dismissed L-1A Case: Industrial Equipment Distribution

U.S. Department of ffomeland Security 
20 Mass. Ave., N.W., Rm. 3000 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
Services 
File: EAC 07 037 50927 Office: VERMONT SERVICE CENTER 
Petition: 
 Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(15)(L) of the Immigration 
and Nationality Act, 8 U.S.C. 5 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. 
Robert P. Wiemann, Chief 
Administrative Appeals Office 
EAC 07 037 50927 
Page 2 
DISCUSSION: The Director, Vermont Service Center, denied the petition for a nonirnmigrant visa. The 
petitioner subsequently filed a motion to reopen, which the director granted. The director then issued a 
decision affirming his prior adverse findings. The matter is now before the Administrative Appeals Office 
(AAO) on appeal. The appeal will be dismissed. 
The petitioner filed this nonimmigrant petition seeking to employ the beneficiary among its managerial staff 
as an L- I A nonimmigrant intracompany transferee pursuant to section 10 1 (a)(15)(L) of the Immigration and 
Nationality Act (the Act), 8 U.S.C. 5 1101(a)(15)(~).' The petitioner is a corporation organized in the State 
of Texas and is engaged in the importing, exporting, and distribution of industrial equipment and providing 
various industry related services. The petitioner seeks to employ the beneficiary fi-om November 27, 2006 
until November 27,2009. 
The director denied the petition based on the determination that the petitioner failed to establish that the 
beneficiary would be employed in the United States in a qualifying managerial or executive capacity. 
On appeal, counsel disputes the director's findings, reiterating the list of duties and responsibilities previously 
provided by the petitioner and asserting that the beneficiary's duties are managerial and executive in nature. 
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'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. 8 214.2(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. 
1 
 The record is inconsistent as to the job title of the beneficiary's proposed position with the U.S. entity. Part 5, item 1 of 
the petitioner's Form 1-129 indicates that the beneficiary will be employed in the United States as a logistics manager. 
However, the letter submitted in support of the Form 1-129, dated November 21, 2006, indicates that the beneficiary 
would be employed in the United States in the position of general manager, whose responsibility it would be to oversee 
the work of three managerial employees, including the logistics manager. 
EAC 07 037 50927 
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. 
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 101(a)(44)(B) of the Act, 8 U.S.C. 4 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 from higher level executives, the board 
of directors, or stockholders of the organization. 
EAC 07 037 50927 
Page 4 
The primary issue in this proceeding is whether the United States entity would employ the beneficiary in a 
managerial or executive capacity, where the beneficiary's time would be primarily spent performing duties of 
a qualifying nature. 
In su ort of the Form 1-129, the petitioner provided a letter dated November 21, 2006 in which - 
4 the petitioner's vice-president, stated that the beneficiary's proposed employment would involve 
overseeing the company's activities and providing direction to a management staff comprised of a sales 
manager, a logistics manager, and an accounts manager.* ~r. further stated that the beneficiary 
would indirectly manage all other personnel who would be reporting to the beneficiary's managerial 
subordinates. 
Additionally, the petitioner provided its organizational chart, listing a total of 13 employees, including the 
beneficiary. The chart illustrated a multi-tiered organizational hierarchy, consisting of four managerial tiers. 
The beneficiary's position is depicted as third from the top, subordinate directly to the company's vice 
president. The chart shows that the beneficiary's direct subordinates consist of the three managers for the 
divisions listed above. The AAO notes, however, that Part 5, item 12 of the petitioner's Form 1-129 
previously indicated that the petitioner had 17 rather than 13 employees, a discrepancy that has not been 
resolved in the instant record of proceeding. This discrepancy is more puzzling when taking note of the fact 
that the beneficiary, whose immigration status, and therefore his employment for the U.S. petitioner, remains 
uncertain. Without the beneficiary as part of the petitioner's organizational structure, the petitioner would 
then have only 12 employees rather than 17 employees as claimed in the Form 1-129. 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 I&N Dec. 582,59 1-92 (BIA 1988). 
After reviewing the petitioner's initial submissions, the director determined that additional evidence was 
required in order to determine whether the beneficiary's proposed position with the U.S. entity would be 
within a managerial or executive capacity such that the beneficiary's subordinate staff would include 
supervisory, professional, or managerial employees who would relieve the beneficiary from having to 
perform the services of the U.S. entity. Accordingly, a request for additional evidence (WE) was issued on 
February 22, 2007, informing the petitioner of the record's shortcomings. The petitioner was instructed to 
provide complete position descriptions for the beneficiary's direct subordinates, including an hourly 
breakdown of the job duties they would perform on a weekly basis, and an explanation of each subordinate's 
educational credentials. 
The petitioner responded by submitting a letter dated May 10, 2007 from Mr. 
 who asserted that "the 
nature of [the beneficiary's] duties and responsibilities will require him to perform at an utmost senior level 
within the or anizational hierarchy" and urged that the beneficiary would not be a manager only in position 
title. Mr. h asserted that the beneficiary's "senior position involves simultaneously working on different 
projects" and claimed that his role "does not necessarily lend itself to specific listing of assignments." 
Therefore, instead of describing the beneficiary's actual daily tasks, Mr. provided the following list of 
job responsibilities: 
Supra n. 1. 
EAC 07 037 50927 
Page 5 
To effectively plan and coordinate all customer support activities whilst ensuring the most 
feasible methods are implemented for achieving the most efficient support of customers, sales 
staff and installers[.] 
To be responsible for the development, implementation and adherence to a [clustomer 
[slupport [plrogram, by developing and reviewing standards, policies and procedures for all 
functions involved with, or related to [l]ogistics, [alccounting and [slales functions . . . . 
To review and resolve product and service problems and other concerns within the [plroduct 
[glroup and or functions including vendors, customers, quality control personnel and any 
other entity related to logistics, product development and service. 
To oversee and supervise the processing of sale[s] orders, acknowledgements and sales 
invoices in conjunction with the [slales [dlepartment. 
To receive and review through is line managers all customer satisfaction surveys and all 
customers['] feed back. To analyze and act upon any customer complaint trends with regard 
to product or component failure and take appropriate corrective action with appropriate 
subordinates or other personnel. 
To provide guidance and advice on matters of technical assistance and training to customer 
representatives and field service personnel as and when required. 
[To b]e responsible for the control and review of all [clompany sales and purchase orders 
thereby ensuring conformity of established policies and procedures. 
To oversee and supervise all functions related to receiving of products, inventory control and 
interim quality controls and shipping of all goods sold. 
[To b]e responsible for annual performance reviews of all his subordinate staff. 
To assume direct supervisory responsibility for support staff assigned and to assist those in 
supervisory roles to effectively supervise staff under their direction. This includes the 
administration and facilitation of periodic performance reviews, authorization and approval of 
time[-]off requests. 
To assume an oversight role in the area of [ilnformation and [tlechnology by ensuring that 
information systems function properly and supervise the resolution of any problems as and 
when they arise. 
To assume a [flacilities oversight role by ensuring the proper care and condition of the 
physical office environment as well as interacting with the landlord in the resolution of any 
EAC 07 037 50927 
Page 6 
issues which may arise. 
Participate in and contribute to the [clompany's senior management monthly meetings to 
review the effective execution of operational plans and in the quarterly meetings to promote 
the [clompany's overall direction by developing and securing strategic sales opportunities so 
as to expand revenue growth and manage resource retention across our targeted market 
segment, identify new business opportunities and build lasting professional relationships. 
Stand in and assume responsibility for [the] [vlice [plresident's role as and when required due 
to [the] VP's ad hoc absence from the workplace. 
It is noted that the petitioner provided no direct evidence establishing its employment of the three managers 
claimed be the subordinates of the beneficiary's proposed position. While the AAO acknowledges that this 
documentation was not specifically requested in the WE, precedent case law has firmly established that going 
on record without supporting documentary evidence is not sufficient for purposes of meeting the burden of 
proof in these proceedings. Matter of SofJici, 22 I&N Dec. 158, 165 (Comm. 1998) (citing Matter of 
Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm. 1972)). 
After reviewing the petitioner's submissions, the director determined that the petitioner failed to establish that 
the beneficiary would be employed by the U.S. entity in a qualifying managerial or executive capacity. While 
the AAO finds that the adverse conclusion was warranted by the record presently before us, it is noted that the 
director's underlying analysis was flawed and must be duly addressed in this decision. 
First, the director commented on the nature of the petitioner's business, finding that the "small import/export 
outfit" does not require a primarily managerial or executive employee. The basis for this finding, however, is 
unclear, particularly in light of the gross and net annual incomes indicated by the petitioner in its Form 1-129 
and further shown in the petitioner's 2005 and 2006 federal tax returns. 
Second, the director issued another adverse finding on the basis of the beneficiary's proffered salary. The 
AAO notes, however, that a beneficiary's salary is an admissibility factor and not criterion to be used in 
determining his or her prospective employment capacity. The director's finding with regard to the latter is not 
supported by any statute or precedent decision. 
Third, the director noted that while the beneficiary's claimed subordinates appear to have the necessary 
qualifications to perform in a professional capacity, they are not so employed within the petitioning entity. 
The AAO notes that the petitioner need not establish that the beneficiary's subordinates are both managerial 
and professional. Section 101(a)(44)(A)(ii) of the Act specifically states that if the beneficiary manages 
subordinate employees, the petitioner must establish that such subordinates are supervisory, professional, or 
managerial. There is no requirement that the subordinates must be both professional and managerial. In the 
present matter, the petitioner has indicated, through its provision of an organizational chart which includes the 
petitioner's hierarchy and the position titles included therein, that the beneficiary's subordinates are managers, 
who purportedly have subordinates of their own. The director's comment places an undue burden on the 
petitioner and is hereby withdrawn. 
EAC 07 037 50927 
Page 7 
Notwithstanding the director's reasoning, the denial properly notes that the record lacks sufficient evidence to 
establish that the beneficiary would be relieved from having to devote the primary portion of his time to the 
performance of non-qualifying tasks. While the AAO acknowledges the petitioner's tax returns for 2005 and 
2006, which show substantial revenues generated and significant salaries paid during both years, the AAO 
cannot make any assumptions regarding the beneficiary's proposed job duties on the basis of the petitioner's 
financial status. 
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. 5 214.2(1)(3)(ii). The AAO will then consider this 
information in light of the petitioner's organizational hierarchy, the beneficiary's position therein, and the 
petitioner's overall ability to relieve the beneficiary from having to primarily perform the daily operational 
tasks. In the present matter, the record lacks a comprehensive and sufficiently detailed description of the 
beneficiary's day-to-day tasks. While the petitioner provides an extensive list of the beneficiary's proposed 
job responsibilities, the record lacks an adequate explanation clarifying which tasks the beneficiary would 
actually carry out on a daily basis in his quest to reach his job objectives. 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. Precedent case law recognizes the significance of a detailed 
job description, finding that the actual duties themselves will reveal the true nature of the employment. Fedin 
Bros. Co., Ltd. v. Sava, 724 F. Supp. 1103, 1108 (E.D.N.Y. 1989), afyd, 905 F.2d 41 (2d. Cir. 1990). While 
the AAO does not rule out the possibility that the beneficiary may primarily perform qualifying job duties 
within his proposed position for the U.S. entity, the record as presently constituted does not support an 
affirmative finding, and it appears more likely than not that the beneficiary will not be primarily employed in 
a qualifying capacity. 
Additionally, while the AAO does not agree with the director's finding regarding the managerial or 
professional nature of the beneficiary's proposed support staff, the petitioner must provide documentary 
evidence to establish that such a support staff was in place at the time the Fonn 1-129 was filed such that the 
beneficiary would be immediately relieved from having to primarily perform non-qualifying tasks if the 
petition were approved. As previously stated, the petitioner's assertions, without supporting documentary 
evidence, are insufficient for the purpose of assisting the petitioner meet its burden of proof. See Matter of 
Sofflci, 22 I&N Dec. at 165. 
On appeal, counsel asserts that the petitioner generates considerable revenue and has 15 full-time employees, 
including four managers whose work the beneficiary would directly oversee. It is noted, however, that 
counsel's assertions regarding the petitioner's organizational make-up and the number of employees the 
beneficiary would oversee are inconsistent with information previously provided by the petitioner. As stated 
earlier, the petitioner's Form 1-129 indicates that the petitioner has a total of 17 employees, while the 
organizational chart submitted in support of the petition lists 13 employees including the beneficiary. 
Counsel's current claim that the petitioner has 15 full-time employees adds further confusion to an already 
existing discrepancy, which the record does not resolve. See Matter of Ho, 19 I&N Dec. at 591-92. The 
record is also inconsistent with regard to the number of employees the beneficiary would manage. While the 
petitioner stated in Part 5, item 2 of the Fonn 1-129 that the beneficiary would oversee two managerial 
EAC 07 037 50927 
Page 8 
employees, the organizational chart indicates that the beneficiary would have three managerial subordinates 
and counsel now claims that the beneficiary would have four managerial subordinates. Despite the fact that 
all three assertions are inconsistent, the petitioner has provided no documentation establishing which, if any, 
of these assertions is factually accurate. 
Accordingly, the AAO concludes that the petitioner has failed to provide sufficient documentation to establish 
that its Form 1-129 warrants approval. While the petitioner is not precluded from filing another Form 1-129 
curing the significant deficiencies noted herein, the AAO cannot find that the beneficiary would be employed 
in a qualifying managerial or executive capacity on the basis of the record currently before us. 
Furthermore, the record does not support a finding of eligibility based on at least one additional ground that 
was not previously addressed in the director's decision. Namely, the regulation at 8 C.F.R. 9 214.2(1)(3)(iv) 
requires that the petitioner establish that the beneficiary was employed abroad for the requisite one-year 
period in a qualifying managerial or executive capacity. In the present matter, while the petitioner provided 
the foreign entity's organizational chart, which also showed that the beneficiary's direct subordinates were 
three managerial employees, the petitioner failed to provide a description of the job duties perfomed by the 
beneficiary during his employment abroad. Without this crucial information, the AAO cannot conclude that 
the petitioner met the requirement specified in 8 C.F.R. tj 214.2(1)(3)(iv), and the petition must be denied for 
this additional reason. 
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. When the AAO denies a petition on multiple alternative grounds, a plaintiff can 
succeed on a challenge only if it is shown that the AAO abused its discretion with respect to all of the AAO's 
enumerated grounds. See Spencer Enterprises, Inc., 229 F. Supp. 2d at 1043. 
In visa petition proceedings, the burden of proving eligbility for the benefit sought remains entirely with the 
petitioner. 8 U.S.C. $ 1361. Here, that burden has not been met. Accordingly, the appeal will be dismissed. 
ORDER: The appeal is dismissed.