dismissed L-1A Case: International Development

U.S. Department of Homeland Security 
20 Mass. Ave., Rm. A3042 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
FILE: WAC 03 006 53648 Office: CALIFORNIA SERVICE CENTER Date: 
PETITION: Petition for a Nonimmigrarit Workei Pursuant to Section I0 1 (a)(] 5 j(L,) of the Imrr~igrat~on 
and Nationality Act. 8 U.S.C. Ij 1101(a)(15)(L) 
IN BEHALF OF PETITIONER: 
This is the decision of the Administrative Appeals Office in your case. All documents have b, rhen . returnzd to 
the office that originally decided your case. Any f~rther inquiry must be made to that office. 
b 
Administrative Appeals Office 
WAC 03 006 53648 
Page 2 
DISCUSSION: The nonimmigrant visa petition was denied by the Director, California Service Center. The 
matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. 
The petitioner is described as an international relief and development agency. It seeks authorization to employ 
the beneficiary temporarily in the United States as director of project development. The director determined that 
the petitioner had not established that the beneficiary would be employed in a managerial or an executive 
capacity. 
On appeai, counsel asserts that the beneficiary will be employed in a managerial and executive capacity. 
'To establish L-1 eligibility under section 101(a)(15)(L) of the Immigration and Nationality Act (the Act), 8 
U.S.C. 5 1 101 (a)(] 5)(L), the petitioner must demonstrate that the beneficiary, within three years preceding the 
beneficiary's application for admission into the United States, has been employed abroad in a qualifying 
managerial or executive capacity, or in a capacity involving specialized knowledge, for one continuous year by a 
qualifying organization and seeks to enter the United States temporarily in order to continue to render his or her 
services to the same employer or a subsidiary or affiliate thereof in a capacity that is managerial, executive, or 
involves specialized knowledge. 
The regulation at 8 C.F.R. fj 214.2(1)(3) states that an individual petition filed on Form 1-129 shall be 
accompanied by: 
(i) Evidence that the petitionel anci the crganization which employed or will employ the alien 
are qualifying organizations as defined in paragraph (I)(l)(ii)(G) ofthis section. 
(51 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. 
7:ie Unired States petitioner Food for the Hungry International was incorporated in 1980 and states that it is an 
afiliatg of Korean Food for the Hungry International, a Korean entity. The petitioner indicated 1,292 employees 
'ail the'~orm 1-129 and listed approximately $38 million in gross annual income The Form 1-129 affirms the 
alien is not coming to the United States to open a new office. The petitioner seeks to employ the beceficiary ss 2 
dire~tor af projzct development at an annual salary of $36.000. 
At issuz in this proceeding is whether the petitioner ha5 established that the beneficiary will bz anpioyecl 
primarily i~ a managerial or executive capacity. 
Section 1 !? 1 (a)(44)(A) of the Act, 8 U.S.C. 5 1 101 (a)(44)(A), provides: 
7 
ilie ;elm "managerial capacity" means an assignment within an organization in which the 
employee primarily- 
i. manages the organization, or a department, subdivision, funciior?, or component of :he 
~rganization; 
WAC 03 006 53648 
Page 3 
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 
sr~bdivision 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 i 0 1 (a)(44)(B) of the Act, 8 U.S.C. 5 I 10 1 (a)(44)(B), provides: 
rhe 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 ievel executives, the board 
of directors. or stockholders of the organization. 
In its initial petition, the petitioner stated: 
[the beneficiary] will manage the. fund raising department and major donor events by various 
means such as hosting special events, etc. He will recruit international staff, train and send the~n 
to various FHI office overseas, and do member care (management) for the staff. He will set up 
staff regulations, policies and procedures for Korean American Food for the Hungry (KAHFI). 
He will speak at Korean churches and organize branches worldwide. He will represen- 
and attend International meetings. 
On October 11, 2002, the director issued a request for evidence. l'he director stated Citizenship & Immigration 
Sewices (CIS) wss unable to identify the beneficiary's name and job title in the U.S. organizational chart. The 
director requested a copy of the organization's line and b!ock orgai~izational chart describing its managerial 
WAC 03 006 53648 
Page 4 
hierarchy and staffing levels. The director requested that this chart include the current names of all executives, 
managers, supervisors, and the number of employees within each department or subdivision. The director also 
requested that the beneficiary's position be clearly identified and to list all employees under the beneficiary's 
supervision by name and job title. 
On October 17, 2002, the petitioner responded to the director's request for evidence and submitted a second U.S. 
organizational chart. In his decision, the director found that the organizational chart indicated that there are no 
employees working under the beneficiary. The U.S. organizational charts indicated that the staff will be recruited 
as funding permits. The director found that the evidence failed to persuasively demonstrate that the beneficiary 
has been or will be managing a subordinate staff of professional, managerial, or supervisory personnel who will 
relieve him from providing the petitioner's services or producing the product. Therefore, the director concluded 
the beneficiary will not be performing in a managerial or executive capacity. 
On appeal, counsel asserts that the beneficiary will be performing in a managerial and executive capacity. 
Therefore, the petitioner must establish that the beneficiary is acting primarily in an executive capacity and in 
a managerial capacity by providing evidence that the beneficiary's duties satisfy each of the four elements of 
the two distinct statutory definitions. When examining the executive or marlagerial capacity of the 
beneficiary, the AAO will look first to rhe petitioner's desr:ription 2f the job duties. See 8 C.F.K. 5 
2 14.2(1)(3)(ii). 
On appeal, the petitioner augments the beneficiary's position description and smtes the beneficiary is a manager 
of professional employees. Specifically. the petitioner states "[the beneticiary! will mapage a subdivision of 
Korean American Food for the Hungry International (FHI) locations. not only Korean Food for the Hungry." The 
petitioner explains ''Lilt is not practical for us to hirz those employees right now since his visa has not been 
approved and we are 'ust creating this company." Additionally, the petitioner states the beneficiary "has 
significant authority over the essential function KAHFI. He will be setting up the procedures, policies and goals. 
He will make executive decisions on the fundraising projects, informational sessions and other events to establish 
and promote the new branch of FHI." 
The AAO notes the record is not clear as to which organization the petitioner is clalming the beneficiary would 
manage. The petitio~er is U.S. based Food for the Hungry International. Yet. the petition and appeal state the 
beneficiary "will manage a subdivision of Korcan American Food for the Hullgry International (KAHFl), the 
fundraising department." Additionally, despite the petitioner's claim on ihe Form 1-129 that the beneficiary is not 
coming to the U.S. to open a new office, the petitioner states the beneficiary wiru!:! be "brought in to start the 
department. . . ." Tht: organizztional chart provided by the petitioner states the Korea America Board of 
Directors was ilot yet formed at the time the petition was filed in October 2002. Therefore, the evidence 
provided by the petitioner contains inconsistencies describing the subdivision or department that the beneficiary 
will be managing. It is incumbent upon the petitioner to resolve any inconsistencies in the record by 
independent objective evidence. Any attempt to explain or reconciie such incc~nsistencies will not suffice 
unless the petitioner submits competent objective evidence pointing to where (he trilfh iiss. ild~tter. of Hu, 19 
I&N Dec. 582,591-92 (BIA 1988). 
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The petitioner's vague descriptions provide insufficient detail to allow CIS to determine many of the 
beneficiary's daily or weekly responsibilities. Even though the petitioner states the beneficiary will have 
control over the day-to-day operations the petitioner has not defined in the record what those operations will 
be. Going on record without supporting documentary evidence is insufficient to meet the burden of proof in 
these proceedings. Ikea US, Inc. v. INS, 48 F. Supp. 2d 22, 24-5 (D.D.C. 1999); see generally Republic of 
Transkei v. INS, 923 F.2d 175 (D.C. Cir. 1991) (discussing burden the petitioner must meet to demonstrate 
that the beneficiary qualifies as primarily managerial or executive); Matter of Treasure Craft of California, 14 
I&N Dec. 190 (Reg. Comm. 1972). 
In addition, the petitioner declares on appeal that the beneficiary "would spend the first year mostly to make the 
Korean American Community aware of what FHI does, how it fights hunger and poverty, through informational 
sessions brochures, etc." These duties appear to consist of primarily marketing tasks. Marketing duties, by 
definition, qualify as performing a task necessary to provide a service or product. An employee who primarily 
performs the tasks necessary to produce a product or to provide services is not considered to be employed in a 
managerial or executive capacity. Matter of Church Scientology International, 19 I&N Dec. 593, 604 (Comm. 
1988). 
Counsel's assertions are not persuasive that the beneficiary is a manager and meets all the criteria of a manager as 
required by Section 10 l(a)(44)(A) of the Act, 8 U.S.C. $ 1 10 l(a)(44)(A). The petitioner admits that there is not 
yet a staff for the beneficiary to manage. Therefore, the beneficiary does not satisfy the requirement of 
supervising and controlling che work of other supervisory, professional or managerial employees, or manages an 
essential function within the organization, or a department or subdivision of the organization as required pursuant 
to the regulations at 8 U.S.C. $ 1 101(a)(44)(A)(ii). The beneficiary will not manage a staff. The petitioner has not 
sufficiently defined the essential function the beneficiary will manage. 
On appeal, the petitioner also states that the beneficiary is an executive. 1 he petitioner states that the beneficiary , 
will direct the function of the hndraising department, set up regulations, policies and procedures, and . . . "have 
only general supervision from higher executives." The petitioner adds that the beneficiary will "make executive 
decision on the fundraising projects." 
The petitioner's arguments are not persuasive. In reviewing the job duties provided in the record, the AAO finds 
the beneficiary's duties are vaguely described. The petitioner does not describe or provide evidence of the 
procedures and goals the beneficiary will establish, nor does the petitioner describe the "funciraising activities" 
about which the beneficiary will "make executive decisions." 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. 1 103 (E.D.N.Y. 1989), afS'4 905 F.2d 4 1 (2d. Cir. 1990). 
On appeal, the petitioner states, in part, that the beneficiary "will have wide latitude in setting up regulations, 
policies and procedures based on his previous experience with our organization." The petitioner d~d not 
enumerate any regulations or procedures and is again restating the language describing duties of an executive 
under section 101(a)(44)(B) of the Act. Additionally, as discussed above, the beneficiary is directly 
performing and providing the services of the organization. The vague description of the beneficiary's duties 
WAC 03 006 53648 
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and responsibilities indicates that the beneficiary will provide the necessary services to the petitioner to allow its 
continued operation. An employee who primarily performs the tasks necessary to produce a product or to 
provide services is not considered to be employed in a managerial or executive capacity. Matter of Church 
Scientology International, I9 I & N Dec. at 604. 
On review, the record as presently constituted is not persuasive in demonstrating that the beneficiary will be 
employed in a primarily managerial or executive capacity. The petitioner is an international relief and 
development agency. However, as discussed above, it is unclear in which organization or subdivision the 
beneficiary will be working. The record does not establish that a majority of the beneficiary's duties will be 
directing the management of the organization. The record indicates that a preponderance of the beneficiary's 
duties will be directly performing the operations of the organization. In other words, the beneficiary would be 
solely responsible for introducing . . , as there are no other employees under the management of the beneficiary 
introducing the new organization or subdivision (KAHFI) to the Korean American community. The descriptions 
of the beneficiary's primary duties indicate that the beneficiary will not be primarily acting in a qualifying 
managerial or executive capacity. For this reason, the petition may not be approved. 
Beyond the decision of the director, the petitioner's description of the affiliate relalionship of the 
organizations does not meet exactly the definitions constituting a qualifying relationship between the United 
States and the foreign entity pursuant to 8 C.F.R. 5 2i4.2(1)(l)(ii)(G). Neither the petitioner nor the foreign , 
entity are accounting firms, therefore the regulations at 8 C.F.R. fj ?14.2(1)(l)(ii)(L)(3) do not apply, as 
alleged by counsel. The petitioner has therefore failed to establish a qualifying relationship between the two 
organizations. For this additional reason, the appeal will be dismissed. 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. UnitedStates, 
229 F. Supp. 2d 1025, 1043 (E.D. Cal. 2001). ufd. 345 F.3d 683 (9th Cir. 2003); see also Dor v. 11L7, 891 
F.2d 997, 1002 n. 9 (2d Cir. 1989)tnoting that the AAO reviews appeals on a de novo basis). 
In visa petition proceedings, the burden of proving eligibility for the benefit sought remains entirely with the 
petitioner. Section 291 of the Act, 8 1J.S.C. 3 1361. tlere, that burden has not been met. 
ORDER: The appeal is dismissed.