dismissed L-1A Case: Import And Distribution

U.S. Department of Homeland Security 
20 Massachusetts Ave., NW, Rm. A3042 
Washington, DC 20529 
U.S. Citizenship 
and Immigratioin 
tra- p'm P~V~CJ Services 
PUBLIC COPY 
- -- 
File: WAC 03 209 51075 Office: CALIFORNIA SERVICE CENTER Date: 
Petition: Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(15)(L) of the Immigration 
and Nationality Act, 8 U.S.C. 5 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. 
Robert P. Wiemann, Director 
Administrative Appeals Office 
WAC 03 209 5 1075 
Page 2 
DISCUSSION: The Director, California 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 th,? appeal. 
The petitioner filed this nonimrnigrant petition seeking to extend the employment of its vice president as an 
L-LA nonimrnigrant intracompany transferee pursuant to section lOl(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 
California that is engaged in ?he import and distribution of artificial flowers. The petitioner claims that it is 
the subsidiary of ocated in Guangdong, China. The beneficiary was 
previously granted L-1A classification for a three-year period and the petitioner now seeks to erctend the 
beneficiary's stay for an additional two years. 
The director denied the petition concluding that the petitioner did not establish that the beneficiary will be 
employed in the United States in a primarily managerial or executive capacity. 
The petitioner subsequently filed an appeal. The director declined to treat the appeal as a motion and 
forwarded the appeal to the AAO for review. On appeal, counsel for the petitioner disputes the tlirector's 
findings and asserts that the petitioner has been employed in a qualifying managerial capacity. 
To establish eligibility for the L-1 nonimrnigrant visa classification, the petitioner must meet the criteria 
outlined in section lOl(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 (I)(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 prioi- 
education, training, and employment qualifies hirnjher to perform the intended 
WAC 03 209 5 1075 
Page 3 
services in the United States; however, the work in the United States need not be the 
same work which the alien performed abroad. 
The issue in the present matter is whether the beneficiary would be employed by the United States entity in a 
primarily managerial or executive capacity under the extended petition. 
Section 101(a)(44)(A) of the Act, 8 U.S.C. 5 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 supervisecl, 
functions at a senior level within the organizational hierarchy or with respect to th'z 
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 lOl(a)(44)(B) of the Act, 8 U.S.C. 5 1101(a)(44)(B), defines the term "executive capaci(yV 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, the petitioner described the beneficiary's job duties as follows: 
WAC 03 209 5 1075 
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He assists the president in planning, developing and establishing policies and objectives 
of the company's business in international trade activities and distribution. 
He submits long-term and short-term business plans to the president. He directs the 
subordinates to establish their own responsibilities. 
He reviews marketing reports and financial reports to ensure that the company's 
objectives are achieved. 
He directs market research and finalizes marketing plans. 
He directs to establish quality assurance system and reviews quality reports. 
He attends major business negotiations to establish strategic relationship with the U.S. 
business partners. 
He analyzes operations to evaluate company's performance and to determine areas of 
cost reduction and program improvement. 
He directs financial and budget activities to fund operations and increase efficiency. 
He submits reports to the president concerning company's performance and business 
opportunities. 
In support of the petition, the petitioner submitted an organizational chart showing that the beneficiary 
supervises four subordinates including a warehouse manager, customer service support person, bookkeeper 
and quality control engineer. The petitioner provided a brief job description and salary information for each 
employee. 
On September 24, 2003, the director requested additional evidence. Specifically, the director requested a 
more detailed and specific description of the beneficiary's duties; a detailed description of the quality control 
engineer's duties; and copies of the petitioner's California Employment Development Department (EDD) 
Forms DE-6, Quarterly Wage Reports for all employees for the last two quarters. 
In response, counsel for the petitioner submitted a letter dated December 1, 2003, which provides the same 
job description quoted above. Referring to the nine job duties listed, counsel indicated that the beneficiary's 
working time is allocated as follows: 
Duty 1 
Duty 2 
Duty 3 
Duty 4 
Duty 5 
Duty 6 
Duty 7 
Duty 8 
Duty 9 
The petitioner also submitted the requested job description for its quality control engineer, and its most recent 
Forms DE-6, which show that the petitioner employed the six employees listed on its organizational chart at 
the time of filing the petition to extend the beneficiary's status. 
WAC 03 209 5 1075 
Page 5 
On December 12, 2003, the director denied the petition. The director determined that the petitioner had not 
established that the beneficiary would be employed in a primarily managerial or executive capacil:~, noting 
that the petitioner did not provide a sufficiently detailed description of the beneficiary's actual duties. The 
director further noted that the beneficiary's duties would largely comprise supervision of non-professio'nals or 
directly providing the services of the business. Finally, the director noted that the petitioning entity does not 
possess the organizational complexity to warrant an executive position. 
On appeal, counsel for the petitioner asserts that the beneficiary has been serving in a primarily miinagerial 
capacity and that the director placed undue emphasis on the number of employees supervised without taking 
into account the reasonable needs of the organization. Counsel asserts that on a daily basis, the benef~ciary has 
been and will be "working out business plans and directing market research activities, financial actikities, and 
quality control activities," and provides the following account of the beneficiary's typical day: 
At 9:00 am, he starts his work. He reviews faxes and letters. He assigns employees to handle 
some urgent matters. Then he holds a short day-to-day meeting with his supervisees, briefly 
reviewing ongoing business and assigning new tasks. 
At 9:30 am, he makes telephone calls and holds business discussion with outside professiona.1 
services. such as CPA and bank. 
At 11:OO am, he starts to prepare a report, which is to be submitted to the president. 
At 12:OO am [sic], he goes for appointed business lunch. 
At 1:30 pm, he is back from lunch. He continues to write the report. 
At 2:00 pm, he puts aside the report and goes for a negotiation with visiting business partner. 
At 400 pm, his supervisees come to his office to report business matters that occurred during 
the day. He holds a discussion with them and gives them instructions. 
At 5:00 pm, the time in China is 9:00 am. He makes phone calls to the parent company. 
Around 6: 10 pm, he finishes his office work and drives back home. At home in the night, ht: 
continues to make phone calls to China for business matters. 
Counsel concludes that these duties are characteristic of duties performed by a manager or executive, and that 
the petitioner has a reasonable need to retain the beneficiary's services in the position of vice president. 
Upon review, counsel'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 13 C.F.R. 
5 214.2(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 
WAC 03 209 5 1075 
Page 6 
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), 
199 1 WL 144470 (9th Cir. July 30, 199 1). 
The duties listed in the letter accompanying the initial petition, which were repeated in response to the request 
for evidence, are too broad and nonspecific to convey an understanding of the beneficiary's proposed daily 
responsibilities. For instance, the job description uses general terms such as "directs market research," 
"directs financial and budget activities," "analyzes operations," and "attends major business negotiations." 
The petitioner did not, however, clarify who is actually responsible for performing routine financial and 
budget activities or conducting market research activities, nor did it describe what duties are involved in 
"analyzing operations" or explain what constitutes a "major business negotiation." Going on record without 
supporting documentary evidence is insufficient for the purpose of meeting the burden of proof in these 
proceedings. Ikea US, Irtc. v. INS, 48 F. Supp. 2d 22,24-5 (D.D.C. 1999); see generally, Republic of Transkei 
v. INS, 823 F.2d 175 (D.C. Cir. 199l)(discussing burden the petitioner must meet to demonstrate: that the 
beneficiary qualifies as primarily managerial or executive); Matter of Treasure Craft of California.. 14 I&N 
Dec. 190 (Reg. Comm. 1972). Additionally, specifics are 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. 
Moreover, the petitioner describes the beneficiary as spending a full 30 percent of his time reviewing 
marketing reports, directing market research and finalizing marketing plans, but does not describe how these 
duties are managerial. In addition, the petitioner does not claim to have anyone on its staff who is responsible 
for preparing market reports, conducting market research or otherwise contributing to marketing plans. It is 
therefore reasonable to conclude that the beneficiary is solely responsible for the petitioner's marketing 
function, which would necessarily require him to directly perform all of the non-managerial and non- 
executive duties associated with the function. In addition, as mentioned above, the petitioner also describes 
the beneficiary as allocating 20 percent of his time "attending major business negotiations" and "estiiblishing 
strategic relationships," but without more information or specific examples of the types of negotiations 
conducted or the nature of contracts awarded, the AAO cannot distinguish these claimed duties from routine 
sales activities. Further, while the petitioner employs a customer service support person who "takes orders," it 
is not clear that anyone other than the beneficiary is involved in meeting with clients to generate the orders. 
Since the beneficiary actually negotiates sales contracts and markets the petitioner's products, these duties, 
which appear to require 50 percent of his time, will not be considered managerial or executive in nalure. 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 Intenzational, 
19 I&N 593,604 (Cornm. 1988). 
Contrary to counsel's assertions on appeal, the petitioner has not demonstrated that the beneficiary will 
supervise a subordinate staff of professional, managerial or supervisory personnel who can relieve him from 
performing non-qualifying duties. See section 101(a)(44)(A)(ii) of the Act. In particular, section 101(a)(32) of 
the Act, 8 U.S.C. § 1101(a)(32), states, "[Tlhe term professional shall include but not be limited to architects, 
WAC 03 209 5 1075 
Page 7 
engineers, lawyers, physicians, surgeons, and teachers in elementary or secondary schools, colleges, 
academies, or seminaries." The term "professional" contemplates knowledge or learning, not merely skill, of 
an advanced type in a given field gained by a prolonged course of specialized instruction and study of at least 
a baccalaureate level, which is a realistic prerequisite to entry into the particular field of endeavor. Matter of 
Sea, 19 I&N Dec. 8 17 (Comm. 1988); Matter of Ling, 13 I&N Dec. 35 (R.C. 1968); Matter of Shil;!, 1 1 I&N 
Dec. 686 (D.D. 1966). 
Therefore, the AAO must focus on the level of education required by the position, rather than the degree held 
by the subordinate employee. The possession of a bachelor's degree by a subordinate employee does not 
automatically lead to the conclusion that an employee is employed in a professional capacity as that term is 
defined above. In the instant case, the petitioner has not, in fact, established that a bachelor's degree is 
actually necessary, for example, to perform the work of a bookkeeper, warehouse manager or customer 
service support worker. While the petitioner has designated its other employee as a "quality control 
engineer," it has not established that the position is in fact professional. Even if this particular position were 
professional, the petitioner has stated that the beneficiary spends approximately ten percent of his time 
supervising quality control matters and therefore could not be considered to be primarily supervising 
professional personnel. 
The AAO acknowledges that counsel has provided a new description of the beneficiary's daily 
responsibilities which differs from previously submitted descriptions. The new description indicates that the 
beneficiary spends more time on supervision of subordinate staff and reporting to the president and the 
foreign parent company, and less time on marketing duties. However, 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 he 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 Miclzelin 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 Izurnmi, 22 I&N Dec. 169, 176 (Assoc. Cornm. 1998). Under the circumstances, the AAO need not 
and does not consider the sufficiency of the amended job description submitted on appeal. 
Finally, counsel correctly observes that a company's size alone, without taking into account the reasonable 
needs of the organization, may not be the determining factor in denying a visa to a multinational manager or 
executive. See section 101(a)(44)(C) of the Act, 8 U.S.C. 5 1101(a)(44)(C). However, it is appropriate for 
CIS to consider the size of the petitioning company in conjunction with other relevant factors, such as a 
company's small personnel size, the absence of employees who would perform the non-managerial or non- 
executive operations of the company, or a "shell company" that does not conduct business in a regular and 
continuous manner. See, e.g., Systronics Corp. v. INS, 153, F. Supp. 2d 7, 15 (D.D.C. 2001). To establish that 
the reasonable needs of the organization justify the beneficiary's job duties, the petitioner must sp~:cifically 
articulate why those needs are reasonable in light of its overall purpose and stage of development. The AAO 
notes that the beneficiary was initially transferred to the U.S, to serve as the company's president in :I000 and 
the petitioner subsequently filed an L-1A petition for a second president, who appears to have been working 
in this capacity since at least the beginning of 2002. In the present matter, the petitioner has not explained 
why a company with six employees requires the services of two L-1A managers/executives, or explained how 
WAC 03 209 5 1075 
Page 8 
the reasonable needs of the petitioning enterprise justify the beneficiary's performance of non-managerial or 
non-executive duties. 
Furthermore, the reasonable needs of the petitioner will not supersede the requirement that the beneficiary be 
"primarily" employed in a managerial or executive capacity as required by the statute. See sections 
101(a)(44)(A) and (B) of the Act, 8 U.S.C. 3 1101(a)(44). The reasonable needs of the petitioner may justify a 
beneficiary who allocates 51 percent of his duties to managerial or executive tasks as opposed to 90 percent, 
but those needs will not excuse a beneficiary who spends the majority of his or her time on non-qualifying 
duties. 
The record contains insufficient evidence to demonstrate that the beneficiary has been or will be employed in a 
managerial or executive capacity. The petitioner has provided no comprehensive description of the beneficiary's 
duties that would demonstrate that the beneficiary has been or will be managing the organization, or managing a 
department, subdivision, function, or component of the company. The petitioner has not shown that the 
beneficiary has been or will be functioning at a senior level within an organizational hierarchy. Further, the 
petitioner's evidence is not persuasive in establishing that the beneficiary has been or will be managing a 
subordinate staff of professional, managerial, or supervisory personnel who relieve him from perfomling non- 
qualifying duties. Based on the evidence submitted, it cannot be found that the beneficiary has been employed in 
a primarily executive or managerial capacity. 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 29 1 of the Act, 8 U.S.C. 5 1361. Here, that burden has not been met. 
ORDER: The appeal is dismissed