dismissed L-1A Case: Import And Wholesale Distribution

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U.S. Department of Homeland Security 
20 Massachusetts Ave., N.W., Rm. A3042 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
Services b 1 
File: WAC 04 107 50167 Office: CALIFORNIA SERVICE CENTER Date: ,! ,~p 2 9 2006 
IN RE: 
Petition: Petition for a Nonimmigrant Worker Pursuant to Section 101 (a)(15)(L) of the Immigration 
and Nationality Act, 8 U.S.C. 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. 
I I+--$& obert P. Wiemann, irector 
li( 
Administrative Appeals Office 
WAC 04 107 50167 
Page 2 
DISCUSSION: The Director, California Service Center, denied the petition for a nonimrnigrant 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 president as an L-1A 
nonimmigrant intracompany transferee pursuant to section 10 l(a)(15)(L) of the Immigration and Nationality 
Act (the Act), 8 U.S.C. § 1101(a)(15)(L). The petitioner is a corporation organized in the State of California 
that is engaged in the import and wholesale distribution of agricultural and garden tools. The petitioner 
claims that it is the subsidiary located in Rajkot, India. The beneficiary was 
initially granted L-1A classification for a one-year period in order to open a new office in the United States, 
and the petitioner now seeks to extend his stay. 
The director denied the petition concluding that the petitioner did not establish that the beneficiary would 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 asserts that the director 
mischaracterized the nature of the beneficiary's duties, and claims that the petitioner submitted sufficient 
evidence to establish that the beneficiary performs only managerial and executive functions for the U.S. 
company. Counsel further asserts that the director placed undue emphasis on determining whether the 
beneficiary's subordinates are managers or professionals, while "ignoring" the duties performed by the 
beneficiary and failing to consider other relevant factors. Counsel submits a brief and copies of previously 
submitted 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. 3 214.2(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. 
WAC 04 107 50 167 
Page 3 
(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 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. fj 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 managerial or executive 
capacity; and 
(E) Evidence of the financial status of the United States operation. 
At issue in the present 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. § 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 
WAC 04 107 50167 
Page 4 
(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. 8 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 from higher level executives, the board 
of directors, or stockholders of the organization. 
In a March 2,2004 letter submitted in support of the petition, the petitioner described the beneficiary's duties 
as follows: 
He is fully responsible for directing the management of the corporation for establishing the 
goals, for contract negotiations, to hire and fire employees and for transaction of day-to-day 
business activities. 
As President of [the petitioner] the beneficiary will establish company policies and be 
responsible for overall management. He will oversee day to day operations, analyze financial 
reports, company's activity to maximize sales and profit, will establish long term goals and 
direct and supervise managerial staff. 
The petitioner stated that it employed three individuals, including the beneficiary, as of the date of filing, and 
provided an organizational chart indicating that the beneficiary supervises a sales and marketing executive 
and a finance and purchase executive. The petitioner further indicated that the job duties of the sales and 
marketing executive include: selling products, taking orders &om existing clients "from time to time," calling 
hardware distributors, sending catalogs and product samples, introducing new products into market, achieving 
sales targets, and holding responsibility for sales and marketing. The petitioner stated that its finance and 
purchase executive is responsible for: handling payments receivable and payable, managing banlung 
activities, preparing invoices, releasing import documents, managing the overall financial activity of the 
company, placing orders to the parent company, tracktng goods shipped from overseas, and overall 
responsibility for financial matters and purchasing of goods. Finally, the petitioner indicated that the 
beneficiary's duties are to manage and supervise activity of the employees of the company; to analyze 
WAC 04 107 50167 
Page 5 
financial reports; to visit trade shows; to negotiate contracts; to decide plans and projects of the company and 
necessary actions to achieve them; and to hire and fire employees. 
On April 28,2004, the director requested, in part, a more detailed description of the beneficiary's duties in the 
United States. The director instructed the petitioner to be specific and to indicate the percentage of time the 
beneficiary allots to each of the listed job duties. The director also requested the job titles and job 
descriptions for all employees under the beneficiary's supervision. 
In a response received on July 20, 2004, the petitioner indicated that the beneficiary is responsible for overall 
activity of the company, all management decisions related to the business, and provision of monthly financial 
updates to the Indian parent company. The petitioner indicated that the beneficiary devoted 20 percent of his 
time to marketing and promotion; 10 percent of his time to cost and profitability analysis; 10 percent of his 
time to target growth and future plans; 15 percent of his time coordinating with the petitioner's parent 
company; and 45 percent of his time to the direct supervision of employees. 
The petitioner submitted a separate statement regarding the job duties of each of its employees, which 
included the following job description for the beneficiary: 
His duty is to define plans and projections of the company. Giving instructions to [his 
subordinates] for achieving targets of the company. Reviewing sales and financial data from 
time to time and take necessary action to see that company's growth and profitability is 
achieved. To hire and fire employees of the company. To study USA market in depth and 
find out opportunities for growth and expansion of the company. To visit trade shows in 
USA, Mexico, South and Latin American countries. To study market and find out new 
products which can be developed at parent company in India. To coordinate with parent 
company and give them feed back of the market. Providing sales and financial updates to 
parent company. He is responsible for over all growth of the company in the USA. 
The petitioner also provided the following updated job descriptions for the beneficiary's subordinates: 
Marketing Executive - To sale [sic] products of the company in USA, Mexico, South and 
Latin American countries. Taking orders from existing clients from time to time. Call 
hardware distributors and convince them to buy our products, send them catalogue and 
samples of company. To introduce new products into the market. Achieve sales targets. Give 
report of sales and market feed back to the president from time to time. He is responsible for 
sales and marketing of the company. 
Finance and Purchase Executive - Taking care of payments receivable and payable. Manage 
banlung activities. To coordinate with CPA and to see that books of accounts are well 
maintained. Managing over all [financial] activity of the company and reporting to President. 
Place orders to Parent company. Keep track record of goods shipped from overseas. He is 
responsible for financial matters and purchasing of goods. 
WAC 04 107 50 167 
Page 6 
The petitioner submitted its California Forms DE-6, Quarterly Wage and Withholding Report, for the first 
two quarters of 2004, confirming the full-time employment of the beneficiary and his subordinates. 
The director denied the petition on August 16,2004, concluding that the petitioner had not established that the 
beneficiary would be employed in a primarily managerial or executive capacity. The director observed that 
the petitioner had indicated that the beneficiary would be employed in both a managerial and an executive 
capacity and thus must establish that the beneficiary's responsibilities meet the requirements of each capacity. 
The director further noted that the beneficiary would be performing non-qualifying marketing duties, and that 
the petitioner's description of the beneficiary's duties in general was too broad to establish what duties he 
would actually perform on a day-to-day basis, such that he could be classified as a manager or executive. The 
director also found insufficient evidence to establish that the beneficiary would supervise and control the 
work of supervisory, professional or managerial employees, concluding that the beneficiary's two 
subordinates are "clearly employed in non-professional positions." 
On appeal, counsel for the petitioner asserts that the beneficiary devotes 55 percent of his time to the 
"executive" duties of marketing and promotion, analysis of cost and profitability, target growth and future 
planning, and coordinating business with the petitioner's parent company; and 45 percent of his time to the 
"managerial" function of directly supervising his subordinates. Counsel further states that the beneficiary 
performs the high-level responsibilities included in the statutory definitions of managerial and executive 
capacity. Counsel contends that the director made a "subjective determination" based on the petitioner's 
organizational chart. Specifically, counsel claims that the director ignored and discounted the managerial and 
executive duties performed by the beneficiary "in its quest to determine that the 'managed' employees are 
supervisors or managerial employees themselves." Counsel asserts that the determination as to whether the 
beneficiary is employed in a managerial or executive capacity must be based on many factors, not merely the 
supervision and control of supervisory, professional and managerial employees. 
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 8 C.F.R. 
214.2(1)(3)(). 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 the instant matter, the petitioner asserts that the beneficiary is primarily engaged in both managerial duties 
and executive duties. To sustain such an assertion, the petitioner must establish that the beneficiary meets 
each of the four criteria set forth in the statutory definition for executive duties under section 10l(a)(44)(B) of 
the Act, and the statutory definition for managerial duties under section 101(a)(44)(A) of the Act. At a 
minimum, the petitioner must establish that the beneficiary is primarily employed in one or the other capacity. 
See 8 C.F.R. 5 214.2(1)(3)(ii). 
As noted by the director, the petitioner initially provided a vague and nonspecific description of the 
beneficiary's duties that failed to demonstrate what managerial or executive functions the beneficiary 
performs on a day-to-day basis. For example, the petitioner initially stated that the beneficiary's duties 
included responsibility for "contract negotiations," "transaction of day to day activities," and "analyz[ing] 
financial reports." Without further explanation, these duties do not appear to fall under the statutory 
WAC 04 107 50167 
Page 7 
definitions of managerial or executive capacity. The remainder of the beneficiary's job description merely 
paraphrased the statutory definition of executive capacity. See section 101(a)(44)(B) of the Act, 8 U.S.C. 
tj 1101(a)(44)(B) For example, the petitioner indicated that the beneficiary would be "directing the 
management of the corporation," ''establish[ing] company policy," and "establishing the goals." 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), affd, 905 F.2d 41 (2d. Cir. 1990). 
When requested to provide a more detailed account of the beneficiary's specific duties and the percentage of 
time he devotes to each duty, the petitioner provided an even more abbreviated job description that, again, 
appears to include non-qualifying duties. For example, the petitioner indicated that the beneficiary would 
devote 20 percent of his time to "marketing and promotion" and 15 percent of his time to "coordinating with 
parent company." The petitioner did not, however, indicate any specific managerial or executive tasks 
associated with these functions. Rather, the petitioner indicated that the beneficiary would be performing an in 
depth study of the U.S. market, visiting trade shows, and providing marketing and sales feedback to the 
foreign entity. Without further explanation, these duties, which account for 35 percent of the beneficiary's 
time, depict an employee who is directly involved in the company's day-to-day market research and routine 
internal reporting activities. 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). 
As properly noted by the director, the petitioner's descriptions of the beneficiary's duties included non- 
qualifying duties and were too vague and general to allow any meaningful determination as to what actual 
duties the beneficiary performs, or how much time he devotes to qualifying managerial or executive 
functions. 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. Sava, 724 
F. Supp. 1103 at 1108. 
On appeal, the petitioner again declines to further delineate the beneficiary's actual tasks. Instead, counsel 
again paraphrases the statutory definitions of managerial and executive capacity, asserts that the beneficiary 
meets the criteria of both definitions, and states that petitioner provided "factual proof' of the duties 
performed by the beneficiary. 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, the record 
contains no comprehensive description of the beneficiary's duties and no supporting evidence to support the 
petitioner's claim that the beneficiary is employed in a managerial and executive capacity, other than in 
position title. 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 (Comm. 1998) 
(citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm. 1972)). 
WAC 04 107 50 167 
Page 8 
Counsel also contends that the director placed undue emphasis on determining whether the beneficiary would 
supervise professional, managerial or supervisory employees, noting that the director is required to base his 
decision on the beneficiary's actual job duties. Counsel's argument is not persuasive. Preliminarily, the AAO 
notes that the director did not base his decision solely on a determination that the beneficiary would not 
supervise professional, managerial or supervisory employees. Rather, the director properly reviewed the 
petitioner's description of the beneficiary's duties and found it to be insufficient to establish the beneficiary's 
employment in a primarily managerial or executive capacity for the reasons discussed above. 
Further, in response to the director's request for evidence, the petitioner specifically stated that the beneficiary 
devotes 45 percent of his time to supervising his two subordinates, and counsel asserts on appeal that this 
responsibility falls under the statutory definition of managerial capacity. In light of these assertions, the 
director's analysis regarding the employment capacity of the beneficiary's subordinates was necessary to a 
determination as to whether the beneficiary is employed in managerial capacity. Although the beneficiary is 
not required to supervise personnel, if it is claimed that his duties are managerial because they involve 
supervising employees, the petitioner must establish that the subordinate employees are supervisory, 
professional, or managerial. See 101(a)(44)(A)(ii) of the Act. Although the petitioner refers to the 
beneficiary's subordinates as "executives," the petitioner has not shown that either of these employees 
supervises subordinate staff members or manages a clearly defined function within the petitioning company. 
In evaluating whether the beneficiary manages professional employees, the AAO must evaluate whether the 
subordinate positions require a baccalaureate degree as a minimum for entry into the field of endeavor. 
Section 101(a)(32) of the Act, 8 U.S.C. § 1 101(a)(32), states that "[tlhe term profession shall include but not 
be limited to architects, engmeers, lawyers, physicians, surgeons, and teachers in elementary or secondary 
schools, colleges, academies, or seminaries." The term "profession" 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 baccalaureate level, which is a realistic prerequisite to entry into the particular field of 
endeavor. Matter of Sea, 19 I&N Dec. 817 (Comm. 1988); Matter of Ling, 13 I&N Dec. 35 (R.C. 1968); 
Matter of Shin, 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 either of the beneficiary's 
subordinates possess a bachelor's degree, or more importantly, that a bachelor's degree is actually necessary, 
for example, to perform the sales work of its "marketing executive," or the bookkeeping, purchasing and 
administrative duties performed by its "finance and purchase executive." The petitioner has not submitted 
evidence on appeal to overcome the director's determination that the beneficiary would allocate 45 percent of 
his time to the non-qualifying task of supervising non-professional employees. 
Counsel further asserts that the director "subjectively determined based on the organizational chart. . .that the 
beneficiary will not be primarily employed in a qualifying managerial or executive capacity" and goes on to 
emphasize the success achieved by the company under the beneficiary's leadership during the first year of 
operations. Pursuant to section 10l(a)(44)(C) of the Act, 8 U.S.C. tj 1101(a)(44)(C), if staffing levels are used 
as a factor in determining whether an individual is acting in a managerial or executive capacity, CIS must take 
WAC 04 107 50167 
Page 9 
into account the reasonable needs of the organization, in light of the overall purpose and stage of development 
of the organization. In the present matter, however, 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. 9 214.2(1)(14)(ii)(D). The regulation at 8 C.F.R. 9 214.2(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 fiom 
primarily performing operational and first-line supervisory tasks, the petitioner is ineligible by regulation for 
an extension. 
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 show 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. NS, 940 F.2d 1533 (Table), 
1991 WL 144470 (9th Cir. July 30, 1991). 
The test is basic to ensure that a person not only has the requisite authority, but that a majority of his or her 
duties related to operational or policy management, not to the supervision of lower level employees, 
performance of the duties of another type of position, or other involvement in the operational activities of the 
company. Hence, the fact that the beneficiary manages a business does not necessarily establish eligibility for 
classification as an intracompany transferee in a managerial or executive capacity within the meaning of 
sections 101(a)(44)(A) and (B) of the Act. The record must establish that the majority of the beneficiary's 
duties will be primarily directing the management of the organization or a component or function of the 
organization. While the AAO does not doubt the beneficiary's responsibility for the petitioner's long-term 
planning and performance, the record is not persuasive in demonstrating that the beneficiary's actual duties 
will be in a primarily managerial or executive capacity. In the instant matter, the petitioner has failed to show, 
as of the date this petition was filed, that non-qualifymg marketing and first-line supervisory duties will not 
constitute the majority of the beneficiary's time. 
The petitioner has indicated its intention to hire a total of nine employees within four to seven years. 
However, the petitioner must establish eligibility at the time of filing the nonirnmigrant 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). As noted above, 8 C.F.R. 
9 214.2(1)(3)(v)(C) allows the intended United States operation one year within the date of approval of the 
petition to support an executive or managerial position. In the instant matter, the petitioner has not reached 
the point that it can employ the beneficiary in a predominantly managerial or executive position. 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. 5 1361. Here, that burden has not been met. 
ORDER: The appeal is dismissed.