dismissed L-1A Case: International Freight Forwarding

U.S. Department of Homeland Security 
20 Mass. Ave, N.W., Rrn. A3042 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
Services 
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File: WAC 03 2 1 1 501 94 Office: CALIFORNIA SERVICE CENTER Date: Jw 0 9 
Petition: Petition for a Nonimrnigrant Worker Pursuant to Section 101(a)(15)(L) of the Immigration 
and Nationality Act, 8 U.S.C. 1 101(a)(15)(L) 
IN BEHALF OF PETITIONER: SELF-REPRESENTED 
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. 
4 
Fbert P. Wiemann, Director 
Administrative Appeals Office 
WAC 03 21 1 50194 
Page 2 
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 AAO will dismiss the appeal.' 
The petitioner seeks to employ the beneficiary temporarily in the United States as an L-IA nonimmigrant 
intracompany transferee pursuant to section 10 l(a)(15)(L) of the Immigration and Nationality Act (the Act), 8 
U.S.C. 5 1101(a)(15)(L). The U.S. petitioner, a corporation organized in the State of New York and licensed 
to do business in the State of Califomia, is engaged in international freight forwarding. It seeks to employ the 
beneficiary as its marketing and sales manager in its Califomia office. The petitioner claims that it is a branch 
of Alisped S.P.A., located in Prato, Italy. 
The director denied the petition concluding that the petitioner did not establish that the beneficiary will be 
employed in the United States in a primarily managerial or executive capacity. 
The petitioner subsequently filed an appeal. The director declined to treat the appeal as a motion and 
forwarded the appeal to the AAO for review. On appeal, the petitioner's former counsel asserts that the 
denial was arbitrary and capricious, and demonstrated a clear abuse of discretion. In addition, she alleges that 
the beneficiary clearly qualifies for the classification sought, and urges reconsideration on this matter. 
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 m 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. § 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 
In a letter dated May 13, 2005, counsel advised the AAO that she no longer represents the petitioner in this 
matter. As a result, the petitioner will be treated as self represented. 
WAC 03 211 50194 
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 himiher 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 this matter is whether the beneficiary will be employed by the United States entity in a 
primarily managerial or executive capacity. 
Section 101(a)(44)(A) of the Act, 8 U.S.C. 9 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. 9 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. 
WAC 03 21 1 50194 
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In the initial petition, the petitioner stated that the beneficiary would be acting as the marketing and sales 
manager for the petitioner's California office. With regard to his proposed duties, the petitioner stated in a 
letter dated July 9, 2003: 
As Manager of Sales & Marketing, [the beneficiary] will direct and coordinate activities of 
the Sales and Marketing department of [the petitioner], a New York Corporation, duly 
authorized to transact business in the State of California, to obtain optimum efficiency and 
economy of operations and maximize profits. He will plan and develop organization policies 
and goals, and implement goals through subordinate administrative personnel. He will 
coordinate activities of the Sales & Marketing department, to effect operational efficiency 
and economy. He will direct and coordinate promotion of services performed to develop new 
markets, increase share of market, and obtain competitive position in [the] industry. He will 
analyze the Sales & Marketing department's budget requests to identify areas in which 
reductions could be made, and allocated operating budget. He will confer with administrative 
personnel, and [review] activity, operating, and sales reports to determine changes in 
programs or operations required. He will direct preparation of directives to department 
administrator outlining policy, program, or operations changes to be implemented. 
On July 17,2003, the director requested additional evidence establishing that the beneficiary was qualified for 
the benefit sought. Specifically, the director requested evidence supporting the petitioner's claim that the 
beneficiary had been acting in a primarily managerial or executive capacity while abroad, and that he would 
continue working in a primarily managerial capacity while in the United States. The director required the 
submission of quarterly wage reports for both the New York and the California offices of the petitioner, and 
further requested a detailed description of all employees of the U.S. petitioner including their position titles, 
duties, and education level required. 
In a response dated August 8, 2003, the petitioner submitted a detailed response accompanied by the 
documentation requested by the director. The petitioner's response included copies of organizational charts 
for both the U.S. and foreign entities, copies of the petitioner's quarterly wage reports, and an extensive 
summary of the beneficiary's duties. 
On August 21, 2003 the director denied the petition. The director determined that the evidence in the record 
did not establish that the beneficiary would be employed in a primarily managerial or executive capacity 
while in the California office. Specifically, the director concluded that the proposed duties of the beneficiary, 
in light of the California office's organizational structure, included a large percentage of non-qualifling tasks 
to be performed by the beneficiary himself. In addition, the director concluded that the California office had 
not demonstrated an organizational complexity in which a full-time managerial position would be supported. 
On appeal, former counsel for the petitioner alleges that this interpretation is erroneous, and reasserts that the 
beneficiary is clearly qualified for the classification sought. 
The AAO, upon review of the record of proceeding, concurs with the director's finding. Specifically, upon 
review of the beneficiary's stated duties and the organizational structure under which he is intended to 
function, it appears that the beneficiary will not be acting in a primarily managerial or executive capacity. 
WAC 03 21 1 50194 
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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). In this case, the description of the 
beneficiary's duties includes numerous marketing and sales duties essential to the operation of the business 
and its success in the marketplace. Furthermore, in response to the request for evidence, the petitioner 
confirms that the beneficiary's duties will include conducting all purchases on behalf of the petitioner, and 
devising marketing strategies for both offices. The beneficiary would clearly be engaging first-hand in these 
non-managerial tasks, and would therefore be contributing to the establishment of the company's services. 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). The actual duties themselves reveal the true nature of the employment. 
Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1 103, 1108 (E.D.N.Y. 1989), aff'd, 905 F.2d 41 (2d. Cir. 1990). 
In contrast to this interpretation, the petitioner asserts that the beneficiary will execute these tasks through 
subordinate administrative personnel, and that he will oversee the entire sales and marketing department. The 
problem with this assertion, however, lies in the structure of the California office. As confirmed by the 
organizational chart provided in response to the request for evidence, the beneficiary would be overseeing two 
employees: the operations and customer service representative, and the bookkeepedair ocean operations 
supervisor. The beneficiary also purportedly supervises an employee in the New York office identified as 
"marketing and human resources." Based on the petitioner's representations, her marketing duties are limited 
to a particular product andfor geographical region, thus she would not relieve the beneficiary from performing 
the majority of the petitioner's marketing duties. There 1s no mention of any other administrative staff or 
marketing or sales personnel to execute the goals identified 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 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)). 
Also significant is the repeated contention that a significant portion of the beneficiary's time would be devoted 
to the supervision and direction of the personnel in the California office. Specifically, the petitioner claims 
that the beneficiary will hire and fire the personnel, direct the activities of the customer service department, 
attain goals through subordinate administrative personnel, and oversee the work of the marketing manager. 
Although the beneficiary is not required to supervise personnel, if it is claimed that his duties involve 
supervising employees, the petitioner must establish that the subordinate employees are supervisory, 
professional, or managerial. See 3 101(a)(44)(A)(ii) of the Act. 
Though requested by the director, the petitioner did not provide the level of education required to perform the 
duties of his subordinate employees. In evaluating whether the beneficiary manages 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 1101(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 
WAC 03 21 1 50194 
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the particular field of endeavor. Matter of Sea, 19 I&N Dec. 8 17 (Cornrn. 1988); Matter of Ling, 13 I&N 
Dec. 35 (R.C. 1968); Matter of Shin, 11 I&N Dec. 686 (D.D. 1966). 
Therefore, the AAO must focus on the level of education required by the position, rather than the degree held 
by a subordinate employee. The possession of a bachelor's degree by a subordinate employee does not 
automatically lead to the conclusion that an employee is employed in a professional capacity as that term is 
defined above. In the instant case, the petitioner has not, in fact, established that a bachelor's degree is 
actually necessary, for example, to perform the duties associated with the beneficiary's subordinate 
employees. Although specifically requested in the director's request for evidence, the petitioner failed to state 
the minimum level of education required to perform the duties of the positions they fill. Failure to submit 
requested evidence that precludes a material line of inquiry shall be grounds for denying the petition. 8 C.F.R. 
5 103.2(b)(14). Thus, the petitioner has not established that these employees must possess an advanced 
degree, such that they could be classified as professionals. Nor has the petitioner shown that either of these 
employees supervise subordinate staff members or manage a clearly defined department or function of the 
petitioner, such that they could be classified as managers or supervisors. Thus, the petitioner has not shown 
that the beneficiary's subordinate employees are supervisory, professional, or managerial, as required by 
section 10 1 (a)(44)(A)(ii) of the Act. 
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. For this reason, the petition may not be approved. 
Beyond the decision of the director, the petitioner has not submitted sufficient and credible evidence to 
establish a qualifying relationship between the United States and the foreign entity pursuant to 8 C.F.R. 9 
2142(l)(l)(ii)(G). Specifically, the petitioner submitted copies of share certificates evidencing that Adriano 
Cerretelli owns four shares of the U.S. petitioner. The petitioner also provided a copy of the Minutes of the 
Special Meeting of Shareholders, dated July 6, 1999, which states that Alisped Spa, the claimed foreign 
entity, owns 100% of the petitioner's outstanding shares. This inconsistency has not been clarified. 
Furthermore, the petitioner provides a CODY of a filing with the Italian Chamber of Commerce. which 
by three 
who owns 25%. The petitioner alleges in support ofthe qualifying 
le majority owner of both companies and thus a qualifvinrr rwshin 
3owever he is not the majority owner of the foreign entity, for the combined share - qua1 his share for voting purposes. Furthermore, as noted above, the ownersh~p of the U.S. 
entity (i.e., whether it is owned by the foreign corporation o is unclear. The 
petitioner is obligated to clarify the inconsistent and conflicting testimony by independent and ob'ective 
evidence. Matter offlo, 19 I&N Dec. 582, 591-92 (BLA 1988). Simply stating that Jwns 
both companies does not qualify as independent and objective evidence. Going on record without supporting 
documentary evidence is not sufficient for purposes of meeting the burden of proof in these proceedings. 
Matter of Soflci, 22 I&N Dec. at 165 (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. 
Comm. 1972)). For this additional reason the petition may not be approved. 
WAC 03 21 1 50194 
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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). 
In visa petition proceedings, the burden of proving eligbility 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 
director's decision will be affirmed and the petition will be denied. 
ORDER: The appeal is dismissed.