dismissed L-1A Case: Import And Export

U.S. Department of Homeland Sccurit) 
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FILE: WAC 03 012 551 10 Office: CALIFORNIA SERVICE CENTER Date: 31 0 2005 
IN RE: Petitioner: 
Beneficiary: 
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 10l(a)(l SHL) of the immigration and 
Nationality Act, 8 U.S.C. 5 1 lOl(a)(f 5)(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 hrther inquiry must be made to that office. 
obert P. Wiernann, Direc r TH A 
Administrative Appeals dfice 
WAC 03 012 55110 
Page 2 
DISCUSSION: The nonimmigrant visa petition was denied by the Director, California Service Center. The 
matter is now before the Administrative Appeals Office (AAO) on appeal. 
The petitioner claims to be in the import and export business. The vetitioner claims that the U.S. entity is a 
subsidiary of located in Shenyang, China. 
The petitioner declares six employees with a gross annual income of $456,938.00. It seeks to employ the 
beneficiary temporarily in the United States as its deputy general manager for a period of three years, at a 
monthly salary of $1,500.00. The director determined that the petitioner had not submitted sufficient 
evidence to demonstrate that the beneficiary will be employed by the U.S. entity primarily in a managerial or 
executive capacity. 
On appeal, counsel disagrees with the director's determination and asserts that the beneficiary's duties will be 
managerial or executive in nature. 
To establish L-1 eligibility under section IOl(a)(lS)(L) of the Immigration and Nationality Act (the Act), 
8 U.S.C. 5 1101(a)(15)(L), the petitioner must demonstrate that the beneficiary, within three years preceding 
the beneficiary's application for admission into the United States, has been employed abroad in a qualifying 
managerial or executive capacity, or in a capacity involving specialized knowledge, for one continuous year 
by a qualifying organization and seeks to enter the United States temporarily in order to continue to render his 
or her services to the same employer or a subsidiary or affiliate thereof in a capacity that is managerial, 
executive, or involves specialized knowledge. 
The regulation at 8 C.F.R. 4 214.2(1)(l)(ii) states, in part: 
Intracompuny iran~jeree means an alien who, within three years preceding the time of his or 
her application for admission into the United States, has been employed abroad continuously 
for one year by a firm or corporation or other legal entity or parent, branch, affiliate, or 
subsidiary thereof, and who seeks to enter the United States temporarily in order to render his 
or her services to a branch of the same employer or a parent, affiliate, or subs~diary thereof in 
a capacity that is managerial, executive or involves specialized knowledge. 
The regulation at 8 C.F.R. 4 214.2(1)(3) states that an individual pet~tion filed on Fonn 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 with 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 
WAC 03 012 551 10 
Page 3 
education, training, and employment qualifies himlher to perform the intended serves 
in the United States; however, the work in the United States need not be the same 
work which the alien performed abroad. 
Section 101 (a)(44)(A) of the Act, 8 U.S.C. 5 1 101 (a)(44)(A), provides: 
The tenn "managerial capacity" means an assignment within an organization in which the 
employee primarily- 
(11 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 mereIy by virtue of 
the supervisor's supervisory duties unless the employees supervised are 
professional. 
Sect~on 101(a)(44b(B) of the Act, 8 U.S.C. 5 1 101(a)(44)(B), provides: 
The term "executive capacity" means an assignment within an organilation in which the 
employee primarily- 
6) Directs the management of the organization or a major component or 
function of the organization; 
{ii) Establishes the goals and poIicies 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. 
WAC 03 012 551 10 
Page 4 
The petitioner described in the petition the beneficiary's proposed duties as: "managing daily business 
operations regarding purchasing, import/export, delivery scheduling and financing; direct corporate 
administrative matters regarding office management, inventory control and business operational procedure." 
The petitioner submitted a letter of support dated October 3, 2002 in which the beneficiary's proposed duties 
are described as: 
Due to the business necessity, [the beneficiary] has been dispatched to the U.S. company to 
work as the Deputy General Manager. As the Deputy General Manager of [the U.S. entity], 
[the beneficiary] will have the job duties to manage daily business operations regarding 
purchasing, importlexport, delivery scheduling and financing; direct corporate administrative 
matters regarding office management, inventory control and business operational procedure. 
Under the supervision of the general manager, the Deputy General Manager has the plenary 
power to make all Business decision, set up business short and long term business goals and 
objectives, to hire and fire local employees, make evaluation reports of personal and hire and 
fire employees and recommend promotions. 
The petitioner submitted a copy of the U.S. entity's organizational chart which depicted the company's 
managerial hierarchy and staffing levels to  include:^ general manager, as deputy 
general manager, a marketing department consisting of as manager and and 
as sales representatives. The chart also depicted a financial department with the name = 
located directly below the department title and an administrative department with the name located 
directly below the department title. 
In a response to the director's request for additional evidence, the petitioner submitted a letter, dated 
November 12,2002, in which the subordinate's duties are described in part, as: 
1 - Marketing Manager. in (sic] responsible for the marketing activities and 
strategies; 
2. - Financial Manager; in charge of all the financial and accounting matters and 
coordinating with CPA for annual financial repot; 
5. - Marketing Associate: in [sic] responsible for the sales accounts and contact 
with buyers. 
The director determined that the petitioner had failed to submit sufficient evidence to establish that the 
beneficiary will be employed primarily in a managerial or executive capacity. The director srated that the 
majority of the beneficiary's duties were identical to and overlapped with that of the general manager, the 
marketing manager, the finance manager, and the administrative officer. The director noted that the 
beneficiary's duties would be a combination of a market analyst and sales representative. The director 
concluded by noting that in review of the overall purpose and stage of development of the U.S. entity, the 
petitioner had failed to establish that the organization required another managerial or executive position. 
WAC 03 012 551 10 
Page 5 
On appeal, counsel argues that the U.S. entity's genera1 manager is responsible for the overall operation of the 
business from international operations to expansion including cooperative communication with parent 
company officials. Counsel contends that the general manager spends half of his time outside of the United 
States fulfilling his responsibilities. Counsel argues that the general manager's duties consist of coordinating 
the purchase of basic materials and expansion of the business into countries abroad. In comparison, counsel 
contends that the beneficiary would be responsible for the day-to-day operations of the U.S. entity. Counsei 
asserts that the general managers and the deputy general manager's responsibilities are different in that the 
former manager's responsibilities are carried out predominately in other countries as well as U.S. based 
operations; while on the other hand, the latter's responsibilities are limited to the U.S. entity's overall 
operations. Counsel concludes that although their duties are similar they are separate and distinct. Counsel 
resubmits a copy of the U.S. entity's organizational chart on appeal. 
The record is not persuasive in demonstrating that the beneficiary will be employed in a primarily managerial 
or executive capacity. When examining the manageriai or executive capacity of the beneficiary, the AAO 
will look first to the petitioner's description of the beneficiary's 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 must specifically state whether the beneficiary is primarily employed in a managerial or executive 
capacity. 
Further, the petitioner fails to document what proportion of the beneficiary's duties would be manageriai 
functions and what proportion would be non-managerial. The petitioner lists the beneficiary's duties as 
managerial, but it fails to quantify the time the beneficiary spends on them. This failure of documentation is 
important because several of the beneficiary's daily tasks, such as scheduling deliveries, inventory control, 
purchasing materials, and finance management do not fall directly under traditional managerial duties as 
defined in the statute. For this reason, the AAO cannot determine whether the beneficiary is primarily 
performing the duties of a manager. See IKEA US, Inc. v. U.S. Dept. of Justice, 48 F. Supp. 2d 22,24 (D.D.C. 
I 999). 
The petitioner has provided a vague and nonspecific description of the beneficiary's duties that fails to 
demonstrate what the beneficiary does on a day-to-day basis. For example, the petitioner states that the 
beneficiary's duties will include making all business decisions and initiating short-term and long-term 
business goals and objectives. The petitioner did not, however, provide a detailed description of the goals. 
policies, or business decisions to be made by the beneficiary. Going on record without supporting 
documentary evidence is not sufficient for purposes of meeting the burden of proof in these proceedings. 
Matter of 7'reu.sut-e Craft of California, 14 I&N Dec. 190 (Reg. Cornm. 1972). Specifics are clearly an 
important indication of whether a beneficiary's duties are prirnarlly executive or managerial in nature, 
otherwise meeting the definitions would simply be a matter of reiterating the regulations. Fedzn Bros. Co., 
Ltd. v. Savu, 724 F. Supp. 1 103 (E.D.N.Y. 1989), aff'd. 905 F.2d 41 (2d. Cir. 1990). 
The petitioner described the beneficiary as being involved in the purchasing of imports and exports, delivery 
scheduling, financing, inventory control, and direct corporate administration. Since the beneficiary would be 
directly involved in delivery scheduling, financing, inventory control and the purchase of the petitioner's 
product, she is performing tasks necessary to provide a service or product. and these duties are not considered 
managerial or executive in nature. An employee who primarily performs the tasks necessary to produce a 
WAC 03 012 551 10 
Page 6 
product or to provide sewices is not considered to be employed in a managerial or executive capacity. Mutter 
of Church Scientology International, 19 I&N Dec. 593,604 (Comm. 1988). 
There is insufficient detail regarding the actual duties of the assignment to overcome the objections raised by 
the director. The director stated in his decision that the beneficiary's duties, as described, were identical to 
and overlap those of the general manager, the marketing manager, the finance manager, and the 
administrative officer. On appeal, counsel admits that the duties are Identical but claims that the general 
manager performs his duties both abroad and in the United States, whereas the beneficiary's duties would be 
performed only in the United States. Further, it is noted that the description of the U.S. company employee's 
duties dated November 12, 2002 is inconsistent with the company's organizational chan in that the latter 
doesn't show as a manager or as an administrative officer as claimed. 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. Matler of No, 19 I&N Dec. 582, 591-92 (BIA 1988). Although the 
petitioner asserts that the beneficiary would be managing a subordinate staff, the record does not establish that 
the subordinate staff is composed of supervisory, professional, or managerial employees. See section 
101(a)(44)(A)(ii) of the Act. A first-line supervisor will not be considered to be acting in a managerial 
capacity merely by virtue of his or her supervisory duties unless the employees supervised are professional. 
Section 10 1 (a)(44)(A)(iv) of the Act. 
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. tj 1361. The petitioner has not sustained that burden. 
ORDER: The appeal is dismissed.