dismissed L-1A Case: Import/Export And Auto Repair

*enti- data deleled to 
prevent clearly unwarranted 
invasion of oersanal orivac?. 
PUBLIC COPY 
U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rrn. A3000 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
Services 
File: WAC-04-070-5 1460 Office: CALIFORNIA SERVICE CENTER Date: JU N 1 3 2006 
Petition: 
 Petition for a Nonimmigrant Worker Pursuant to Section 10 1 (a)(15)(L) of the Immigration 
and Nationality Act, 8 U.S.C. 9 1101(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 iemann, Chief 
Administrative Appeals Office 
WAC-04-070-5 1460 
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 president 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. § 1101(a)(15)(L). The petitioner is a corporation organized under the laws of the state 
of California and is engaged in im~ort and ex~ort o~erations and auto re~airs. The petitioner claims that it is 
the subsidiary of 
 in New Delhi, India. The beneficiary was initially granted a one- 
year period of stay in the United States to open a new office, 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 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 asserts that the Citizenship 
and Immigration Services (CIS) erred in its denial, and that the director misinterpreted the law with regard to 
the definition of managerial and executive capacity. 
To establish eligibility for the L-1 nonimmigrant visa classification, the petitioner must meet the criteria 
outlined in section 101(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.'~ 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. § 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 
education, training, and employment qualifies himher to perform the intended 
WAC-04-070-5 1460 
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. § 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 first 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. 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 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 
WAC-04-070-5 1460 
Page 4 
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 1101(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 fiom 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: 
Establishing company policies and controlling the overall management of the U.S. 
subsidiary and its affiliate Automasters. 
Overseeing the company's day to day operations and developing the company's long 
term goals in the U.S. market. 
Reviewing analysis and reports of company's activities, operations, and fmancials to 
determine company's profits and forecast future performance. 
Direct and supervise managerial staff and evaluate their performance of assigned 
duties. 
Receive direction, evaluation and supervision form the Board of Directors. 
On March 17, 2004 the director requested additional evidence. Specifically, the director requested copies of 
tax returns, photos of the foreign organization, an organizational chart and corresponding list of employees, 
their position titles, position descriptions and duration of employment with the company, as well as an 
explanation with supporting documentary evidence with instructions to be specific about the beneficiary's 
managerial or executive duties. 
In response, the petitioner submitted some organizational charts, photos of the foreign organization, bank 
statements and corporate stock documentation. 
On June 24, 2004, the director denied the petition. The director determined that the beneficiary would not be 
employed primarily in a managerial or executive capacity. 
On appeal, counsel for the petitioner asserts that the director misinterpreted the regulations and that it has 
established eligibility. 
WAC-04-070-5 1460 
Page 5 
Upon review, counsel's assertions are not persuasive and the decision of the director will be upheld. 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)(ii). The petitioner's description of the job duties must 
clearly, and in a detailed manner, 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. A petitioner cannot 
claim that some of the duties of the position entail executive responsibilities, while other duties are 
managerial. In the instant case petitioner stated that the beneficiary was its president but did not clearly state 
whether the beneficiary's employment would be in a primarily managerial or executive capacity. A petitioner 
may not claim that the beneficiary is to be employed as a hybrid "executive/manager" and rely on partial 
sections of the two statutory definitions. 
Rather than providing a specific description of the beneficiary's duties, the petitioner generally paraphrased 
the statutory definition of executive capacity. See section 101(a)(44)(A) of the Act, 8 U.S.C. 4 
1 101(a)(44)(A). For instance, the petitioner depicted the beneficiary as "directing the entire operation of the 
organization, establishing goals and policies of the organization, and directing and supervising managerial 
staff." However, conclusory assertions regarding the beneficiary's employment capacity are not sufficient to 
meet the petitioner's burden of proof. Merely repeating the language of the statute or regulations does not 
satisfy the petitioner's burden of proof. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1 103, 1 108 (E.D.N.Y. 
1989), aff'd, 905 F. 2d 41 (2d. Cir. 1990); Avyr Associates Inc. v. Meissner, 1997 WL 188942 at *5 
(S.D.N.Y.). 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. at 1108, afd, 905 F.2d 41. 
As pointed out by the director, the petitioner has not submitted any probative documentary evidence that 
supports the description of the beneficiary's duties, and relies primarily on conclusory assertions and 
characterizations. This classification is not based on a characterization or legal fiction, the petitioner must 
establish that the beneficiary will actually be employed primarily in a managerial or executive capacity 
through the submission of probative documentary evidence. Going on record without supporting 
documentary evidence is not sufficient for purposes of meeting the burden of proof in these proceedings. 
Matter of Sofici, 22 I&N Dec. 158, 165 (Comm. 1998) (citing Matter of Treasure Craft of California, 14 
I&N Dec. 190 (Reg. Cornm. 1972)). In this case the petitioner has repeatedly stated that it has established 
eligibility, but the record does not support these assertions. Without any supporting evidence to clarify the 
beneficiary's duties or even to support the petitioner's depiction of the facts, CIS cannot make a reasonable, 
objective determination that the facts are as the petitioner' portrays them. There is no evidence in the record 
of work product, no evidence of guidance from the board of directors, no evidence of any personnel actions, 
no evidence of market analysis, no goal statements or policy memos. Thus, the petitioner's assertions of 
eligibility rely solely on broad characterizations. 
The director gave notice to the petitioner of the petition's deficiency and requested additional evidence to 
supplement the record. However, the petitioner's response failed to give a more detailed description of the 
WAC-04-070-5 1460 
Page 6 
beneficiary's duties and failed to provide any clarifying evidence of what it is the beneficiary has actually 
been doing for the last year and would actually do in the future. The percentage breakdown submitted as 
petitioner's exhbit 8 does nothing to clarify the nature of the beneficiary's duties, as "marketing and 
promotion; inventory control; budget and sales forecasting" are not detailed descriptions and not probative of 
any detailed activities. The regulation states that the petitioner shall submit additional evidence as the 
director, in his or her discretion, may deem necessary. The purpose of the request for evidence is to elicit 
further information that clarifies whether eligibility for the benefit sought has been established, as of the time 
the petition is filed. See 8 C.F.R. $9 103.2(b)(8) and (12). The failure to submit requested evidence that 
precludes a material line of inquiry shall be grounds for denying the petition. 8 C.F.R. $ 103.2(b)(14). In this 
case, determining the employment capacity of the beneficiary is a direct and material line of inquiry; thus it 
was not persuasive for the petitioner to conclude its response to the director's RFE with "[wle have supplied 
to you all that you have requested; we have even divulged information that is of no concern to your 
organization" without ever clearly articulating what it is the beneficiary actually does. 
The petitioner also claims that the beneficiary is a functional manager. But an analysis of being a functional 
manager still rests on a finding that the beneficiary performs in a primarily managerial or executive capacity. 
Whether the beneficiary is an "activity" or "function" manager turns in part on whether the petitioner has 
sustained its burden of proving that his duties are "primarily" managerial. 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 1 101(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 written job offer that clearly describes the duties to be performed, 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. 8 C.F.R. fj 204.50)(5). In addition, 
the petitioner's description of the beneficiary's daily duties must demonstrate that the beneficiary manages the 
function rather than perfoms the duties related to the function. 
Here, the petitioner has failed to meet the burden that the beneficiary's duties would be primarily managerial 
functions. It is not sufficient for the petitioner to merely assert that a beneficiary "manages an entire 
operation" and thus is a function manager. In this case the petitioner also lists the beneficiary's duties as 
executive, but it fails to describe in detail what the duties entail on a day-to-day basis. This failure of 
documentation is important because the picture of the beneficiary's actual daily duties is unclear. Without a 
detailed description and supporting documentary evidence, the CIS cannot make a determination that the 
beneficiary's duties are actually executive or managerial in capacity. For this reason, the AAO cannot 
determine whether the beneficiary is primarily performing the duties of a function manager. See IKEA US, 
Inc. v. U. S. Dept. of Justice, 48 F. Supp. 2d 22,24 (D.D.C. 1 999). 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. 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 (Cornm. 1988)). The petitioner was given 
notice of this deficiency by the director and chose not to respond. Thus, the director's decision that the 
petitioner had failed to establish the executive or managerial capacity of the beneficiary's position was based 
WAC-04-070-5 1460 
Page 7 
on the record and will not be disturbed. In this matter, the petitioner has not provided sufficient probative 
evidence that the beneficiary manages an essential function. 
On appeal counsel for petitioner incorrectly states that the level of staffing may not be used in determining the 
eligibility of a petitioner. 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, the absence of 
employees which are referred to in a petitioner's description of the beneficiary's duties, whether or not the 
beneficiary is acting as a first line supervisor, or if the petitioner is operating as a "shell company" that does 
not conduct business in a regular and continuous manner. See, e.g. Systronics COT. v. INS, 153 F. Supp. 2d 7, 
15 (D.D.C. 2001). The size of a company may be especially relevant when CIS notes discrepancies in the 
record and fails to believe that the facts asserted are true. Id. Contrary to counsel's assertions, if a basis of the 
petitioner's claims are that a beneficiary is managing employees, which the petitioner has stated several times 
in this petition, the regulations require CIS to evaluate whether or not the employees managed are 
professional, managerial, or supervisory in capacity. Thus, for counsel to assert that the director's decision 
was based solely on the number of employees and that the director was incorrect in assessing the capacity of 
the employees that the petitioner claims the beneficiary manages is a mischaracterization. The AAO finds 
this assertion is not persuasive and notes that simply contesting the director's conclusions, without any further 
evidence or articulation, is not sufficient to cany the beneficiary's burden of establishing the managerial or 
executive capacity of an intracompany transferee position. 
As a final note, counsel further refers to an unpublished decision in which the AAO determined that the 
beneficiary met the requirements of serving in a managerial and executive capacity for L-1 classification even 
though he was the sole employee. Counsel has furnished no evidence to establish that the facts of the instant 
petition are analogous to those in the unpublished decision. While 8 C.F.R. 9 103.3(c) provides that AAO 
precedent decisions are binding on all CIS employees in the administration of the Act, unpublished decisions 
are not similarly binding. Further, despite the fact that other petitioners may have met their burden of proof in 
establishing eligibility, each petition bears its own burden of establishing eligibility and merely citing a case 
will not absolve any petitioner of the burden to establish eligibility in their record of proceeding. 
In conclusion, the record is not persuasive in demonstrating that the beneficiary has been or will be employed 
in a primarily managerial or executive capacity. The petitioner indicates that it plans to hire additional 
managers and employees in the future. However, the petitioner must establish eligibility at the time of filing 
the nonimrnigrant 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). Furthermore, 8 C.F.R. tj 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. There is no 
provision in CIS regulations that allows for an extension of this one-year period. If the business is not 
sufficiently operational after one year, the petitioner is ineligible by regulation for an extension. In the instant 
matter, the petitioner has not reached the point that it can employ the beneficiary in a predominantly 
managerial or executive position. 
WAC-04-070-5 1460 
Page 8 
Accordingly, the petitioner has not established that the beneficiary will be employed in a primarily managerial 
or executive capacity, as required by 8 C.F.R. 5 214.2(1)(3). 
Beyond the decision of the director, the record does not contain sufficient evidence that the petitioner has 
been engaged in the regular, systematic, and continuous provision of goods and/or services in the United 
States for the entire year prior to filing the petition to extend the beneficiary's status. The petitioner has not 
submitted significant evidence of doing business, and only recently submitted a copy of the 2003 tax return. 
The record contains no evidence such as receipts, invoices, business accounts or business relationships or any 
other documentation that might demonstrate the conduct of business. Thus, pursuant to the regulation at 8 
C.F.R. $ 214.2(1)(14)(ii)(B), the petitioner is expected to submit evidence that it has been doing business since 
the date of the approval of the initial petition. In the instant case, there is no evidence that the petitioner was 
doing business, as that term is defined, from January 2003 through January 2004. For this additional reason 
the petition may not be approved. 
An application or petition that fails to comply with the technical requirements of the law may be denied by 
the AAO even if the Service Center does not identify all of the grounds for denial in the initial decision. See 
Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 2001), affd. 345 F.3d 683 
(9th Cir. 2003); see also Dor v. INS, 891 F.2d 997, 1002 n. 9 (2d Cir. 1989)(noting that the AAO reviews 
appeals on a de novo basis). 
The petition will be denied for the above stated reasons, with each considered as an independent and 
alternative basis for denial. 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. 4 1361. Here, that burden has 
not been met. 
ORDER: The appeal is dismissed.