dismissed L-1A Case: Herbal Medicine

U.S. Department of Homeland Security 
20 Massachusetts Ave., N.W., Rm. 3000 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
Services 
 c 
File: WAC 06 082 5 1 156 Office: CALIFORNIA SERVICE CENTER Date: &N 1 g .al 
IN RE: Petitioner: 
Beneficiary: 
Petition: 
 Petition for a Nonimmigrant Worker Pursuant to Section 10 1 (a)(15)(L) of the Immigration 
and Nationality Act, 8 U.S.C. 8 1 101(a)(15)(L) 
ON 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. 
obert P. Wiemann, C 
Administrative Appeals Office 
WAC 06 082 51156 
Page 2 
DISCUSSION: The Director, California 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 manager 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. 9 1 10 1 (a)(15)(L). The petitioner, a California corporation, is engaged in the provision 
of Asian herbal medicine and treatment services. The petitioner states that it is a subsidiary of 
- 
Ltd., located in Seoul, Korea. The beneficiary was initially granted one year in L-1A status to open a new 
office in the United States, and the petitioner now seeks to extend the beneficiary's stay for three additional 
years. 
The director denied the petition concluding that the petitioner did not establish that the beneficiary would be 
employed in a primarily managerial or executive capacity with the United States entity. 
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, counsel for the petitioner disputes the director's 
decision and states that the beneficiary performs primarily managerial duties in the United States and is 
responsible for managing a subdivision of the petitioning company as the executive officer of the petitioner's 
Buena Park, California facility. Counsel submits a brief and additional evidence in support of the appeal. 
To establish eligibility for the L-1 nonimmigrant visa classification, the petitioner must meet the criteria 
outlined in section 10 1 (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. 5 214.2(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 
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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. 
The regulation at 8 C.F.R. tj 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 (l)(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 managerial or executive 
capacity; and 
(E) 
 Evidence of the financial status of the United States operation. 
The sole issue addressed by the director is whether the petitioner established that 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. tj 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 
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(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 10 1 (a)(44)(B) of the Act, 8 U.S.C. 5 1 101(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 fi-om higher level executives, the board 
of directors, or stockholders of the organization. 
The nonimmigrant petition was filed on January 18, 2006. The petitioner stated on Form 1-129 that the 
beneficiary would serve as a "manager" with responsibility to "manage customer service and research and 
development." On the L classification supplement to Form 1-129, the petitioner described the beneficiary's 
proposed duties as: "Analyze symtoms [sic] of patients to treat them and pescribe [sic] to them herbal 
medicine. Participate in operation of company with budgeting, planning and employee supervision." In an 
attachment to Form 1-129, the petitioner stated that the beneficiary will: "Manage customer service and 
supervise employees. Research and develop herbal medicine for various types of ailments. Analyze symptoms 
of patients to treat patients and prescribe herbal medicine." The petitioner stated on Form 1-129 that the 
beneficiary would work at the petitioner's Los Angeles, California location. 
In a letter dated January 17,2006, the petitioner described the beneficiary's duties as follows: 
[The beneficiary] has been working as a manager of [the petitioner] since its inception. Her 
main responsibilities include treating and prescribing herbal medicine to patients, research 
and develop new or improved herbal medicine, make recommendations to other oriental 
medicine doctors as to the results of her research and new development, and participate in the 
operation of the business with budgeting, planning and supervision of employees. . . . For 
both the Parent and [the petitioner], [the beneficiary] has been instrumental in coming up with 
and implementing better and upgraded methodologies and products for treating patients, and 
consequently in instilling in the minds of patients and the general public positive images of 
them. Her contributions have been translated into growth and success of both companies. She 
also has supervised the staff assigned to research and development, and to customer service. 
The petitioner also referenced the beneficiary's resume, on which she describes her current role as follows: 
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Page 5 
Doctor of Oriental Medicine 
Gather data and information of patient symptoms and analyze them to treat and prescribe to 
patients herbal medicine. Provide consultation to patients as to general health issues. 
Participate in operation of company with respect to budgeting, planning and employee 
supervision. 
The petitioner also submitted evidence that the beneficiary is licensed to practice acupuncture in the State of 
California. 
The petitioner provided an organizational chart for the U.S. company, on which the beneficiary is identified as 
one of three oriental medicine physicians working at the petitioner's Los Angeles, California clinic, and as the 
sole employee of the petitioner's Buena Park, California clinic. The petitioner stated in its supporting letter 
that its Buena Park location was currently preparing for "next year's opening." The organizational chart does 
not depict any employees subordinate to the company's clinic physicians. 
On an attached employee list, the petitioner provided the names, job titles and educational qualifications for 
all eleven of its employees. The beneficiary is identified as one of four oriental physicians, and the other 
employees include an executive vice presidentlchief financial officer, a clinic manager, an assistant manager, 
a pharmacy manager, and three clerks. The petitioner indicated that its clinic oriental physicians are 
responsible for "practicing oriental medicine, consulting and treating patients and prescribing herbal medicine 
to them." According to the employee list and accompanying job descriptions, the petitioner's clinics also 
employ clerks, who are supervised by a clinic manager. 
The petitioner provided copies of its California Form DE-6, Quarterly Wage and Withholding Report for the 
fourth quarter of 2005, which confirmed the employment of twelve workers as of December 3 1, 2005. The 
AAO observes that the beneficiary's monthly salary of $3,500 is comparable to that paid to the other three 
employees identified as "oriental physicians" on the petitioner's organizational chart and employee list. 
The director denied the petition on January 26, 2006, concluding that the petitioner had not established that 
the beneficiary would be employed in a primarily managerial or executive capacity under the extended 
petition. The director observed that the position description provided indicated that the beneficiary will 
perform non-managerial customer service duties, rather than working in a primarily managerial or executive 
capacity. The director further noted that although the petitioner indicated that the beneficiary will supervise 
employees, the petitioner's organizational chart shows the beneficiary at the bottom of the company's 
organizational chart and indicates no subordinate employees beneath her. Thus, the director concluded that 
the beneficiary will not supervise professional employees. The director further determined that the 
beneficiary would not be primarily managing the organization, or a department, subdivision, function or 
component of the organization, but, rather, would be directly providing the petitioner's services. 
On appeal, counsel for the petitioner asserts that the beneficiary has been functioning in a managerial capacity 
as defined by the regulations in that she supervises other professionals, manages the company's Buena Park 
subdivision, and manages the essential function of providing oriental medicine services to patients. Counsel 
states that the beneficiary's primary responsibilities are "management of customer service and supervision of 
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employees," "research and development of new or improved herbal medicine," "make recommendations to 
other oriental medicine physicians employed by [the petitioner] as to the results of her research," and 
"participate in the operation of the business with budgeting and planning." Counsel asserts that the 
beneficiary's responsibilities were fully described in her resume and in the petition itself, but notes that the 
beneficiary's responsibility for the operation of the company's Buena Park subdivision "was not fully 
explained in the petition." 
Counsel contends that the director erroneously determined that the beneficiary will not supervise professional 
employees. Counsel emphasizes that the organizational charts show that the management of the U.S. 
operations, including the office and clinics, is the responsibility of the "local management team" and 
emphasizes that the beneficiary was transferred to the United States from the foreign entity as part of this 
team in 2005. Counsel states that the petitioner's organizational chart shows that the beneficiary has sole 
responsibility for the petitioner's Buena Park, California subdivision, and asserts that the beneficiary is in fact 
the chief executive officer, chief financial officer and secretary of the subdivision, which is operated by 
I' - 
 --. 
 Inc." Counsel states that the beneficiary "has the authority to exercise discretion 
over the day-to-day operation of the entity, to hire and fire personnel to be employed at the Buena Park 
subdivision, and she is responsible for supervision over other oriental medicine physicians at the Buena Park 
subdivision." Counsel further indicates that the beneficiary also budgets and plans for the division, and that, 
while she also treats and prescribes herbal medicine to patients, this responsibility requires only 30 percent of 
her time and is not her primary responsibility. 
Counsel disputes the director's determination that the beneficiary will perform customer service duties, 
emphasizing that the petitioner stated that the beneficiary will "manage customer service and supervise 
employees." Counsel states that management of customer service within the petitioner's organization 
"inevitably involves the management and supervision of oriental medicine physicians who are professionals." 
Counsel asserts that the beneficiary "plans and coordinates schedules of oriental medicine physicians, 
determines which physicians must attend to which patient, supervises over what herbal medicine is being 
prescribed to patients, and regularly evaluates performance of the oriental medicine physicians and 
pharmacists." Counsel contends that the beneficiary manages the essential function of providing oriental 
medicine services to patients and "does not just primarily perform tasks necessary to provide services." 
Finally, counsel asserts that the regulation at 8 C.F.R. § 214.2(1)(l)(ii)(B) does not preclude the beneficiary 
from performing the services of the company, provided that her duties are primarily of a managerial or 
executive nature. Counsel therefore contends that the fact that the beneficiary also treats and prescribes herbal 
medicine to patients must not be a factor in denying the petition. Counsel asserts that the beneficiary's 
"practice of oriental medicine sets an example of high quality service and leads to the promotion of morale of 
other medicine doctors." 
In support of the appeal, the petitioner submits a statement of information for 
Inc.," filed with the California Secretary of State on September 1, 2005, which identitles the beneficiary as the 
chief executive officer, secretary, chief financial officer and sole director of the company. The petitioner also 
submits an action by unanimous written consent of the board of directors of the petitioner, dated June 5,2005, 
in which the directors stated that a new company has been organized to expand its operations to Buena Park, 
WAC 06 082 51156 
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California, and elected the beneficiary to "operate the new company" and to serve as its presidentICE0, 
secretary and chief financial officer. 
Upon review, counsel's assertions are not persuasive. The petitioner has not established that the beneficiary 
will be employed in a primarily managerial or executive capacity under the extended petition. 
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. €j 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. 
Here, the petitioner claims that the beneficiary will be employed in a managerial capacity. However, as noted 
by the director, the evidence submitted in support of the petition indicated that the beneficiary would 
primarily perform the services of the organization, rather than performing managerial duties. The petitioner 
stated in its January 17, 2006 letter that the beneficiary's "main responsibilities include treating and 
prescribing herbal medicine to patients, research and develop new or improved herbal medicine." The 
petitioner did not clarify why providing medical services or research and development tasks should be 
considered managerial duties consistent with the definition at section 101(a)(44)(A) of the Act. Although the 
petitioner indicated on Form 1-129 that the beneficiary is employed as a "manager," the company's employee 
list and organizational chart identify the beneficiary as an oriental medicine physician who is responsible for 
consulting and treating patients and prescribing medicine. It is incumbent upon the petitioner to resolve any 
inconsistencies in the record by independent objective evidence. Any attempt to explain or reconcile such 
inconsistencies will not suffice unless the petitioner submits competent objective evidence pointing to where 
the truth lies. Matter of Ho, 19 I&N Dec. 582, 59 1-92 (BIA 1988). The AAO notes that no other duties are 
attributed to the petitioner's physicians, and the petitioner made no distinction between the duties performed 
by the beneficiary and those performed by the three other physicians on the employee list. 
Although the petitioner and counsel reference the beneficiary's resume as supportive of her employment in a 
managerial capacity, the beneficiary's resume indicates that her job title is "Doctor of Oriental Medicine," and 
that her duties including gathering data and information of patient symptoms, providing consultation with 
respect to general health issues, and treating and prescribing herbal medicine to patients. Overall, the 
petitioner's statements, the employee list, the organizational chart, and the beneficiary's resume indicate that 
the beneficiary's primary duties are to provide the petitioner's patients with medical diagnosis and treatment 
services, not to manage the organization or a subdivision of the organization, other professional, supervisory 
or managerial employees, or an essential function of the organization. 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 10 l(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 'I, 19 I&N Dec. 593, 604 (Comm. 1988). 
The AAO acknowledges the petitioner's statements on Form 1-129 that the beneficiary would "manage 
customer service and research and development," and that the beneficiary will "participate in" budgeting, 
planning and employee supervision. " While these statements suggest that the beneficiary may perform some 
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managerial duties, the petitioner failed to substantiate its claim that the beneficiary would actually supervise 
employees engaged in providing customer service or performing research and development activities, and in 
fact stated that the beneficiary would be directly treating patients and researching and developing new 
products. The actual duties themselves 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 4 1 (2d. Cir. 1990). As noted by the director, 
the petitioner's organizational chart indicates that the beneficiary is one of three physicians employed at the 
company's Los Angeles, California clinic, and there is no evidence that she would supervise the other 
physicians or the other clinic employees. Going on record without supporting documentary evidence is not 
sufficient for purposes of meeting the burden of proof in these proceedings. Matter of Soffici, 22 I&N Dec. 
158, 165 (Cornm. 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm. 
1972)). The beneficiary's role in budgeting and planning has not been explained, however, it is evident from 
the record that these duties, even if managerial in nature, are not among the beneficiary's primary 
responsibilities. 
The definitions of executive and managerial capacity have two parts. First, the petitioner must show that the 
beneficiary performs the high-level responsibilities that are specified in the definitions. Second, the petitioner 
must prove that the beneficiary primarily performs these specified responsibilities and does not spend a 
majority of his or her time on day-to-day functions. Champion World, Inc. v. INS, 940 F.2d 1533 (Table), 
1991 WL 144470 (9th Cir. July 30, 1991). Here, the petitioner has not established that the beneficiary 
performs the high-level responsibilities contemplated by the statutory definition of managerial capacity, or 
that her time is not primarily spent on the day-to-day functions of the organization. 
While counsel correctly states that performing non-qualifying tasks necessary to produce a product or service 
will not automatically disqualify the beneficiary as long as those tasks are not the majority of the beneficiary's 
duties, the petitioner still has the burden of establishing that the beneficiary is "primarily" performing 
managerial or executive duties. Section 101(a)(44) of the Act. In the present matter, as discussed above, the 
majority of the beneficiary's tasks do not fall directly under traditional managerial duties as defined in the 
statute. 
Counsel's arguments on appeal are based on new claims that the beneficiary devotes the majority of her time 
to managing the company's "Buena Park subdivision," as its chief executive officer. Counsel provides no 
explanation as to why the petitioner neglected to mention the beneficiary's management of this subdivision at 
the time the petition was filed. On appeal, a petitioner cannot offer a new position to the beneficiary, or 
materially change a position's title, its level of authority within the organizational hierarchy, or the associated 
job responsibilities. The petitioner must establish that the position offered to the beneficiary when the petition 
was filed merits classification as a managerial or executive position. Matter of Michelin Tire Corp., 17 I&N 
Dec. 248, 249 (Reg. Comm. 1978). A petitioner may not make material changes to a petition in an effort to 
make a deficient petition conform to CIS requirements. See Matter of Izummi, 22 I&N Dec. 169, 176 (Assoc. 
Comm. 1998). 
Furthermore, the petitioner specifically stated in its January 17, 2006 letter that its Buena Park office was not 
yet operational and that the company was currently performing "interior work for next year's opening." Even 
if the beneficiary will eventually operate the office, the petitioner must establish eligibility as of the date of 
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filing. A visa petition may not be approved based on speculation of future eligibility or after the petitioner or 
beneficiary becomes eligible under a new set of facts. See Matter of Michelin Tire Corp., supra. Further, the 
petitioner has not provided evidence that the company that will operate the Buena Vista office, 
Inc." is a qualifying organization for the purposes of this visa application, 
suggests that it may be a subsidiary of the petitioning company. Again, going on record without supporting 
documentary evidence is not sufficient for purposes of meeting the burden of proof in these proceedings. 
Matter of SofJici, 22 I&N Dec. at 165. 
Regardless, as there is no evidence that the petitioner's Buena Park, California office was staffed or 
operational as of the date of filing the petition, the beneficiary's prospective duties with the new location need 
not and will not be considered. Since the majority of counsel's arguments on appeal focus on the beneficiary's 
authority to manage the operations and employees of this new office, the petitioner has not submitted 
evidence on appeal to overcome the director's determination that the beneficiary's primary duties as of the 
date of filing were providing medical services to the petitioner's clients as an oriental medicine physician 
based at the petitioner's Los Angeles, California clinic. Counsel's claim that the beneficiary devotes only 30 
percent of her time to treating patients is not supported by evidence in the record, and appears to be dependent 
upon counsel's unsupported assertion that the beneficiary manages other physicians within the Buena Park 
clinic. 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). As discussed above, there is no evidence that the 
beneficiary was involved in the supervision of other employees as of the date of filing the petition. 
Counsel claims on appeal that the beneficiary manages the essential function of "providing oriental medicine 
services to patients." 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 10 1 (a)(44)(A)(ii) of the Act, 8 U.S.C. 5 1 10 1 (a)(44)(A)(ii). 
The term "essential function" is not defined by statute or regulation. If a petitioner claims that the beneficiary 
is managing an essential function, the petitioner must furnish a detailed description of 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. fj 2 14.2(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. 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. Boyang, 
Ltd. v. I.N.S., 67 F.3d 305 (Table), 1995 WL 576839 (9th Cir, 1995)(citing Matter of Church Scientology 
International, 19 I&N Dec. 593, 604 (Comm. 1988)). In this matter, the petitioner has not provided evidence 
that the beneficiary manages an essential function. As discussed above, the petitioner's supporting letter, 
employee list and accompanying job descriptions, and organizational chart, along with the beneficiary's 
resume, indicate that the beneficiary is employed primarily to provide consultation and treatment services to 
clients, rather than directly or indirectly managing the provision of services. The petitioner has not 
distinguished the beneficiary's duties from those of the company's other oriental medicine physicians 
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employed at the same location, or established that she performs at a senior level within the petitioner's 
organization with respect to this function. 
Based on the foregoing discussion, the petitioner has not established that the beneficiary will be employed in 
a managerial or executive capacity. For this reason, the appeal will be dismissed. 
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. 6 1361. Here, that burden has not been met. 
ORDER: The appeal is dismissed.