dismissed L-1A Case: Import/Export

U.S. Department of Homeland Security 
20 Mass, Rm. A3042,425 I Street, N.W. 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
Services 
File: WAC 02 082 50540 Office: CALIFORNIA SERVICE CENTER Date: MAY 1 3 2005 
Petition: Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(l5)(L) of the Immigration 
and Nationality Act, 8 U.S.C. tj 1 101(a)(15)(L) 
IN BEHALF OF PETITIONER: 
INSTRUCTIONS: 
This is the decision ofthe 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. 
dministrative Appeals Office 
WAC 02 082 50540 
Page 2 
DISCUSSION: The Director, California Service Center, denied the petition for a nonimmigrant visa. The 
matter is now before the Administrative Appeals Off~ce (AAO) on appeal. The AAO will dismiss the appeal. 
The petitioner filed this nonimmigrant petition seeking to extend the employment of its account operator1 as 
an L-1A nonimmigrant intracompany transferee pursuant to section 101(a)(15)(L) of the Immigration and 
Nationality Act (the Act), 8 U.S.C. 5 1101(a)(15)(L). The petitioner claims to be a corporation organized 
under the law of the State of California engaging in the "import, export, wholesale" business. The petitioner 
claims that it is a wholly owned subsidiary of Aleum Co, Ltd., located in Seoul, South Korea. The 
beneficiary was granted a one-year period of stay to open a new office in the United States, and the petitioner 
now seeks to extend the beneficiary's stay. 
The director denied the petition concluding that the petitioner did not establish that the beneficiary would be 
employed by the United States entity 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 beneficiary does serve the U.S. 
entity in a managerial capacity. 
To establish eligibility for the L-1 nonimmigrant visa classification, the petitioner must meet the criteria 
outlined in section 10 l(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 (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 prior 
education, training, and employment qualifies him/her to perform the intended 
1 
The beneficiary's title is listed as "Account Operator" on the Form 1-129 and in the petitioner's December 
27, 2001 letter, and as "General Manager and Key Accountant" on the petitioner's April 19, 2002 response to 
the director's request for further evidence. 
WAC 02 082 50540 
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 regulation at 8 C.F.R. 3 2 14.2(1)(14)(ii) also provides that a visa petition, which involved the opening of a 
new office, may be extended by filing a new Form 1-129, accompanied by the following: 
(A) Evidence that the United States and foreign entities are still qualifying organizations 
as defined in paragraph (l)(l)(ii)(G) of this section; 
(B) Evidence that the United States entity has been doing business as defined in 
paragraph (I)(l)(ii)(H) of this section for the previous year; 
(C) A statement of the duties performed by the beneficiary for the previous year and the 
duties the beneficiary will perform under the extended petition; 
(D) A statement describing the staffing of the new operation, including the number of 
employees and types of positions held accompanied by evidence of wages paid to 
employees when the beneficiary will be employed in a management or executive 
capacity; and 
(E) Evidence of the financial status of the United States operation. 
At issue in this proceeding is whether the beneficiary would 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)(Aj, defines the term "managerial capacity" as an 
assignment within an organization in which the employee primarily: 
(i) manages the organization, or a department, subdivision, function, or component of 
the organization; 
(ii) supervises and controls the work of other supervisory, professional, or managerial 
employees, or manages an essential function within the organization, or a department 
or subdivision of the organization; 
(iii) if another employee or other employees are directly supervised, has the authority to 
hire and fire or recommend those as well as other personnel actions (such as 
promotion and leave authorization), or if no other employee is directly supervised, 
functions at a senior level within the organizational hierarchy or with respect to the 
function managed; and 
(iv) exercises discretion over the day to day operations of the activity or function for 
which the employee has authority. A first line supervisor is not considered to be 
acting in a managerial capacity merely by virtue of the supervisor's supervisory 
duties unless the employees supervised are professional. 
WAC 02 082 50540 
Page 4 
Section 10 1 (a)(44)(B) of the Act, 8 U.S.C. $ I 10 l (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 letter dated December 27, 2001, submitted with the initial petition, the petitioner stated that the 
beneficiary "coordinates and manages daily financial transactions of the U.S. company, evaluating cost and 
income prospects to make efficient allocation of funds; reporting to the executive on detailed financial reports 
and proposals; analyzing cost and productivity of impotdexport transaction and makes recommendations to 
the executive. [She] has and will be responsible for company import/export/wholesale accounts California 
[sic]. She has and will direct and train additional new 1J.S. employees expected in our employment. She has 
wide discretion in the operation of the office being answerable [sic] to the executive/president of the Korean 
parent company." 
On January 30, 2002, the director requested additional evidence. Specifically, the director requested (1) the 
U.S. entity's organization chart; (2) a detailed description of the beneficiary's jobs duties, including the 
percentage of time to be spent on each duty; (3) indication of whether the beneficiary supervises and controls 
the work of other supervisory, professional, or managerial employees; and (4) the name, job title, entry date 
of employment, educational level, and the salariedwages of other employees currently under the beneficiary's 
supervision, and evidence that they are actually the employees of the U.S. entity. 
In a letter dated April 19, 2002, responding to the director's request, the president of the U.S. entity provided 
the following description of the beneficiary's job dutiex2 
ImportIExport Coordination (30%): administer and coordinate impotdexport procedures to 
custom clearing house and give directives on delivery details. 
Key Account Duties (60%): Maintain customer relations and accounts receivable in U.S. 
Administer Accounts receivable of U.S. Accounts of In Korea. 
Administration/Communication (10%): Issue schedule directives and contract requirement to 
Seoul staff. Keep log of accounts and keep scheduled information and documentation network with 
1n Korea. 
' The AAO notes here that the percentages the petitioner assigned to the different categories of the 
beneficiary's job duties add up more than 100%. The petitioner has not offered any correction of this error. 
WAC 02 082 50540 
Page 5 
Commissioned Staff Coordination (10%): Contract with commission agents in U.S. for 
sales/purchase/quality control of manufactured products for import/export. Adjust and issue 
commission structure according to shipment type and transaction type. 
The petitioner further asserts that the beneficiary's main responsibility "is not [to] direct workers in [the] U.S. 
but to maintain the status of current account and business relations while coordinating and directing head 
office staff in Seoul for [the U.S. entity] to enter into negotiation and contract on behalf of the whole 
organization." 
With respect to other employees of the U.S. entity, the petitioner indicated that the beneficiary is the only 
employee stationed in the U.S. The petitioner explained that the beneficiary is supported by a subordinate 
staff based in the Seoul office, and the petitioner provided the name, salary, and education level of each of 
those employees. The petitioner also stated that the U.S entity required no other work force because it uses 
commission-based independent contractors. However, the petitioner submitted no documentation with 
respect to the employment of, or payment of wages to, any independent c~ntractor.~ Finally, the petitioner 
submitted an organizational chart of the U.S. entity, which shows that in addition to the beneficiary and the 
managing director, there are two other individuals listed under "sales & purchasing" and "quality control 
inspector." The petitioner provided no other information relating to these persons or their positions within the 
U.S. entity. 
On May 22, 2002, the director denied the petition concluding that the petitioner did not establish that the 
beneficiary would be employed by the United States entity in a primarily managerial or executive capacity. 
Specifically, the director found that the evidence failed to establish that the beneficiary would be managing a 
subordinate staff of professional, managerial or supervisory personnel who would relieve her from performing 
non-qualifying duties. The director further found that there is insufficient evidence to establish that the 
beneficiary would be managing or directing the management of a department, a subdivision or a function of 
the U.S. entity, other than in position title. 
On appeal, counsel for the petitioner asserts that the beneficiary does serve the organization in a managerial 
capacity. Counsel refers to the beneficiary as a "Key Account Executive" and the "Chief Accounting Officer" 
of both the foreign and U.S. entities, and offers a job description for the beneficiary's position as "Key 
Account Executive," which comprises four components: Management & Review (49%), Marketing (3 1 %), 
Conference (1 0%), and Goal and Policy (I 0%). Counsel further asserts that the beneficiary has recruited, and 
is assisted by, three persons who work for the U.S. entity on an independent contractual basis - a sales 
manager, general manager, and sales agent. Counsel indicates that the company intends to hire additional 
employees as it develops additional ventures in the United States. 
On review, the record is not persuasive in demonstrating that the beneficiary would be employed by the U.S. 
entity in a primarily managerial or executive capacity. 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. 
3 The AAO notes that the only evidence of wages paid to employees by the U.S. entity was the company's 
2001 U.S. Corporation Tax Return, which showed $28,978 in salary and wages paid in total in the year 2001, 
but which did not provide a break down of wages paid to individual employees. 
WAC 02 082 50540 
Page 6 
2142(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 in an executive or managerial capacity. Id. 
The petitioner must specifically state whether the beneficiary is primarily employed in a managerial or 
executive capacity. 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). 
In this matter, the petitioner's description of the beneficiary's job duties do not substantiate that the 
beneficiary will perform tasks associated primarily with managerial or executive duties rather than with 
carrying out the necessary day-to-day operations of the U.S. entity. For example, the petitioner indicated that 
the beneficiary would spend 60% of her time maintaining customer relations and administering accounts 
receivables. In addition, part of her remaining working hours would be spent coordinating import/export 
procedures to a customs clearing house, keeping logs of accounts, maintaining a scheduled information and 
documentation network, and contracting with commission agents in the United States for 
sales/purchase/quality control of the products. These tasks are part of the day-to-day operations of the 
petitioner's business and are necessary to provide the company's services. 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). 
The petitioner had indicated in its April 19, 2002 letter that the beneficiary's main responsibility is not to 
direct workers in the U.S. entity, but to maintain the status of current account and business relations in 
coordination with the staff in Seoul the Seoul office. 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 101(a)(44)(A)(ii) of the Act, 8 
U.S.C. fj 1101(a)(44)(A)(ii). To the extent the petitioner is claiming that the beneficiary is managing an 
essential function of the company, the petitioner must 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. In addition, the petitioner must provide a comprehensive and detailed 
description of the beneficiary's daily duties demonstrating that the beneficiary manages the function rather 
than performs the duties relating to the function. As discussed above, the petitioner's description of the 
beneficiary's job duties suggests that the beneficiary does not manage an essential function of the 
organization, but instead, appears to be performing the duties relating to that function herself. Again, an 
employee who primarily performs the tasks necessary to produce a product or to provide services is not 
considered to be employed in a managerial or executive capacity. Matter of Church Scientology 
International, 19 I&N Dec. at 604. 
Moreover, as the director correctly concluded, the record does not establish that the beneficiary would be 
supervising a subordinate staff of supervisory, professional, or managerial employees within the U.S. entity. 
See section 101(a)(44)(A)(ii) of the Act, 8 U.S.C. 5 1101(a)(44)(A)(ii). The record further fails to establish 
that there is sufficient staff in the U.S. entity to relieve the beneficiary of the non-qualifying duties. The 
petitioner indicated in its April 19, 2002 letter that the beneficiary is the only employee stationed in the 
United States. To the extent the beneficiary has a support staff, those persons are employees of the foreign 
WAC 02 082 50540 
Page 7 
entity, not the U.S. entity. Furthermore, while the petitioner claimed that it employs independent contractors, 
the petitioner has neither presented evidence to document the existence of these employees nor identified the 
services these individuals provide. Additionally, the petitioner has not explained how the services of the 
contracted employees obviate the need for the beneficiary to primarily conduct the day-to-day operations of 
the U.S. entity. Without documentary evidence to support its statements, the petitioner does not meet its 
burden of proof in these proceedings. Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm. 
1972). Since there is insufficient evidence to establish that the beneficiary is supervising a staff of 
professional, supervisory, and managerial employees, or indeed, that there is a subordinate staff within the 
U.S. entity that could relieve the beneficiary from performing non-qualifying duties, the beneficiary cannot be 
deemed to be primarily acting in a managerial capacity. 
Counsel's assertions on appeal are not persuasive. Counsel asserts that the beneficiary "does serve the 
function of 'managerial capacity,' whereas she manages the major accounts of the organization in U.S. as well 
as in Korea [sic]." As previously discussed, the beneficiary cannot be considered a "function manager" since 
the beneficiary's job description suggests that the beneficiary does not manage an essential function of the 
organization, but instead, is performing the duties relating to that function herself. 
Counsel also makes certain factual representations in his brief that are inconsistent with the evidence of 
record. Counsel appears to have assigned the beneficiary new titles, "Chief Accounting Officer" and "Key 
Account Executive," and provides a new job description for the position of "Key Account Executive" that 
bears little resemblance to the job description for the beneficiary previously submitted by the petitioner. 
Counsel also states that the beneficiary is supported by a sales manager, general manager, and sales agent, 
who are employed by the U.S. entity on an independent contractual basis. The AAO notes that these 
positions do not appear in the organizational chart for the U.S. entity that the petitioner submitted, nor was 
this information provided elsewhere in the record. Counsel includes no documentation to support these 
assertions in his brief. Without documentary evidence to support the claim, the assertions of counsel will not 
satisfy the petitioner's burden of proof. The assertions of counsel do not constitute evidence. Matter of 
Obnigbena, 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). 
With respect to the inconsistencies between the petitioner's previously submitted evidence and information set 
forth in counsel's brief, the AAO notes that 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 T&N Dec. 582, 591-92 (BIA 1988). Doubt cast on any aspect of the petitioner's proof may, of 
course, lead to a reevaluation of the reliability and sufficiency of the remaining evidence offered in support of 
the visa petition. Id. 
Finally, even assuming the facts as set forth in counsel's brief accurately represent the current situation with 
respect to the U.S. entity and the beneficiary's job, a petitioner cannot materially change a position's title, its 
level of authority within the organizational hierarchy, or the associated job responsibilities on appeal. 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 MicheZin 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 Izumrni, 22 I&N Dec. 169, 176 (Assoc. Comm. 1998). 
WAC 02 082 50540 
Page 8 
The petitioner must establish eligibility at the time of filing the nonimmigrant 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). 
In light of the foregoing, the AAO agrees with the director's conclusion that the petitioner has not established 
that the beneficiary would be employed in a primarily managerial or executive capacity by the United States 
entity, as required by 8 C.F.R. fj 214.2(1)(3). 
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. fj 1361. Here, that burden has not been met. Accordingly, the 
director's decision will be affirmed and the petition will be denied. 
ORDER: The appeal is dismissed.