dismissed L-1A Case: Industrial Equipment

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U.S. Department of Homeland Security 
20 Massachusetts Ave., N.W., Rm. 3000 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
File: EAC 07 147 52528 Office: VERMONT SERVICE CENTER Date: 
 MAY 2 0 2008 
Petition: 
 Petition for a Nonimmigrant Worker Pursuant to Section 101 (a)(15)(L) of the Immigration 
and Nationality Act, 8 U.S.C. $ 1 101(a)(15)(L) 
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, C 
3 Administrative Appeals Office 
EAC 07 147 52528 
Page 2 
DISCUSSION: The Director, Vermont Service Center, denied the petition for a nonimrnigrant visa. The 
matter is now before the Administrative Appeals Office (MO) on appeal. The MO will dismiss the appeal. 
The petitioner filed this nonimmigrant visa petition seeking to employ the beneficiary 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 is a corporation organized under the laws of the 
State of Texas and is allegedly in the "industrial equipment" business. 
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 MO for review. On appeal, counsel to the petitioner asserts that the director 
erred and that the beneficiary's duties will primarily be those of a manager. 
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. 5 214.2(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 hirniher 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 primary issue in the present matter is whether the beneficiary will be employed by the United States 
entity in a primarily managerial or executive capacity. 
EAC 07 147 52528 
Page 3 
Section 10 1 (a)(44)(A) of the Act, 8 U.S.C. 3 1 101 (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. 5 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. 
The petitioner does not clarify in the initial petition whether the beneficiary will primarily perform managerial 
duties under section 10 1 (a)(44)(A) of the Act, or primarily executive duties under section 10 1 (a)(44)(B) of 
the Act, although counsel appears to restrict the beneficiary to the managerial classification on appeal. A 
petitioner may not claim that a beneficiary will be employed as a hybrid "executive/manager" and rely on 
partial sections of the two statutory definitions. Given the lack of clarity, the AAO will assume that the 
petitioner is asserting that the beneficiary will be employed in either a managerial or an executive capacity 
and will consider both classifications. 
The petitioner describes the beneficiary's proposed duties in an attachment to the Form 1-129 as follows: 
EAC 07 147 52528 
Page 4 
As our Company's New Project Manager [the beneficiary] will be responsible for supervising 
the job execution and project management of each job. He will do so by establishing a direct 
line of communication between our company and our client. In this position he will be 
responsible for supervising that our employees follow our construction plans. To do so, he 
will be responsible for assessing and inspecting the job conditions of a project before 
assigning and naming a crew to that project. Once the project begins, he will be responsible 
for supervising the supervisors placed on each job. Finally, he will be responsible for 
preparing job close reports and assigning out employees to job close out duties. He will 
report directly to the Director of Technical Services. 
The petitioner also submitted an organizational chart for the United States operation. The chart shows the 
beneficiary, described as "project manager and customer service," reporting to "director operaciones" and 
supervising a variety of "crews" in various locations. The petitioner did not describe the duties or staffing of 
these "crews." 
On May 4, 2007, the director requested additional evidence. The director requested an organizational chart 
for the United States operation which clearly specifies all of the beneficiary's proposed subordinates. The 
director also requested a detailed explanation outlining how each of the duties of the subordinates is 
managerial or requires the expertise of a professional and copies of the subordinates' educational credentials. 
In response, the petitioner submitted a letter dated July 19, 2007 in which it further describes the proffered 
position as follows: 
[The beneficiary's] position manages Technicians located at our four distribution and service 
centers in Texas and our distribution and service center in Puerto Rico. There are presently 
19 Technicians in these five centers, and within the next 12 months, this would be about 25 
Technicians. 
Our Technician employees operate company trucks equipment with installation tools and 
equipment and are highly trained and knowledgeable about the product they install. 
[The beneficiary's] position is responsible for training programs for the technicians, for the 
allocation of their time to specific projects, for the review of their performance, and the 
PROJECT MANAGER has the authority to hire and fire Technicians. The PROJECT 
MANAGER coordinates with the REGIONAL MANAGERS which we describe and treat as 
"internal clients" of the company. This organizational struction [sic] gives the REGIONAL 
MANAGERS responsibility for sales in their region and administrative responsibility for 
activities in support of sales. However, they are not responsible for the job performance of 
the Technicians in their region. If a REGIONAL MANAGER learns of an issue related to 
performance of a Technician, that information is brought to the attention of the PROJECT 
MANAGER who will then be responsible for that issue. 
The PROJECT MANAGER is also responsible for all customer service issues. This service 
component of his responsibility for customer complaints is a principal responsibility of the 
EAC 07 147 52528 
Page 5 
position and, of course, is generally resolved by support provided by a Technician as assigned 
to resolve the issue by the PROJECT MANAGER. Or if the PROJECT MANAGER 
determines that a component must be replaced, he has the authority to make that decision and 
order the product and schedule a Technician to complete that replacement. This includes the 
authority to expend funds that were not authorized in the original project budget, as needed to 
make the customer happy. 
The PROJECT MANAGER is located at the Brownsville, Texas, distribution and service 
center. This position requires substantial travel to the other centers to supervise training and 
resolve complex customer service issues. Within his responsibility for customer service, 
there are times when he must meet directly with customers at larger projects to perform 
liaison and problem resolution. 
The petitioner did not submit a more detailed organizational chart for the United States operation or identify 
specifically the duties of the various "technicians" he will allegedly supervise. 
On August 10, 2007, the director denied the petition. The director concluded that the petitioner failed to 
establish that the beneficiary will be employed primarily in a managerial or executive capacity. 
On appeal, counsel asserts that the beneficiary's duties are primarily those of a manager. 
Upon review, counsel's assertions are not persuasive. 
When examining the executive or managerial capacity of the beneficiary, the AAO will look first to the 
petitioner's description of the job duties. See 8 C.F.R. 9 214.2(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. A petitioner cannot claim that some of the duties of the 
position entail executive responsibilities, while other duties are managerial. As explained above, a petitioner 
may not claim that a beneficiary will be employed as a hybrid "executive/manager" and rely on partial 
sections of the two statutory definitions. 
In this matter, the petitioner's description of the beneficiary's job duties fails to establish that the beneficiary 
will act in a "managerial" or "executive" capacity. In support of the petition, the petitioner has submitted a 
vague and non-specific job description which fails to describe the beneficiary as primarily performing 
managerial or executive duties. For example, the petitioner describes the beneficiary as supervising various 
"technicians" and resolving customer service issues. However, the petitioner has failed to establish that either 
of these duties will be a qualifying managerial or executive duty. First, it appears that the beneficiary's 
supervision of the various "technicians," who appear to be non-professional workers, will be a first-line 
supervisory task and will not be a qualifying managerial or executive duty. See infra. 
 Second, it has not 
been established that the beneficiary's duties associated with his "customer service" responsibilities will be 
managerial or executive in nature. To the contrary, it appears that these duties, e.g., resolving customer 
complaints, scheduling technicians to address customer complaints, and meeting directly with "large project" 
customers, are tasks necessary to produce a product or to provide a service. An employee who "primarily" 
performs the tasks necessary to produce a product or to provide a service is not considered to be "primarily" 
EAC 07 147 52528 
Page 6 
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 International, 19 I&N Dec. 593, 604 (Comm. 1988). The fact that the petitioner has given the 
beneficiary a managerial or executive title and has prepared a vague job description which includes inflated 
job duties does not establish that the beneficiary will actually perform managerial or executive duties. 
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). Going on record without supporting documentary evidence is not sufficient for purposes of meeting 
the burden of proof in these proceedings. Matter of Treasure Craft of California,. 14 I&N Dec. 190 (Reg. 
Comm. 1972). 
The petitioner has also failed to establish that the beneficiary will supervise and control the work of other 
supervisory, managerial, or professional employees, or will manage an essential function of the organization. 
As asserted in the record, the beneficiary will directly supervise a variety of "technicians." However, despite 
the director's request in the Request for Evidence, the petitioner failed to clearly identify the beneficiary's 
proposed subordinates or to explain why any of these "technicians" should be considered to be managerial, 
supervisory, or professional. Failure to submit requested evidence that precludes a material line of inquiry 
shall be grounds for denying the petition. 8 C.F.R. 9 103.2(b)(14). Regardless, as correctly noted by the 
director, it does not appear that the "technicians" are supervisory or managerial employees. To the contrary, it 
appears that the "technicians" primarily perform administrative or operational tasks, e.g., operate trucks, 
equipment, and tools. Also, it has not been established that the beneficiary's "coordination" with regional 
managers constitutes a supervisory or managerial task. 
In view of the above, the beneficiary would appear to be primarily a first-line supervisor of non-professional 
workers, the provider of actual services, or a combination of both. A managerial employee must have 
authority over day-to-day operations beyond the level normally vested in a first-line supervisor, unless the 
supervised employees are professionals. 101 (a)(44)(A)(iv) of the Act; see also Matter of Church Scientology 
International, 19 I&N Dec. at 604. Moreover, as the petitioner failed to establish the skills required to 
perform the duties of the subordinate "technician" positions, the petitioner has not established that the 
beneficiary will manage professional employees.' Therefore, the petitioner has not established that the 
beneficiary will be employed primarily in a managerial capacity.2 
I 
In evaluating whether the beneficiary will manage professional employees, the AAO must evaluate whether 
the subordinate positions require a baccalaureate degree as a minimum for entry into the field of endeavor. 
Section 101 (a)(32) of the Act, 8 U.S.C. 3 1 10 1 (a)(32), states that "[tlhe term profession shall include but not 
be limited to architects, engineers, lawyers, physicians, surgeons, and teachers in elementary or secondary 
schools, colleges, academies, or seminaries." The term "profession" contemplates knowledge or learning, not 
merely skill, of an advanced type in a given field gained by a prolonged course of specialized instruction and 
study of at least baccalaureate level, which is a realistic prerequisite to entry into the particular field of 
endeavor. Matter of Sea, 19 I&N Dec. 817 (Comm. 1988); Matter of Ling, 13 I&N Dec. 35 (R.C. 1968); 
Matter of Shin, 11 I&N Dec. 686 (D.D. 1966). 
while the petitioner has not argued that the beneficiary will manage an essential function of the organization, 
EAC 07 147 52528 
Page 7 
Similarly, the petitioner has failed to establish that the beneficiary will act in an "executive" capacity. 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 organization. Section 101(a)(44)(B) of the Act. 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 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-day 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 making" 
and receive only "general supervision or direction from higher level executives, the board of directors, or 
stockholders of the organization." Id. For the same reasons indicated above, the petitioner has failed to 
establish that the beneficiary will act primarily in an executive capacity. It appears that the beneficiary will 
be primarily employed as a first-line supervisor and will perform the tasks necessary to produce a product or 
to provide a service. Therefore, the petitioner has not established that the beneficiary will be employed 
primarily in an executive capacity. 
In reviewing the relevance of the number of employees a petitioner has, federal courts have generally agreed 
that Citizenship and Immigration Services (CIS) "may properly consider an organization's small size as one 
factor in assessing whether its operations are substantial enough to support a manager." Family, Inc. v. US. 
Citizenship and Immigration Services, 469 F.3d 13 13, 13 16 (9th Cir. 2006) (citing with approval Republic of 
Transkei v. INS, 923 F.2d 175, 178 (D.C. Cir. 1991); Fedin Bros. Co. v. Suva, 905 F.2d 41,42 (2d Cir. 1990) 
(per curiam); Q Data Consulting, Inc. v. INS, 293 F. Supp. 2d 25, 29 (D.D.C. 2003)). Furthermore, it is 
appropriate for CIS to consider the size of the petitioning company in conjunction with other relevant factors, 
the record nevertheless would not support this position even if taken. 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. 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 in managing the essential function, 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. See 8 C.F.R. tj 214,2(1)(3)(ii). In 
addition, the petitioner's description of the beneficiary's daily duties must demonstrate that the beneficiary 
manages the function rather than performs the duties related to the function. In this matter, the petitioner has 
not provided evidence that the beneficiary will manage an essential function. The petitioner's vague job 
description fails to document that the beneficiary's duties will be primarily managerial. Also, as explained 
above, the record establishes that the beneficiary will primarily be a first-line supervisor of non-professional 
employees andlor will perform non-qualifying operational or administrative tasks. Absent a clear and 
credible breakdown of the time spent by the beneficiary performing his duties, the AAO cannot determine 
what proportion of his duties will be managerial, nor can it deduce whether the beneficiary will primarily 
perform 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). 
EAC 07 147 52528 
Page 8 
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, or a "shell company" that does not conduct business in a regular 
and continuous manner. See, e.g. Systronics Corp. v. INS, 153 F. Supp. 2d 7, 15 (D.D.C. 2001). 
Accordingly, the petitioner has failed to establish that the beneficiary will primarily perform managerial or 
executive duties, and the petition may not be approved for that reason. 
Beyond the decision of the director, the petitioner failed to establish that the beneficiary was employed abroad 
for at least one continuous year in a position that was managerial or executive in nature. 8 C.F.R. $9 
2 14.2(1)(3)(iii)-(iv). 
The petitioner described the beneficiary's duties abroad in a letter dated April 10,2007 as follows: 
From October of 2005 to the Present [the beneficiary] has been our Mexican Company's 
Project Manager. In this position he is responsible for supervising the job execution and 
project management of each job. He does so by establishing a direct line of communication 
between our company and our clients. In addition, he is responsible for supervising that our 
employees follow our construction plans. In this regard, he is responsible for assessing and 
inspecting the job conditions before assigning a crew to the project. He is responsible for 
supervising the supervisors placed for each job. Finally, he is responsible for preparing job 
close reports and assigning our employees job close out duties. He reports directly to the 
Director of Operations. 
The petitioner also submitted an organizational chart for the foreign employer. While the chart shows the 
beneficiary supervising several "crews," the petitioner did not describe the duties of any of the beneficiary's 
subordinate workers. 
Upon review, the record is not persuasive in establishing that the beneficiary was employed abroad in a 
managerial or executive capacity. The petitioner failed to specifically describe the beneficiary's job duties 
abroad. Specifics are clearly an important indication of whether a beneficiary's duties were primarily 
executive or managerial in nature; otherwise meeting the definitions would simply be a matter of reiterating 
the regulations. Fedin Bros. Co., Ltd. v. Suva, 724 F. Supp. 1103, aff'd, 905 F.2d 41. Furthermore, the 
petitioner failed to describe the duties of the beneficiary's purported subordinates "crew." Absent detailed 
descriptions of the duties of both the beneficiary and his purported subordinates, it is impossible for CIS to 
discern whether the beneficiary was "primarily" engaged in performing managerial or executive duties 
abroad. See sections 101(a)(44)(A) and (B) of the Act; see also Matter of Church Scientology International, 
19 I&N Dec. at 604. 
Accordingly, the petitioner has not established that the beneficiary was employed in a primarily managerial or 
executive capacity for one continuous year 'in the three years preceding the filing of the petition, and the 
petition may not be approved for this reason. 
Beyond the decision of the director, the petitioner has failed to establish that it and the foreign employer are 
qualifying organizations. 
EAC 07 147 52528 
Page 9 
The regulation at 8 C.F.R. 3 214.2(1)(3)(i) states that a petition filed on Form 1-129 shall be accompanied by 
"[elvidence that the petitioner and the organization which employed or will employ the alien are qualifying 
organizations." 
 See also 8 C.F.R. 5 214.2(1)(14)(ii)(A). 
 Title 8 C.F.R. 5 214.2(i)(l)(ii)(G) defines a 
"qualifying organization" as a firm, corporation, or other legal entity which "meets exactly one of the 
qualifying relationships specified in the definitions of a parent, branch, affiliate or subsidiary specified in 
paragraph (l)(l)(ii) of this section" and "is or will be doing business." "Doing business" is defined in part as "the 
regular, systematic, and continuous provision of goods andlor services." 
In this matter, in support of its assertion that the foreign employer is "doing business," the petitioner submitted a 
variety of organizational and financial documents. However, these documents are either untranslated, or the 
petitioner has submitted brief English language "summaries" of certain documents. Because the petitioner failed 
to submit certified translations of the documents, the AAO cannot determine whether the evidence supports 
the petitioner's claims. See 8 C.F.R. 5 103.2(b)(3). Therefore, the evidence is not probative and will not be 
accorded any weight in this proceeding. 
Accordingly, the petitioner has failed to establish that the foreign employer is actively "doing business," and, 
thus, has failed to establish that the foreign employer is a qualifying organization. 
An application or petition that fails to comply with the technical requirements of the law may be denied by 
the MO 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 MO 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 MO 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 MO's 
enumerated grounds. See Spencer Enterprises, Inc., 229 F. Supp. 2d at 1043. 
In visa petition proceedings, the burden of proving eligibility for the benefit sought remains entirely with the 
petitioner. Section 291 of the Act, 8 U.S.C. 5 1361. Here, that burden has not been met. Accordingly, the 
appeal will be dismissed. 
ORDER: The appeal is dismissed.