dismissed L-1A Case: Import/Export Services

U.S. Department of Homeland Security 
20 Massachusetts Ave., N.W., Rm. A3042 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
Services 
File: SRC 05 05 1 5 1640 Office: TEXAS SERVICE CENTER Date: 
 BAR 2 8 ?Dot 
Petition: 
 Petition for a Nonimmigrant Worker Pursuant to Section 10 1 (a)(15)(L) of the Immigration 
and Nationality Act, 8 U.S.C. 5 1 10 1 (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. 
Administrative 
SRC 0.5 05 1 5 1640 
Page 2 
DISCUSSION: The Director, Texas 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 employ the beneficlary as an L-1A non~mmigrant 
intracompany transferee pursuant to section 101(a)(15)(L) of the Immigration and Natlonality Act (the Act), 8 
U.S.C. 5 1101(a)(15)(L). The petitioner is a Florida Irm~ted liability company engaged in the provision of 
cargo import and export services. The petitioner cla~ms that it is the affiliate of Agencia Viento Tropical 
Ltda., located in San Jose, Costa Rica. The petitioner seeks to employ the beneficiary as its imporb'export 
manager for a three-year period. 
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 contends that the evidence 
submitted was sufficient to estabIish that the beneficiary will be employed in a managerial capacity as she will 
manage a key function of the organization, exerclse discretion over its day-to-day operations, and supervise a 
team of professional employees. Counsel asserts that the director incorrectly determined that the benefic~ary 
would not supervise professionals, and failed to consider whether the beneficiary would be employed in an 
executive capacity. Counsel submits a brief and additional evidence in support of the appeal. 
To establish eligibility for the L-l nonimmigrant visa classification, the petitioner must meet the cnteria 
outlined in section 101(a)(15)(L) of the Act. Specifically, a qualieing organization must have employed the 
beneficiary in a qualifying managerial or executrve capacity, or in a specialized knowledge capacity, for one 
continuous year within three years preceding the beneficiary's application for admission into the Un~ted 
States. In addition, the benefic~ary 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. Finally, counsel contends that the beneficiary's organizational structure is 
sufficiently complex to support the beneficiary in a position that is primarily managerial. 
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 petitloner 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 
knowIedge capacity, including a detailed description of the services to be performed. 
(iii) 
 Evidence that the alien has at Ieast one continuous year of full time employment 
abroad with a qualifying organization within the three years preceding the filing of 
the petition. 
SRC 05 051 51640 
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(iv) 
 Evidence that the alien's prior year of employment abroad was in a position that was 
managerial, executive or involved specialized howledge and that the alien's prior 
education, training, and employment qualifies hidher 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 issue in the present matter is whether the beneficiary will be employed by the United States entity in a 
primariIy 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 
(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 IOl(a)(44)(B) of the Act, 8 U.S.C. $ 1 lOl(a)(44)(B), defines the tern "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 mahng; and 
(iv) 
 receives only general supervision or direction horn higher level executives, the board 
of directors, or stockholders of the organization. 
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The nonimmigrant petitlon was filed on December 14,2004. In an appended letter, dated December 2,2004, 
the petitioner indicated that the beneficiary would perform the folIowing duties: 
[Slupervise personnel dealing with shipping documentation and customers; establish shipptng 
instruct~ons; deveIop and document standards and emergency operating (Shipping) 
procedures; d~rect conversion of products from American to foreign standards /specifications 
to assure efficient operatron under foreign conditions; negotiate services and preferential 
rates; direct clerical and technical staff related to shlpplng documentation and make 
hinng/firing recommendations of this personnel; coordtnate warehouse activities; supervise 
and tnspect the physical maintenance of warehouse and the maintenance records of vehicles 
and equipment and supervise /examine invoices and shipping manifests for conformity to 
tariff and customs regulat~ons. 
[The beneficiary] will carefully monitor compliance with shipping and customs and supervise 
the activit~es and employees related to these functions. She will aIso be instrumental in 
negotiating preferentia1 rates. 
The director issued a request for evidence on December 28, 2004 and instructed the petitioner to submit: (1) 
an organizatronal chart for the U.S. company identify~ng all employees by name and position title; (2) a 
statement describing the staffing of the U.S. company, including the number of employees, their job duties, 
their date of hire, and their work schedule; and (3) ev~dence of any contract employees utilized by the U.S. 
company, including Forms 1099-MISC and contracts, and a statement describing the type of services they 
provide. 
In a response dated January 27, 2005, counsel for the petitioner provided the requested statement regarding 
the petitioner's staff, which includes a general and operations manager, an office manager, an accounting 
department with three employees, and an importlexport department, which would be managed by the 
beneficiary. The import/export department includes two ocean account executives and one air account 
executive. The petttioner indicated that the ocean account executives perform the following duties: 
[Dlirectly responsible for dealing with ocean freight accounts; in charge of proper delivery of 
cargo; completing and complying w~th customs documentation and requirements; confers 
with clients to determine need (type of service, time of delivery, etc.); estimates costs for 
delivering cargo via maritime; submits estimated budget to client for approval; involved with 
import/export management in identifying potential clients; assists management in obtaining 
competitive prices with ocean carriers; completes sales orders and submits to accounting 
department for processing; should report directly to import/export manager. 
The petitioner further stated that its air account executive performs the same duties for the company's air 
fi-eight accounts. The petitioner's organizational chart indicates that the beneficiary would report directly to 
the general manager. 
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The director denied the petition on February 11,2005, concluding that the beneficiary would not be employed 
in a primarily managerial or executive capacity m the United States. The director determined that the 
beneficiary would serve as a first-line supervisor of three non-professional employees. 
On appeal, counsel for the petitioner asserts that the director's conclus~on was erroneous and asserts: (1) the 
account executives supervised by the beneficiary are employed in profess~onal positions according to the 
Department of Labor's Dictionary of Occupational Titles and 0"Net occupational classifications; (2) the 
beneficiary will manage an "essential function" as "she will head the most important department of the 
company"; and (3) the director failed to consider whether the beneficiary would serve in an executive 
capacity. Counsel asserts that the beneficiary will "direct a major component or function of the company, 
establish goals and policies, exercise wide latitude in discretionary decision-making and received only general 
supervision from the petitioner's genera1 manager, and therefore will serve in an executive capacity, as well 
as a managerial capacity. 
Upon review of the petition and supporting evidence, the petitioner has not established that the beneficiary 
mll serve in a primarily managerial or executive capacity in the United States. 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 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 ~nstant case, the petitioner asserts that the beneficiary will be 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 sechon 
101 (a)(44)(B) of the Act, and the statutory definition for managerial duties under section 10 l(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). 
Further, the definitions of executive and managerial capacity have two parts. First, the petitioner must show 
that the beneficiary performs the high-level responsrbilities that are specified in the definit~ons. Second, the 
petitioner must show that the beneficiary primarily performs these specified responsibilities and does not 
spend a majority of his or her t~me on day-to-day functions. Champion World, Inc. v. INS, 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 author~ty, but that a majority of his or her duties are 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. 
Here, the petitioner's vague description of the beneficiary's duties does not clearly depict an individual 
primarily engaged in the high-level tasks associated with the statutory definitions of managerial and executive 
capacity. For example, the petitioner initially stated that the beneficiary will "supervise personnel dealing 
wlth shipping documentation and customs," and "direct clerical and technical staff related to shipping 
documentation," suggesting that she would be supervising non-professional personnel. The petitioner further 
Indicated that the beneficiary would "dlrect conversion of products from American to foreign 
SRC 05 051 51640 
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standards/specifications," "coordinate warehouse activities," "supervise and inspect the physical maintenance 
of warehouse and the maintenance records of vehicles and equipment," and "supervise/examine Invoices and 
shipping manifests for conformity to tariff and customs regulations." The petitioner did not, however, 
identify what speclfic managerial or executive duties the beneficiary would perform to "direct7' product 
conversion, or to "coordmate" warehouse activities, nor did it idenhfy a warehouse staff or other personnel to 
support the beneficiary in performing these duties. The petitioner also failed to specify whether the 
beneficiary would personally inspect the petitioner's warehouse, equipment records, invoices and shipping 
manifests, or whether she would supervise others to do so. Without further explanation, many of the described 
duties could describe an employee engaged in non-qualifying operational or first-line supervisory duties 
necessary to malntain the petitioner's shipping and warehouse operations. 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. 1103 (E.D.N.Y. 1989), aff'd, 905 F.2d 41 (2d. Cir. 1990). The actual duties themselves reveal the true 
nature of the employment. Id. An employee who "primarily" performs the tasks necessary to produce a 
product or to provide services is not considered to be "primarily" employed in a managerial or executive 
capacity. See sections 101(a)(44)(A) and (B) of the Act (requiring that one "primarily" perform the 
enumerated managerial or executive duties); see also Matter of Church Scientology Int'l., 19 I&N Dec. 593, 
604 (Con~m. 1 988). 
The petitioner also indicated that the beneficiary would "establish shipping instructions," "develop and 
document standards and emergency operating (Shipping) procedures, and negotiate service contracts with 
carriers, warehouse operators and insurance company representatives." The petitioner did not however 
explain the instructions, standards and procedures to be developed by the beneficiary, or indicate with what 
frequency she would be required to negotiate contracts. Wh~le these tasks suggest that the beneficiary will 
exercise some authority over the petitioner's day-to-day sbpping and warehouse operations, based on the 
current record, the AAO is unable to determine whether the claimed managerial duties constitute the majonty 
of the beneficiary's duties, or whether the beneficiary primarily performs non-managerial operational or first- 
line supervisory duties. The petitioner's description of the beneficiary's job duties does not establish what 
proportion of the beneficiary's duties is managerial in nature, and what proportion is actually non-managerial. 
See Republic of Transkei v. INS, 923 F.2d 175, 177 (D.C. Cir. 1991). The AAO cannot indeterminately 
allocate the beneficiary's time to primarily managerial or executive duties when clearly the beneficiary is also 
performing non-qualifying duties. 
The petitioner indicates that the beneficiary will have supervisory authority over subordinate employees, 
including three account executives. Although the beneficiary is not required to supervise personnel, if it is 
claimed that her duties 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. 
The petitioner has not claimed, nor does the record establish, that the beneficiary's subordinates are employed 
in supervisory or managerial positions. In evaluating whether the beneficiary manages professional 
employees, the AAO must evaIuate 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. 5 1101(a)(32), states 
that "[tlhe term profession shall include but not be limited to architects, engineers, lawyers, physicians, 
SRC 05 051 51640 
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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 ofSea, 19 I&N Dec. 817 (Comm. 
1988); Matter of Ling, 13 I&N Dec. 35 (R.C. 1968); Matter of Shin, 3.1 I&N Dec. 686 (D.D. 1966). 
Therefore, the AAO must focus on the level of education required by the pos~tion, rather than the degree held 
by a 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 stated that the beneficiary's subordinates possess 
bachelor's degrees, or that the company specifically requires completion of a bachelor's degree for the 
account executive position. Nor has the petitioner sufficiently established that the duties of the account 
executive posit~on and specialized train~ng required rise to the level of "professional" as defined above. 
On appeal, counsel for the petitioner equates the position of "account executive" to an "advertising and 
promotion manager" and states that according to the Department of Labor's O*Net occupational classification 
system, such a position typically requires a four-year bachelor's degree. Agam, counsel does not specifically 
state that the petitioner requires its account executives to possess a degree in any particular field, and has not 
submitted any independent evidence to establish that a degree in a relevant field is the normal prerequisite for 
such a posrtion. Nor has counsel provided any explanation for equating an "account executive" to an 
"advertising and promotion manager," particularly in light of the fact that the petitioner initially stated that the 
benefic~ary would supervise "personnel dealing with shipping documentation and customs" and "clerical and 
technical staff," not professional personnel. It is incumbent upon the petitloner 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 objectwe evidence pointing to where the truth lies. Matter 
of Ho, 19 I&N Dec. 582, 591-92 (BIA 1988). Without additional evidence or explanation, the AAO cannot 
conclude that the beneficiary's subordinates would be employed in professional positions. Thus, the petitioner 
has not shown that the beneficiary's subordinate employees are employed in a capacity that is supervisory, 
professional, or managerial, as required by section 101(a)(44)(A)(ii) of the Act. The petitioner has not 
established that the portion of time the beneficiary will devote to supemsing three account executives would 
be considered time spent performing in a managenal capacity. 
On appeal, counsel claims that the beneficiary alternatively qualifies for the benefit sought based on her 
management of the petitioner's "import/export7' function. 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)(i1) of the 
Act, 8 U.S.C. 5 1101(a)(44)(A)(ii). If a petitioner claims that the beneficiary is managing an essential 
function, the petitioner must identify the function with specificity, articulate the essential nature of the 
hnction, 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. See sections 101(a)(44)(A) and (B) of the Act (requiring that one "primarily" 
perform the enumerated managerial or executive duties); see also Matter of Church Scientology Int 'l., 19 I&N 
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Dec. 593, 604 (Comm. 1988). 
 In this matter, the petitioner has not provided evidence that the beneficiary 
will primarily manage an essential function. 
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 'Lprimarily" managerial. As discussed above, the petitioner 
fails to document what proportion of the beneficiary's duties would be managerial 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 described tasks, such as coordinating warehouse activities, inspecting warehouse and 
equipment maintenance records, examining invoices, and converting products from American to foreign 
specifications, 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 function 
manager. See IKEA US, Inc. v. US. Dept. of Justice, 48 F. Supp. 2d 22,24 (D.D.C. 1999). 
On appeal, counsel claims that the director overlooked the beneficiary's proposed employment in an 
executive capacity and asserts that she will "direct a major component or function of the company," "establish 
goals and policies," have "wide-latltude in discretionary decision-malung" and "receive only general 
supervision7' from the petitioner's general manager. Counsel provided no further explanation regarding the 
beneficiary's claimed executive duties, nor did the petitioner's initial filing or response to the d~rector's 
request for evidence address the beneficiary's qualifications as an executive pursuant to section 101(a)(44)(B) 
of the Act. On appeal, a petitioner cannot offer a new pos~tion to the beneficlary, or materially change a 
position's title, its level of authority within the organizational hierarchy, or the 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. Mutter of Michelin 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 Izummi, 22 I&N Dec. 169, 176 (Assoc. Comm. 1998). 
The statutory definition of the term "executive capacity" focuses on a person's elevated position within a 
complex organizational hierarchy, including major components or functions of the organization, and that 
person's authority to direct the organ~zation. Section 101(a)(44)(B) of the Act, 8 U.S.C. 3 1101(a)(44)(B). 
Under the statute, a beneficiary must have the ability to "direct the management" and "establish the goals and 
policies" of that organization. Inherent to the definition, the organization must have a subordinate level of 
managerial employees for the beneficiary to direct and the beneficiary must primarily focus on the broad 
goals and policies of the organization rather than the day-to-operations of the enterprise. An individual will 
not be deemed an executive under the statute simply because they have an executive title or because they 
"direct" the enterprise as the owner or sole managerial employee. The beneficiary must also exercise "wide 
latitude in discretionary decision mahng" and receive only "general supervision or direction from higher level 
executives, the board of directors, or stockholders of the organization." Id. The beneficiary's initial job 
description described an employee performing primarily operational and first-line supervisory duties, rather 
than one who would be employed primarily to establ~sh goals and pohcies or to focus on the broad objectives 
of the company. Counsel's unsupported statements regarding the beneficiary's executive capacity on appeal 
are not persuasive. The unsupported statements of counsel on appeal or in a motion are not evidence and thus 
are not entitled to any evidentiary weight. See INS v. Phinpathya, 464 U.S. 183, 188-89 n.6 (1984); Matter of 
SRC 05 05 1 5 1640 
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Ramirez-Sanchez, 17 I&N Dec. 503 (BLA 1980). Moreover, conclusory assertions regarding the beneficiary's 
employment capacity are not sufficient. Merely repeating the language of the statute or regulations does not 
satisfy the petitioner's burden of proof. Fedin Buos. Co., Ltd. v. Sava, 724 F. Supp. 1103, 1108 (E.D.N.Y. 
1989), ard, 905 F. 2d 41 (2d. Cir. 1990); Avyr Associates, Inc. v. Meissner, 1997 WL 188942 at *5 
(S.D.N.Y.). The petitioner has not established that the beneficiary will be employed by the petitioner in an 
executive capacity. 
Based on the foregoing discussion, the petitioner has not established that the beneficiary would be employed 
in the United States in a primarily managerial or executive capacity. For this reason, the appeal will be 
dismissed. 
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. tj 1361. Here, that burden has 
not been met. 
ORDER: The appeal is dismissed.