dismissed L-1A Case: Industrial Products Distribution

U.S. Department of Homeland Security 
U. S. Citizenship and Immigration Services 
Administrative Appeals Office (AAO) 
20 Massachusetts Ave., N.W., MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
DATE: 'DEC 2 7 2011 OFFICE: CALIFORNIA SERVICE CENTER FILE: 
INRE: Petitioner: 
Beneficiary: 
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 101 (a)(15)(L) of the 
Immigration and Nationality Act, 8 U.S.C. § 1l01(a)(15)(L) 
ON BEHALF OF PETITIONER: 
SELF-REPRESENTED 
INSTRUCTIONS: 
Enclosed please find the decision of the Administrative Appeals Office in your case. All of the 
documents related to this matter have been returned to the office that originally decided your case. Please 
be advised that any further inquiry that you might have concerning your case must be made to that office. 
If you believe the law was inappropriately applied by us in reaching our decision, or you have additional 
information that you wish to have considered, you may file a motion to reconsider or a motion to reopen. 
The specific requirements for filing such a request can be found at 8 C.F.R. § 103.5. All motions must be 
submitted to the office that originally decided your case by filing a Form I-290B, Notice of Appeal or 
Motion, with a fee of $630. Please be aware that 8 C.F.R. § 103.5(a)(1)(i) requires that any motion must 
be filed within 30 days of the decision that the motion seeks to reconsider or reopen. 
Thank you, 
PerryRhew 
Chief, Administrative Appeals Office 
www.uscis.gov 
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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 appeal will be 
dismissed. 
The petitioner claims that it is engaged in the "distribution of industrial products and supply chain 
management in 12 countries and 156 branches." The petitioner states that it is a wholly-owned subsidiary 
, located in the People's Republic of China. Accordingly, the 
United States entity petitioned United States Citizenship and Immigration Services (USCIS) to classify 
the beneficiary as a nonimmigrant intracompany transferee (L-IA) 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 seeks the 
beneficiary to fill the position of International Trading Desk Manager. 
The director denied the petition on April 9, 2009, concluding that the record contains insufficient 
evidence to demonstrate that: (1) the beneficiary has been or will be employed in a primarily executive or 
managerial capacity; and (2) the beneficiary does not possess at least one continuous year of full-time 
employment abroad within the three years preceding the filing of the petition. 
To establish eligibility under section 101(a)(15)(L) of the Act, the petitioner must meet certain criteria. 
Specifically, within three years preceding the beneficiary'S application for admission into the United 
States, a firm, corporation, or other legal entity, or an affiliate or subsidiary thereof, must have employed 
the beneficiary for one continuous year. Furthermore, 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) further 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 (1)(1 )(ii)(G) of this 
section. 
(ii) Evidence that the alien will be employed in an executive, managerial, or 
specialized knowledge capacity, including a detailed description of the services 
to be performed. 
(iii) Evidence that the alien has at least one continuous year of full time employment 
abroad with a qualifying organization within the three years preceding the filing 
of the petition. 
(iv) Evidence that the alien's prior year of employment abroad was in a position that 
was managerial, executive or involved specialized knowledge and that the alien's 
prior education, training, and employment qualifies him/her to perform the 
intended services in the United States; however, the work in the United States 
need not be the same work which the alien performed abroad. 
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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 (1)(1)(ii)(G) of this section; 
(B) Evidence that the United States entity has been doing business as defined in 
paragraph (1)(1 ) (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 to be addressed in this proceeding is whether the petitioner has established that the 
beneficiary has been and will be employed in a primarily managerial or executive capacity. 
Section 101 (a)(44)(A) of the Act, 8 U.S.c. § 1101(a)(44)(A), provides: 
The term "managerial capacity" means 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 ofthe 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 10 1 (a)(44)(B) ofthe Act, 8 U.S.C. § 1101(a)(44)(B), provides: 
Page 4 
The term "executive capacity" means 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 nonimmigrant petition was filed on March 6, 2009. In a support letter dated February 23, 2009, the 
petitioner explained that the beneficiary will continue to fill the position as International Trading Desk 
Manager and is "responsible for managing all international trade activities between [the petitioner] and its 
wholly-owned subsidiary, [the foreign company], where she has worked for over five (5) years." The 
petitioner described the duties to be performed by the beneficiary in the United States as follows: 
1. [The beneficiary] will be responsible for the trading transaction between [the petitioner] 
and its wholly-owned subsidiary, [the foreign company], including both USA 
manufactured products sold to China and China manufactured products to USA 
specification. 
2. [The beneficiary] will be responsible for coordinating among [the petitioner] branch 
operations and [the foreign company] purchasing and manufacturing operations the 
quotation, order and transaction management process in both English and Chinese 
languages. She will provide direction on new processes in order to assure USA made 
products shipped to China and China manufactured products meet USA customer 
specifications. 
3. [The beneficiary] will also have the responsibility for setting up new systems and 
procedures for global services utilizing her knowledge of both the IT system in [the 
foreign company] and [the petitioner] and the processes being utilized in these 
transactions based upon her [petitioner] experience. 
4. [The beneficiary] will work during both daytime and nighttime schedules to be able to 
communicate real time with [the foreign company] employees in the Chinese language. 
Based upon her close association with [the foreign company] employees and Chinese 
language render her services in this role almost unable to be filled by a citizen of the 
United States. 
On March 13, 2009, the director determined that the petitioner did not submit sufficient evidence to process 
the petition and requested additional evidence. 
In response to the director's request for evidence, the petitioner submitted two global organizational charts for 
the petitioner, one with the position the beneficiary held with the foreign company and the second with the 
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position the beneficiary would fill in the United States. According to the charts, the beneficiary held the 
position of Director of Administration when she was employed with the foreign company. The position is 
supervised by the vice general manager administration and it does not appear that the beneficiary supervised 
any employees. The second chart shows the position the beneficiary would fill in the United States as 
International Trading Desk Manager; it does not appear that the beneficiary supervises any employees. 
The director denied the petition, in part, on the ground that insufficient evidence was submitted to 
demonstrate that the beneficiary will be employed in a primarily executive or managerial capacity by the 
U.S. company. 
On appeal, the petitioner provided the following information regarding the beneficiary'S position abroad 
with the foreign company and the position to be held in the United States for the petitioner as follows: 
The Beneficiary, [the beneficiary] while working in [the foreign company] supervised all 
branch activities engaged in international trade and logistics reporting to the country 
General Manager, _ and the Vice General Manager, _ A more detailed 
chart of organization showing not only the officers above [the beneficiary] but also the 
operations that she directed the trading and logistics of is attached as Exhibit D. The 
USA chart of organization is attached as Exhibit E. 
This position was extremely technical and sophisticated in that all branches of [the 
foreign company] (16 Branches, 173 employees) reported their international transactions 
through [the beneficiary]. This process literally changes daily, weekly and monthly in 
foreign currency, VAT, customs duties and dumping duties that requires an expertise that 
is not generally available in industry and only limited in availability from a certain 
limited specialized freight forwarding companies that are unreliable and inconsistent. 
This skill is not only not available in either China or the USA-but required a continual 
daily up-dating of the changing requirements, in both Chinese and English from the 
respective governmental entities of China and the USA, and the many agencies thereof 
and the communicating and directing and managing these requirement among the 16 
operations and 173 employees in China and the 56 branches and 533 employees in the 
USA, both in English and in Chinese. The Chinese regulations of the Bureau of Foreign 
currency change continuously. The Anti-Dumping Duties assessed by the USA 
Department of Commerce change continuously and are difficult to obtain without skilled 
research. A professional skill that is neither taught not readily sold. The business of the 
Petitioner in both importing and exporting USA products to China and from China to the 
USA is materially dependent upon these skills .... 
On appeal, the petitioner submits two new Global Charts of Organization of the petitioner and 
subsidiaries for the beneficiary'S position abroad and for the position in the United States. According to 
the new charts, the beneficiary held the position of Director of Administration for the foreign company 
and she supervised the "branch operations and trading activities" for 16 branches and 173 employees in 
China and the "branch operations and trading activities" for 56 branches and 533 employees in the United 
States. In the second chart, it shows that the beneficiary would fill the position of International Trade 
Desk Manager in the United States and she would supervise 56 branches and 502 employees. 
Page 6 
Upon review of the petition and evidence, the petitioner has not established that the beneficiary will be 
employed in a managerial or executive capacity. When examining the executive or managerial capacity of 
the beneficiary, the AAO will look first to the petitioner's description of the job duties. See 8 C.F.R. § 
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. 
The defmitions of executive and managerial capacity have two parts. First, the petitioner must show that 
the beneficiary performs the high-level responsibilities that are specified in the defmitions. Second, the 
petitioner must prove that the beneficiary primarily performs these specified responsibilities and does not 
spend a majority of her time on day-to-day functions. Champion World, Inc. v. INS, 940 F.2d 1533 
(Table), 1991 WL 144470 (9th Cir. July 30, 1991). 
Based on the current record, the AAO is unable to determine whether the claimed managerial duties 
constitute the majority of the beneficiary's duties, or whether the beneficiary primarily performs non­
managerial administrative or operational duties. An employee who "primarily" performs the tasks 
necessary to produce a product or provide a service 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 International, 19 I & N Dec. at 604. 
The beneficiary's proposed job description is vague, and states that the beneficiary will be responsible for 
the "trading transaction between [the petitioner] and its wholly-owned subsidiary, [the foreign company], 
including both USA manufactured products sold to China and China manufactured products to USA 
specification"; "coordinating among [the petitioner] branch operations and [the foreign company] purchasing 
and manufacturing operations the quotation, order and transaction management process"; and "provide 
direction on new processes in order to assure USA made products shipped to China and China manufactured 
products meet USA customer specifications." 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 provide any detail or explanation of the 
beneficiary's activities in the course of her daily routine. 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), afJ'd, 
905 F.2d 41 (2d. Cir. 1990). 
In addition, the job duties required of the beneficiary include non-qualifying duties such as: "setting up 
new systems and procedures for global services utilizing her knowledge of both the IT system in [the foreign 
company] and [the petitioner] and the processes being utilized in these transactions based upon her 
[petitioner] experience." Since the petitioner has not explained what employees are supervised by the 
beneficiary, it is not clear if the beneficiary will be providing the services of IT systems and procedures 
development, or will coordinate the branch operations on her own. Again, based on the current record, the 
AAO is unable to determine whether the claimed managerial duties constitute the majority of the 
beneficiary's duties, or whether the beneficiary primarily performs non-managerial administrative or 
operational 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 ofTranskei v. INS, 923 F.2d 175, 177 (D.C. Cir. 1991). 
Page 7 
The job description submitted by the petitioner provides little insight into the true nature of the tasks the 
beneficiary will perform or how her time will be divided among managerial and non-managerial duties. 
In addition, the petitioner has not provided a breakdown of the percentage of time the beneficiary will 
spend on various duties, and the petitioner has not articulated whether each duty is managerial or 
executive. Thus, the AAO must attempt to glean the nature of the beneficiary's proposed duties from the 
vague descriptions submitted. In addition, the petitioner provided two different global organizational charts 
for the position the beneficiary will hold in the United States. In response to the request for evidence, the 
petitioner submitted an organizational chart of the U.S. office indicating that the beneficiary will fill the 
position of International Trading Desk Manager and the chart does not indicate that she supervises any 
employees. However, on appeal, the petitioner submits a second global organizational chart that shows the 
beneficiary will supervise 56 branches and 502 employees. It is not clear why the first organizational chart 
did not indicate this and why the petitioner revealed this information only on appeal. 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, 591-92 
(BIA 1988). 
As discussed above, the beneficiary's job description was not sufficient to establish that she would be 
employed in a primarily managerial or executive capacity, and the petitioner has not identified sufficient 
employees within the petitioner's organization, subordinate to the beneficiary, who would relieve the 
beneficiary from performing routine duties inherent to operating the business. The fact that the 
beneficiary has been given a managerial job title and general oversight authority over the business is 
insufficient to elevate her position to that of an executive or manager as contemplated by the governing 
statute and regulations. 
When examining the managerial or executive capacity of a beneficiary, USCIS reviews the totality of the 
record, including descriptions of a beneficiary's duties and his or her subordinate employees, the nature of 
the petitioner's business, the employment and remuneration of employees, and any other facts 
contributing to a complete understanding of a beneficiary's actual role in a business. The evidence must 
substantiate that the duties of the beneficiary and his or her subordinates correspond to their placement in 
an organization's structural hierarchy; artificial tiers of subordinate employees and inflated job titles are 
not probative and will not establish that an organization is sufficiently complex to support an executive or 
managerial position. An individual whose primary duties are those of a first-line supervisor will not be 
considered to be acting in a managerial capacity merely by virtue of his or her supervisory duties unless 
the employees supervised are professional. Section 10 1 (a)(44)(A)(iv) of the Act. In this case, we have no 
information of the employees supervised by the beneficiary, if any, and thus, we cannot determine if the 
employees supervised are professional. Going on record without supporting documentary evidence is not 
sufficient for purposes of meeting the burden of proof in these proceedings. Matter of SojJici, 22 I&N 
Dec. 158, 165 (Comm. 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. 
Comm. 1972». 
It does not appear that the beneficiary has been employed in a primarily managerial or executive capacity 
for the foreign entity. The petitioner provided a vague and nonspecific description of the beneficiary's 
duties that fails to demonstrate what the beneficiary does on a day-to-day basis. In the request for 
evidence, the director requested that the petitioner submit a definitive statement describing the foreign 
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employment of the beneficiary. The petitioner provided a very vague statement in its response. This 
evidence is critical, as it would have established if the beneficiary held a position of managerial or 
executive capacity by the foreign company. The purpose of the request for evidence is to elicit further 
information that clarifies whether eligibility for the benefit sought has been established. 8 C.F .R. § 
103.2(b)(8). 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). The petitioner did not submit a detailed job 
description of the duties performed by the beneficiary at the foreign company and thus AAO cannot 
determine if the beneficiary was employed by the foreign entity in a managerial or executive capacity. 
On appeal, the petitioner states that the beneficiary's position abroad was "extremely technical and 
sophisticated in that all branches of [the foreign company] (16 Branches, 173 employees) reported their 
international transactions through [the beneficiary]." Without additional information, it is impossible to 
determine the day-to-day duties performed by the beneficiary. Going on record without supporting 
documentary evidence is not sufficient for purposes of meeting the burden of proof in these proceedings. 
Matter ofSoffici, 22 I&N Dec. at 165. 
The petitioner provided two different global organizational charts for the position the beneficiary held abroad. 
In response to the request for evidence, the petitioner submitted an organizational chart of the foreign 
company showing that the beneficiary filled the position of Director of Administration and the chart does not 
indicate that she supervised any employees. On appeal, the petitioner submits a second global organizational 
chart and in this one it shows that the beneficiary supervised "branch operations and trading activities" in 
China and the United States which included 72 branches and 706 employees total. It is not clear why the first 
organizational chart did not indicate this and why the petitioner revealed this information for the first time on 
appeal. 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, 591-92 (BIA 1988). 
The [mal issue to be addressed is whether the petitioner has established that the beneficiary possesses at 
least one continuous year of full-time employment abroad within the three years preceding the filing of 
the petition. In the denial decision, the director noted that the record indicates that the beneficiary was 
admitted to the United States on May 1, 2007, as an L-2 nonimmigrant until April 5, 2009. The 
beneficiary commenced working with the foreign company on March 1, 2001. Thus, the beneficiary was 
working for the foreign company from March 6,2006 until she entered the United States on May 1, 2007, 
thus she was employed by the foreign company for one continuous year within the three years preceding 
the filing of the instant petition on March 6,2009. The AAO will withdraw this portion of the director's 
decision. As noted above, however, the petitioner did not provide sufficient evidence that the position 
held by the beneficiary with the foreign company was in a primarily managerial or executive capacity. 
The petition will be denied for the above stated reasons, with each considered as an independent and 
alternative basis for the decision. 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. § 1361. Here, that 
burden has not been met. Accordingly, the appeal will be dismissed. 
ORDER: The appeal is dismissed.