Specifically, the director determined that the supervised employees are not 
professional, supervisory, or managerial, and that the petitioner failed to prove that the electricians and fitters 
are truly functioning in supervisory or managerial capacities. 
On appeal, the petitioner asserts that the director erred and that it has established that the beneficiary manages 
other supervisory or managerial employees. The petitioner also expands its argument and asserts that the 
record establishes that the beneficiary, as a fire captain, also manages an "essential function" in the 
organization. 
Upon review, the petitioner's assertions are not persuasive. 
Once again, 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)(ii) and (iv). 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. 
In this matter, the job descriptions and organizational charts provided do not establish that the beneficiary will 
supervise and control the work of supervisory, managerial, or professional employees. 
First, the job descriptions for the beneficiary's subordinate employees fail to establish that these employees 
are truly functioning as supervisory, managerial, or professional employees. While these employees 
undoubtedly work with less experienced employees or laborers, and may at times direct their work, this does 
not automatically establish that they are supervisory or managerial employees. The job descriptions provided 
by the petitioner, including the in-house job descriptions provided in response to the request for evidence, 
emphasize the electricians' and fitters' technical skills and not their supervisory or managerial roles. 
Therefore, as the petitioner has not established that any of the beneficiary's subordinates are professional, 
managerial, or professional employees, it has not established that the beneficiary is employed in a primarily 
managerial capacity. 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. at 604. 
Second, even assuming that the electricians and fitters are managerial or supervisory employees, the petitioner 
has not established that the beneficiary is primarily engaged in managing these employees. While managing 
these employees may be a part of the beneficiary's job, unless the beneficiary is primarily engaged in 
performing these, or other, managerial duties, he cannot be considered to be employed in a managerial 
capacity. In this matter, the petitioner has not established that the beneficiary is primarily engaged in 
managing the electricians and fitters or in performing any other managerial duties. An employee who 
"primarily" performs the tasks necessary to produce a product or to provide services is not considered to be 
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"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 International, 19 I&N Dec. at 604. 
Finally, the petitioner has not established that the beneficiary manages an "essential function" of the 
organization as a "fire captain." As explained in the record, the beneficiary is one of three shift fire captians, 
all of whom report to a fire chief and/or the operating manager of property services (the two organizational 
charts provided by the petitioner provide conflicting information regarding the supervision of the fire 
captains). Regardless, similar to the beneficiary's prospective role in the United States, the beneficiary's low 
level role as one of three shift supervisors is certainly not the management of an "essential function." The 
beneficiary's job is no more essential to the organization than the fire fighters' management of their individual 
functions. As explained above, every first-line supervisor, indeed every employee, could argue that he or she 
manages his or her own "function" within an organization and could claim that this function is "essential." 
However, such a broad reading of the statute would render it meaningless. Therefore, as the petitioner has not 
established that the beneficiary will manage an essential function of the organization, the beneficiary appears 
to be a first-line supervisor who cannot be classified as a managerial employee. 
Accordingly, the petitioner has not established that the beneficiary is employed abroad in a primarily 
managerial capacity as required by 8 C.F.R. 5 214.2(1)(3)(iv). 
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. 
 1361. Here, that burden has not been met. Accordingly, the 
appeal will be dismissed. 
ORDER: The appeal is dismissed.