dismissed L-1A Case: Health Products

U.S. Department of Homeland Security 
20 Mass. Ave, N.W. Rm. A3042 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
File: SRC 03 202 51835 Office: TEXAS SERVICE CENTER Date: a 0 ;I! 2003 
Petition: Petition for a Nonirnmigrant 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. 
a 
~obert P. Wiemann, ~Gector 
Administrative Appeals Office 
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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 vice-president as an 
L- 1A nonimmigrant intracompany transferee pursuant to section 10 1 (a)( 15)(L) of the Immigration and 
Nationality Act (the Act), 8 U.S.C. 5 1101(a)(15)(L). The petitioner is a corporation organized in the State of 
Georgia that is engaged in the manufacturing, distribution and sales of herbavhealth products. The petitioner 
claims that it is the subsidiary o Ltd., located in- Korea. The 
beneficiary was initially granted a stay to open a new o ice in tates, and the 
petitioner now seeks to extend the beneficiary's stay for two more years. 
The director denied the petition, concluding that the petitioner did not establish that the beneficiary has been 
and will continue to be employed in the United States in a primarily managerial or executive capacity. 
The petitioner filed an appeal in response to the denial. On appeal, counsel for the petitioner contends that the 
director erred by ignoring the evidence submitted, and contends that the evidence contained in the record 
clearly established that the beneficiary qualified as both a manager and an executive. In support of these 
contentions, counsel submits a detailed brief. 
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. 
The regulation at 8 C.F.R. 5 214.2(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 (I)(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 this 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 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 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, counsel for the petitioner submitted a letter dated July 1, 2003, in which he discussed 
the beneficiary's role in the U.S. petitioner's organization. Counsel stated that the beneficiary's role was as 
follows: 
To set up operations here in the United States, [the beneficiary] has the sole responsibility 
and absolute discretion to negotiate all contractual agreements, retain and consult with legal 
representation, and engage banking and other financial resources. The beneficiary is also 
solely responsible for recruiting, interviewing, hiring, and training all personnel in the 
immediate future and all managerial and executive-level employees in the long-term. 
In addition, in a letter from the petitioner dated July 2, 2003, the petitioner stated: 
As well as continuing to oversee the operations of [the petitioner], [the beneficiary] is 
responsible for establishing the goals and policies of the business, procuring office space, 
hiring and training new personnel, developing new products and marketing strategies, 
establishing business contacts in the United States, and be responsible for the overall growth 
of the branch office. 
The petitioner further stated that the beneficiary hired three new employees, namely, a sales representative, a 
general manager, and a marketing director, to assist him in carrying out the objectives of the company. 
The director found the initial evidence submitted to be insufficient, and consequently issued a request for 
additional evidence on August 26, 2003. In the request, the director required counsel to submit a specific 
statement describing the U.S. employment of the beneficiary, including his position title, a list of all duties, 
the percentage of time devoted to each duty, the number of subordinate managers/supervisors or other 
employees who report directly to him, and a brief description of the job titles and duties of these employees. 
In the event that the beneficiary did not supervise other employees, the director requested details regarding 
the essential function the beneficiary managed. Furthermore, the director requested the qualifications 
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required to fill the beneficiary's position, his level of authority, and his position in the organizational hierarchy 
of the company. 
In a response dated October 13,2002, the petitioner, through counsel, addressed the director's query. Counsel 
stated that the beneficiary served as the vice president and treasurer, and provided the following breakdown of 
the beneficiary's duties: 
- Make decisions on accounting andfinancial matters 30% 
- Make plans for marketing and advertising 30% 
- Prioritize tasks and coordinate duties of employees 30% 
- Purchasing inventory 5% 
-Training, hiring, and dismissing employees 5% 
Counsel further indicated that the beneficiary oversaw four subordinate managers or supervisors, namely, an 
officer manager, a marketing manager, a sales person, and a marketing consultant. 
On March 19, 2004, the director denied the petition. The director, who reviewed the record to determine 
eligibility under both managerial and executive capacity, found that the evidence in the record failed to 
establish that the beneficiary would be functioning in a primarily managerial or executive capacity. 
Specifically, the director concluded that the beneficiary would be performing the day-to-day tasks of the 
organization, and further concluded that the beneficiary would not be supervising subordinate managers or 
supervisors. On appeal, counsel asserts that he "plainly mentioned" the beneficiary's qualifications, and that 
contrary to the director's findings, the beneficiary in fact functions in a primarily managerial and executive 
capacity. 
Upon review, counsel's assertions are not persuasive. Whether the beneficiary is a manager or executive 
employee turns on whether the petitioner has sustained its burden of proving that his duties are "primarily" 
managerial or executive. See sections lOl(a)(44)(A) and (B) of the Act. In this case, the initial description of 
duties was insufficient. The director consequently requested a more detailed list of all of the beneficiary's 
duties in the request for evidence. The petitioner's response, set forth above, provided a generalized and 
vague description of the beneficiary's duties, and failed to sufficiently address the director's specific request 
for a listing of all the beneficiary's 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. Snva, 724 F. Supp. 1 103, 1 108 (E.D.N.Y. 1989), affd, 905 F.2d 4 1 (2d. Cir. 1990). 
In addition to being too generalized, an additional problem is that the limited description of the beneficiary's 
duties identifies non-qualifying tasks that appear to constitute a majority of the beneficiary's duties. As 
discussed above, whether the beneficiary is a managerial or executive employee turns on whether the 
petitioner has sustained its burden of proving that his duties are "primarily" managerial or executive. See 
sections 101(a)(44)(A) and (B) of the Act. Here, the petitioner states that the beneficiary will devote thirty 
percent of his time to "makling] plans for marketing and advertising" and only five percent of his time to 
"training, hiring, and dismissing employees," which is, by definition, a managerial duty. In addition, the 
petitioner fails to explain why thirty percent of the beneficiary's duties will be devoted to these marketing 
marketing functions when the petitioner clearly has two qualified employees, namely, a marketing manager 
and a marketing consultant, to perform these duties. An employee who primarily performs the tasks 
necessary to produce a product or to provide services is not considered to be employed in a managerial or 
executive capacity. Matter of Church Scientology International, 19 I&N Dec. 593, 604 (Comm. 1988). 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 (Comm. 1988). 
The petitioner further asserts that the beneficiary is a manager andfor executive by virtue of his position title, 
experience, and associated duties, and his supervision of four subordinate managerial or supervisory 
employees. However, these claims cannot be substantiated for two reasons. First, the Quarterly Wage 
Reports for the period ending December 31, 2002 indicate that the beneficiary was the petitioner's sole 
employee during that time. By March 31, 2003, the petitioner employed the marketing consultant and the 
office manager. Since the beneficiary claims that 30% of his time is devoted to marketing activities, the role 
of the marketing consultant is somewhat uncertain. 
For the quarter ending June 30, 2003, the petitioner added the sales person to the list of employees, for a total 
of three subordinates. The petition in this matter was prepared and signed on July 1, 2003, yet there is no 
evidence that the marketing manager was employed by the petitioner at the time of filing. Although the 
quarterly return for the quarter ending September 30, 2003 indicates that she began working for the petitioner 
during that quarter, it is unclear whether she was actually employed by the petitioner prior to filing the 
petition. Thus, in examining the employment records versus the claims of counsel, it appears that the 
petitioner employed only three other employees in addition to the petitioner at the time of filing: the office 
manager, the sales person, and the marketing consultant. 
In Once again, upon review of the beneficiary's stated duties, it appears that a large portion of his time was 
devoted to making plans for marketing and advertising (30%), which appears to be the main task of the 
marketing consultant. Another large portion of the beneficiary's time was devoted to making decisions on 
accounting and financial matters (30%), another task seemingly delegated to the office manager. Apparently, 
since the sales person clearly was not employed on a full time basis during this period, it seems logical to 
conclude that the beneficiary was thus responsible for the sales in the store and organization of merchandise, 
particularly since he claimed to be responsible for purchasing inventory. An employee who primarily 
performs the tasks necessary to produce a product or to provide services is not considered to be employed in a 
managerial or executive capacity. Matter of Church Scientology International, 19 I&N Dec. at 604. 
More important, however, is the petitioner's claim that the beneficiary supervises subordinate managers or 
supervisors. 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 lOl(a)(44)(A)(ii) of the Act. 
The petitioner provided only minimal details with regard to the position titles and duties of the three 
employees listed in its quarterly return ending June 30, 2003. With regard to education, counsel's response to 
the director's request for evidence indicates that the office manager possesses a bachelor's degree in animal 
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science and an associate's degree in accounting, and it appears that the marketing consultant is a medical 
doctor. The sales person possesses a high school diploma. While such credentials are certainly impressive, 
the petitioner has not established that these employees actually require these advanced degrees to perform the 
duties of the positions they hold, 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 lOl(a)(44)(A)(ii) of the Act. 
In the present matter, the regulations provide strict evidentiary requirements for the extension of a "new 
office" petition and require CIS to examine the organizational structure and staffing levels of the petitioner. 
See 8 C.F.R. 3 214.2(1)(14)(ii)(D). The regulation at 8 C.F.R. $ 214.2(1)(3)(v)(C) allows the "new office" 
operation one year within the date of approval of the petition to support an executive or managerial position. 
There is no provision in CIS regulations that allows for an extension of this one-year period. If the business 
does not have sufficient staffing after one year to relieve the beneficiary from primarily performing 
operational and administrative tasks, the petitioner is ineligible by regulation for an extension. Other than the 
allegations of counsel, there is no clear evidence establishing that these employees relieve the beneficiary 
from performing non-qualifying duties. 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. Cornm. 1972). Thus, in the instant matter, the petitioner has not reached 
the point that it can employ the beneficiary in a predominantly managerial or executive position. 
Although the petitioner alleges that it will be expanding its business and hiring new employees, and that the 
beneficiary would have done so earlier except that compliance with various FDA requirements had taken 
"longer than expected," this claim is not persuasive for purposes of overcoming this denial. The petitioner 
must establish eligibility at the time of filing the nonirnrnigrant 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). 
For the reasons set forth above, the petitioner has failed to establish that the beneficiary's duties are primarily 
managerial or executive in nature. For this reason, the petition may not be approved. 
Beyond the decision of the director, it remains to be determined that the beneficiary's services are for a 
temporary period since the petitioner contends that the beneficiary is the co-owner of the foreign entity and 
that he owns a significant share of the U.S. entity. The regulation at 8 C.F.R. 5 214.2(1)(3)(vii) states that if 
the beneficiary is an owner or major stockholder of the company, the petition must be accompanied by 
evidence that the beneficiary's services are to be used for a temporary period and that the beneficiary will be 
transferred to an assignment abroad upon the completion of the temporary services in the United States. In 
the absence of persuasive evidence, it cannot be concluded that the beneficiary's services are to be used 
temporarily or that he will be transferred to an assignment abroad upon completion of his services in the 
United States. For this additional reason, the petition may not be approved. 
In addition, the petitioner has not furnished a comprehensive description of its organizational structure or its 
physical space requirements. Furthermore, the office lease furnished in support of the petition indicates that 
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the petitioner did not secure the premises until February 1, 2003, nearly six months after the petition was 
approved. Consequently, there is also a question of whether the petitioner was doing business during the 
previous year as required by 8 C.F.R. $214.2(1)(14)(ii)(B). The term "doing business" is defined in the 
regulations as "the regular, systematic, and continuous provision of goods andlor services by a qualifying 
organization and does not include the mere presence of an agent or office abroad." 8 C.F.R. 5 
214.2(1)(l)(ii)(H). For this additional reason, the petition may not be approved. 
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 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 
director's decision will be affirmed and the petition will be denied. 
ORDER: The appeal is dismissed.