dismissed L-1A Case: International Freight Forwarding

U.S. Department of Homeland Security 
20 Massachusetts Ave.. N.W.. Rm. A3042 
Washington. DC 20529 
U.S. Citizenship 
and Immigration 
Services 
11 1, 
File: WAC-04-043-53490 Office: CALIFORNIA SERVICE CENTER Date: \. 
If 
Petition: Petition for a Nonimrnigrant Worker Pursuant to Section 101(a)(15)(L) of the Immigration 
and~ationality Act, 8 I1.S.C. 5 1 10 l(a)(l 5)(L) 
IN BEHALF OF PETITIONEX: 
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INSTRUCTIONS: 
This is the decision'of the Administrative Appeals Office in your case. All documents have been returned to 
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the office that originally decided your case. Any further inquiry must be made to that ofice. 
1 Robert P. Wiemann, Director 
Adrninistrative Appeals Office 
WAC-04-043-53490 
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DISCUSSION:   he Director, California Service Center, denied the petition for a nonimmigrant visa. The 11 
matter is now before the Administrative Appeals Office (AAO) on appeal. The AAO will dismiss the appeal. I! 
I: The petitioner filed this nonimmigrant petition seeking to extend the employment of its Vice 
PresidentIGeneral Manager as an L-1A nonimmigrant intracompany transferee pursuant to section 
I1 101(a)(I 5)(L) of the Immigration and Nationality Act (the Act), 8 U.S.C. $ 1 10 I(a)(15)(L). The petitioner is 
a corporation organized in the State of California that operates as an international freight forwarder. The I petitioner claims that it is the subsidiary-of ., located in 
Shanghai,China. The beneficiary was initially approved for L-1 status in the United states, and the petitioner 
now seeks to extend the beneficiary's stay. 
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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. 
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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, counsel for the petitioner asserts that the petitioner 
/I has shown that the beneficiary will be employed in a primarily managerial or executlve capacity, and that the 
director disregarded evidence submitted in response to a request for evidence. Counsel further suggests that 
the director erronedus~~ based his decision on the small staff size of the petitioner. In support of these 
assertions, counsel submits a brief and previously provided evidence. 
To establish eligibility for the L-1 nonimmigrant visa classification, the petitioner must meet the criteria 
outlined in section )Ol(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 wifhin three years preceding the beneficiary's application for admission into the United 
States. In addition, the beneficiary must seek to enter the Unlted States temporarily to continue rendering his I1 or her services to the same employer or a subsidiary or affiliate thereof in a managerial, executlve. or 
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specialized knowledge capacity. 
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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 organizatiorls as defined in paragraph (I)(l)(ii)(G) of this section. 
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(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 
abr4ad with a qualifying organization within the three years preceding the filing of 
the petition. 
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(iv) ~vihence 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 I education, training, and employment qualifies himther to perform the intended 
seiices in the United States; however, the work in the United States need not be the 
sa4e work which the alien performed abroad. 
The issue in the prdsent matter is whether the beneficiary will be employed by the United States entity in a 
11 primarily managerial or executive capacity. 
Section 10l(a)(44)(b) of the Act, 8 U.S.C. § I LOl(a)(44)(A), defines the term "managerial capacity" as an 
assignment within organization in which the employee primarily: 
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(i) manages the organization, or a department, subdivision, function, or component of 
the 'organization; 
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(ii) supervises and controls the work of other supervisory, professional, or managerial 
em?loyees. or manages an essential function within the organization, or a department 
or s,ubdivision of the organization; 
(iii) if another employee or other employees are directly supervised, has the authority to 
hir; 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, 
funhions at a senior level within the organizational hierarchy or with respect to the 
funLtion managed; and 
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(iv) exefcises discretion over the day to day operations of the activity or function for 
whi'ch the employee has authority. A first line supervisor is not considered to be 
actiCg in a managerial capacity merely by virtue of the supervisor's supervisory 
duties unless the employees supervised are professional. 
Section 10l(a)(44)(~) of the Act, 8 U.S.C. 5 1 IOl(a)(44)(B), definer the term "executive capacity" as an 
assignment within an organization in which the employee primarily: 
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(i) directs the management of the organi~ation cr a major con~ponent or function of the 
organization; 
(iij establishes the goals and policies of the organization, component, or function; 
(iii) exercises wide latitude in discretionary decision making; and 
(iv) rece,ives only general supervision or direction from higher level executives, the board 
of directors, or stockholders of the organization. 
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In a letter submitted with the initial petition on December 3, 2003, the petitioner described the beneficiary's 
job duties as follows: 
In executive capacity Beneficiary primarily directs the management of the organization; 
establish the goals and policies of the organization; 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. Beneficiary's duties 
include conducting general administration affairs of the company, acting as liaison and 
representative for the petitioner's foreign parent in the U.S. marketing the services of the 
parent company, engaging in long-range planning and identifying business opportunities in 
the U.S. arid international markets, directing the business activities, and supervising other 
managers and professionals. 
For the managerial capacity, beneficiary primarily manage [sic] the organization. Supervise 
and control the work of other supervisory, professional, or managerial employees, has the 
authority to hire and fire or recommend those as well as other personnel actions such as 
promotion and leave authorization, exercise direction over the day-to-day operations of the 
activity or function for which the employee has authority. 
On December 13,2003, the director requested additional evidence. In part, the director requested: (1) a more 
detailed description of the beneficiary's duties in the United States, including an indication of the percentage 
of time she devotes to each duty; and (2) the titles and duties of the beneficiary's subordinates. 
In a response dated January 5, 2004, the petitioner submitted a statement that indicates that the beneficiary 
invests 65 percent df her time acting as the petitioner's general managerlvice president, and 35 percent of her 
time acting as the petitioner's sales department manager. The petitioner further described the beneficiary's 
duties as follows: 
Vice ~resident/~eneral Mana~er . . . 
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Percentage of Time Spent on the following duties: 5% 
Set up the organization and establishes the goals and policies nf the organization: 
Percentage of Time Spent on the following duties: 40% 
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Conducts general administration affairs of the company; 
~xercises direction over day-to-day operations of the activity or function for which 
the krnployee has authority; 
Exercises wide latitude in discretionary decision-making and receives only general 
supervision or direction from higher level executives, the board of directors, or 
shareholders of the organization; 
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Manages the organization, arranges assignments and supervises and controls the 
work of other supervisory, professional, or managerial employees; 
Has the authority to hire and fire or recommends those as well as other personnel 
actions such as promotion and leave authorization; 
Percentage of Time Spent on the following duties: 20°/o 
Acts as liaison and representative for the petitioner's foreign parent company, and 
~rovides the latest market trend of North America to the Darent comDanv to hel~ x - 
them adjust business strategy of 
Engages in long-term planning s opportunities in the U.S. and 
international markets; 
Directs the business activities, and supervises other managers and professionals with 
their business activities; 
Percentage of Time Spent on the following duties: 20% 
Visits customers and maintains good relationship with them as well as the main 
steamship lines used . . . 
Percentage of Time Spent on the following duties: 15% 
~ed~s an [sic] keen eye on the new'Folieies and regulations coming out constantly 
from the U.S. government related to this industry, makes sure that both the U.S. 
office and the foreign parent company understand and fully comply; attends 
workshops or lectures given by government units. like Los Angeles Custom House or 
steamship lines. 
Sales Department Mana~er (Business Department I) . . . 
Percentage of Time Spent on the following duties: 25% 
Establishes and implements policies, goals and procedures for the department; 
Formulates overall business plans and projections based on company's business 
development; 
Percentage of Time Spent on the following duties: 40% 
Contacts business. customers and trade associations to establish and expand business 
network; 
WAC-04-043-53490 
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Negotiates with customers, approves business contracts to take orders from 
customers, and sends the orders to Operation Department for them to arrange for 
pickup of freight or cargo for delivery to container freight stations; 
Receives sales leads from overseas, decides selling rate based on the buying cost and 
the, market; 
Reports to PresidentfCEO with regards to business performance target, business plan, 
business volume and business improvement plan. 
Percentage of Time Spent on the following duties: 35% 
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Trains sales representatives, reviews monthly business reports. Summarizes business 
conducted each month and reports to President for future operation adjustment; 
To arrange work schedules and supervise sales person's activities; 
Exchanges update information with other companies in the same industry; 
Makes regular calls to major customers to get first hand feedback and commelits. 
The petitioner further described the duties of the beneficiary's subordinates, including an operation 
department manager. financial department manager, administrative department manager, sales/import 
representative, and freight clerk. 
On January 23, 2004, the director denied the petition. The director determined that the petitioner did not 
establish that the beneficiary wiil be employed in the United States in a primarily managerial or executive 
capacity. Specifically, the director stated the following: 
[J]t appears that the beneficiary has been andloi will be performing many aspects of the day- 
to-day operations of the business. 
The information provided by the pe~itioner describes the beneficiary's duties only in broad 
and general terms. There is insufficient detail regarding the actual duties to be performed by 
the beneficiary, and the percentage of time devoted to these duties. Further, some of the 
described duties such as conducts general administration affairs and visits customers have not 
been demonstrated to be managerial or executive responsibilities. 
The petitioning entity does not possess the organizational complexity to warrant having an 
executive. 
The record indicates that a preponderance of the beneficiary's duties will be directly 
providing the services of the business. The petitioner has provided no comprehensive 
description of the beneficiary's duties that would demonstrate the beneficiary would be 
managing the organization, or managing a department, subdivision, function, or component 
of the company. The petitionel has not shown that the beneficiary would be functioning at a 
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WAC-04-043-53490 
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senior level within an organizational hierarchy. Further, the petitioner's evidence is not 
persuasive /:in establishing that the beneficiary will be managing a subordinate staff of 
professionail, managerial, or supervisory personnel who relieve him from performing non- 
qualifying huties. 
On appeal,  counsel^ asserts that the petitioner has shown that the beneficiary will be employed in a primarily 
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managerial or executive capacity. Counsel alleges that the language used in the director's decision shows that 
he failed to fully consider evidence submitted in response to the request for evidence. Counsel cites the 
Board of Immigration Appeals decision in Matter of Church Scientology International, 19 I&N Dec. 593 
(Comm. 1988), and states that the present case is distinguishable, as the beneficiary managed a much larger 
staff abroad and the petitioner provided a more detailed description of the beneficiary's duties in the United 
States. 
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Counsel further citds the decision of the U.S. Court of Appeals for the Ninth Circuit in Boyang v INS, 67 F.3d 
305 (9th Cir. 1995)l in which the court upheld CIS'S determination that the beneficiary who supervised one 
clerical employee &as not employed in a primarily managerial or executive capacity. Counsel states that the 
present case is distinguishable, in that the beneficiary "oversees three managerial employees with a total staff 
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of five (5)" Counsel suggests that the director erroneously based his decision on the small staff size of the 
petitioner. Counsel further states that, "[als a general manager, the beneficiary spends most of her time 
supervising and directing the work of other managerial employees, setting long-term strategy and idcctiQing 
business opportunities in the U.S. market, and other managerial duties." Counsel cites the decision of the 
U.S. District Court for the Northern District of Georgia in Mars Jewelers, Inc. v. INS, 702 F.Supp. 1570 (N.D. 
Ga. 1988) to stand lfor the proposition that a beneficiary can perform some non-qualifying tasks and still be 
deemed to be employed in a primarily managerial or executive capacity. 
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. 
242()(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 petitioner must specifically state whether the beneficiary is primarily employed in a 
managerial or executive capacity. A beneficiary may not claim to be employed as a hybrid 
"executivelmanager" and rely on partial sections of the two statutory definitions. 
In the instant case, the petitioner asserts that the beneficiary is primarily engaged in both managerial duties 
and executive dutids. To sustain such an assertion, the petitioner must establish that the beneficiary meets 
each of the four criteria set forth in the statutory definition for executive duties under section 10l(a)(44)(B) of 
the Act, and the rdatutory definition for managerial duties under section lOl(a)(44)(A) of the Act. At a 
minimum, the petitioner must establish that the beneficiary is primarily employed in one or the other capacity. 
See 8 C.F.R. 5 214.2(1)(3)(ii). 
The job description& submitted for the beneficiary do not establish that she will be employed in a primarily 
managerial or execdtive capacity. The petitioner indicates that the beneficiary will devote 35 percent of her 
time to acting as the petitioner's sales department manager. Within that portion of the beneficiary's duties. 
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WAC-04-043-53490 
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she will spend 401, percent of her time performing non-qualifying sales functions such as ''[contacting1 
business[es], customers and trade associations to establish and expand [the petitioner's] business network." 
The petitioner provided that the beneficiary will spend 35 percent of her time as the sales department manager 
performing a diverJe group of duties, some of which include non-qualifying tasks such as "[making] regular 
calls to major cust!men to get first hand feedback and comments." The petitioner stated that, as the sales 
department manager, the beneficiary will spend 25 percent of her time "[establishing] and implement[ing] 
policies, goals and brocedures for the department; [and] [formulating] overall business plans and projections 
based on [the] company's business development." Yet, such a broad description of this portion of the 
beneficiary's dutied does not indicate what actual tasks she will perform. The actual duties themselves reveal /I the true nature of the employment. Fedin Bros. L'o.. Ltd. v. Suva, 724 F. Supp. 1103, 1108 (E.D.N.Y. 1989), 
*ff.d, 905 F.2d 41I1(2d. Cir. 1990). Accordingly, the time the beneficiary invests in acting as the sales 
I' department manager does not constitute acting in a managerial or executive capacity. 
The petitioner indiLates that the beneficiary will devote 65 percent of her time to acting as the petitioner's 
general managerlvice president. Within that portion of the beneficiary's duties, she will spend 40 percent of 
her time "[conducting] general administration affairs of the company," among other duties. However, this 
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portion of the beneficiary's duties provides no detail regarding her actual tasks beyond paraphrasing the 
statutory definitions for managerial and executive capacity as provided in sections 10 1(a)(44)(A) and (H) of 
the Act. 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 matrer of reiterating the 
regularions. Fedin (Bras. Co. Ltd. v. Suva, 724 F. Supp. at 1103. The petitioner provided that the beneficiary 
will spend 20 percent of her time as the general managerlvice president performing non-qualifying sales 
functions such as "[visiting] customers and maintainling] good relationship with them . . . ." Thus. the 
petitioner has faile? to show that as much as 60 percent of the beneficiary's time acting as the general 
managerlvice president constitutes employment in a primarily managerial or executive capacity. 
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While the benefic/ary performs some tasks that can be considered managerial or executive duties. the 
provided job drscri&ions reflect that the majority of her time is devoted to non-qualifying tasks. 
The petitioner prodides that that beneficiary will have supervisory authority over subordinate employees. 
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including an operation department manager, a financial department manager, all administrative department 
manager. a ~ales~i~~ort representative, and a freight clerk. Although the beneficiary is got required to 
supervise personnel, if it is claimed that her duties involve supervising employees, the petitioner mlrst 
establish that the wbordinate employees are supervisory, professional, or managerial. See fj 101(a)(44)(A)(ii) 
of th: .4ct. 
In evaluating whether the beneficiary manages profess~onal employees, the AAO must evaluate whether the 
subordinate positions require a baccalaureate degree as a minimum for entry into the field of endeavor. 
Section I0 l (a)(32) bf the Act, 8 U.S.C. 4 1 I Ol(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 a: least biccalaureate level, which is a realistic prerequisite to entry into the particular field of 
WAC-04-043-53490 
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endeavor. Matterof Sea, 19 I&N Dec. 817 (Comm. 1988); Matter of Ling, 13 I&N Dec. 35 (R.C. 1968); 
Matter ofshin, 1 1 I&N Dec. 686 (D.D. 1966). 
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Therefore, the AAO must focus on the level of education required by the position, rather than the degree held 
11 by a subordinate employee. The possession of a bachelor's degree by a subordinate employee does not I' automatically leadllto the conclusion that an employee is employed in a professional capacity as that term is 
defined above. In ,the instant case, while the petitioner has indicated that all of the beneficiary's subordinates 
have at least a bachelor's degree, it has identified the subject studied for only a single employee, namely the 1 
financial department manager. As the petitioner has not indicated what degrees its other employees have 
earned. it has not 'shown that such academic training is necessary to successfully perform their respective 
./I . duties. The petitloner indicates that the financial department manager earned a master's degree in 
I/ management and accounting. A degree in accounting is understandably helpful to perform the duties of the 
financial departmeht manager. Thus, the petitioner has provided sufficient explanation to establish that the 
financial department manager is a professional. I 
The petitioner has/l not shown that the operation department manager, administrative department manager, 
saleslimport representative, or freight clerk spend significant amounts of time supervising subordinate staff 
members or managing a clearly defined department or function of the petitioner, such that they could be 
classified as manabers or supervisors. Though the petitioner gives most of its employees managerial titles, 
such titles, by themselves, do not establish that they are in fact managers. Again, the actual duties themselves 
reveal the true nature of the employment. Fedin Bros. Co., Ltd. v. Suva, 724 F. Supp. at 1 108. 
While the petitionler has shown that the beneficiary oversees one subordinate who is a professional, the I1 petitioner has indicated that the beneficiary spends a minimal amount of time actually performing supervisory 
duties. In the breakdown of the time the beneficiary devotes to her duties, the petitioner only references the 
beneficiary's interaction with the financial department manager in the section tnat provides that she devotes 
20 percent of her' time as vice presidendgeneral manager in part to "supervis[ing] other managers and 
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professionals with their business activities." As the beneficiary only spends 65 percent of her time acting as 
I1 the vice presidentlgeneral manager, it is evident that a small fraction of her work is devoted to supervisory 
functions. The definitions of executive and managerial capacity have two parts. First, the petitioner must 
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show that the beneficiary performs the high level responsibilities that are specified in the definitions. Second, 
the petitioner must prove that the beneficiary primarily performs these specified responsibilities and does not 
spend a majority of his or her time on day-to-day functions. Chantpion World, fnc. v. INS, 940 F.2d 1533 
(Table), 1991 WL 144370 (9th Cir. July 30, 1991). While the petitioner has established that the beneficiary 
engages in the managerial task of supervising a professional, it has not shown that the beneficiary is primarily 
engaged with managerial or executive tasks. Counsel's assertion rhat, "[als a general manager, the 
beneficiary spends most of her time supervising and directing the work of other managerial employees, 
setting long-term drategy and identifying business opportunities in the U.S. market, and other managerial 
duties" is not suppdrted by the evidence of record. 
In his decision, the pirector cited the Board of Immigration Appeals decision in Matter of Church Scientologv 
Internutionul, 19 I'&N Dec. 593 (Comm. 1988), to stand for the proposition that "[aln employee who 
I primarily performs1,the tasks necessary to produce a product or provide services is not considered to be 
WAC-04-043-53490 
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employed in a managerial or executive capacity." Counsel asserts that the present case is distinguishable 
from Matter of ~h@h Scientology International, as the beneficiary managed a much larger staff abroad and 
the petitioner proviaed a more detailed description of the beneficiary's duties in the United States. However, 
the beneficiary's dhties abroad at not at issue in this proceeding. As discussed above, the job descriptions 1, provided for the beneficiary fail to show that she will be employed in a primarily managerial or executive 
capacity. I 
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/I Counsel alleges that the language used in the director's decision shows that he failed to fully consider 
evidence submittedl, in response to the request for evidence. Yet, the decision makes specific reference to the I documents most pertinent in evaluating the beneficiary's true employment capacity. including the 
beneficiary's job d~scriptions and the petitioner's quarterly wage report for the third quarter of 2003. The 
director made specific mention of elements of the beneficiary's job description submitted in response to the Y request for evidence, at times quoting language verbatim. Thus, counsel's assertion that the director 
disregarded the petitioner's evidence is without merit. 
Counsel further cites the decision of the U.S. Court of Appeals for the Ninth Circuit in Boyang v. INS, 67 F.3d 
305 (9'h Cir. 1995); in which the court upheld CIS'S determination that the beneficiary who supervised one 
clerical employee was not employed in a primarily managerial or executive capacity. Counsel states that the 
present case is distinguishable, in that the beneficiary "oversees three managerial employees with a total staf'f 
of five (S)." However, as discussed above, the evidence of record shows that the beneficiary will invest an 
insignificant amoudt of time managing subordinate employees. While the petitioner has established that the 
beneficiary will have supervisory authority over a single professional, the evidence of record does not support I 
that she will be employed in a primarily managerial or executive capacity. 
Counsel suggests that the director erroneously based his decision on the small staff size of the petitioner. 
I' However, the direcfor's decision reflects that he focused on the descriptions of the beneficiary's duties as 
submitted by the pftitioner. According to the beneficiary's job descriptions, a small portion of her time 
involves interacting with other employees. The majority of her time is invested in non-qualifying tasks or 
duties that are too "ague to be deemed managerial or executive functions. Thus, regardless of the petitioner's I' staff size, the petitioner has failed to show that the beneficiary will be primarily employed in a managerial or 
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executive capacity. I The director's decision does not reflect that he inappropriately used the petitioner's small 
staff size as a negative factcr. 
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Counsel cites the decision of the U.S. District Court for the Northern District of Georgia in Mar3 Jewelers. 
Inc. v. INS, 702 F.Supp. 1570 (N.D. Ga. 1988) to stand for the proposition that a beneficiary can perf~rm 
home n~n-~ualif~id~ tasks and still be deemed to be employed in a primarily managerial or executive 
capacity. The statitory definitions of managerial and executive capacity reflect that a petitioner bears the 
burden to show thst the beneficiary is primarily engaged in managerial or executive tasks. Sections 
101(a)(44)(A) and (13) of the Act. Thus, counsel correctly suggests that it is permissible for a beneficiary to 
perform some non-&alifying tasks, so long as the majority of the beneficiary's time is devoted to managerial 
or executive duties.! However, as discussed above, in the present matter the evidence of record reflects that 
the beneficiary will be primarily engaged with non-qualifying duties. 
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It is further noted that Mars Jewelers, Inc. v. INS relates to an immigrant visa petition, and not the extension 
of an L-IA nonimhigrant visa. The case is distinguishable from the present matter based on the applicable 
regulations. Additionally, in contrast to the broad precedential authority of the case law of a United States 
circuit court, the AAO is not bound to follow the published decision of a United States district court. See 
I Mutter of K-S-, 20 )I&N Dec. 71 5 (BIA 1993). Although the reasoning underlying a district judge's decision 
will be given due cbnsideration when it is properly before the AAO, the analysis does npt have to be followed 
as a matter of law. 11d. at 719. 
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Based on the foregbing, the petitioner has not established that the beneficiary will be employed in a primarily 
11 managerial or executive capacity, as required by 8 C.F.R. 5 214.2(1)(3)(ii). For this reason, the appeal will be 
dismissed. II 
In visa petition pro'ceedings, the burden of proving eligibility for the benefit sought remains entirely with the 
petitioner. ~ection~291 of the Act, 8 U.S.C. 5 1361. The petitioner has not met this burden. 
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ORDER: 'The appeal is dismissed.