dismissed L-1A Case: International Trade

(L e 
U.S. Department of Homeland Security 
identifying data deleted to 
prevent clearly unwwanted 
invasion of personal privacy 
mLK1 COPY 
U.S. Citizenship and Immigration Services 
OfJice of Administrative Appeals, MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
FILE: EAC 09 006 5 1 1 12 
 Office: VERMONT SERVICE CENTER Date: NOV 0 3 2009 
PETITION: 
 Petitioner for a Nonimmigrant Worker Pursuant to Section 101 (a)(15)(L) of the Immigration 
and Nationality Act, 8 U.S.C. !$ 1 10 l(a)(15)(L) 
ON BEHALF OF PETITIONER: 
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. 
If you believe the law was inappropriately applied or you have additional information that you wish to have 
considered, you may file a motion to reconsider or a motion to reopen. Please refer to 8 C.F.R. 8 103.5 for the 
specific requirements. 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 $585. Any motion must be filed within 30 days of the decision that 
the motion seeks to reconsider, as required by 8 C.F.R. !$ 103.5(a)(l)(i). 
P ny Rhew 
W ief, Administrative Appeals Office 
EAC 09 006 51112 
Page 2 
DISCUSSION: The Director, Vermont Service Center, denied the nonimmigrant visa petition. The matter is 
now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. 
The petitioner filed this nonimmigrant petition seeking to extend the employment of its operations manager as 
an L- 1A nonimmigrant intracompany transferee pursuant to section 10 1 (a)(15)(L) of the Immigration and 
Nationality Act (the Act), 8 U.S.C. 9 1101(a)(15)(L). The petitioner, a New York corporation, states that it is 
an international transportation and trading company. The petitioner claims to be a subsidiary of Sable 
International GmbH, located in Germany. The beneficiary was initially granted L-1A classification for a one- 
year period in order to open a new office in the United States, and the petitioner now seeks to extend his 
status for three additional years. 
The director denied the petition, concluding that the petitioner failed to establish that the beneficiary would be 
employed in a primarily managerial or executive capacity under the extended petition. 
The petitioner subsequently filed an appeal. The director declined to treat the appeal as a motion and 
forwarded the appeal to the AAO. On appeal, counsel for the petitioner asserts that the director misread and 
misinterpreted the evidence submitted, and erroneously concluded that the beneficiary will not be employed 
in a qualifying managerial or executive capacity. Counsel submits a brief and additional evidence in support 
of the appeal. 
To establish eligibility for the L-1 nonimmigrant visa classification, the petitioner must meet the criteria 
outlined in section 101(a)(15)(L) of the Act. Specifically, a qualifying organization must have employed the 
beneficiary in a qualifying managerial or executive capacity, or in a specialized knowledge capacity, for one 
continuous year within the three years preceding the beneficiary's application for admission into the United 
States. In addition, the beneficiary must seek to enter the U.S. temporarily to continue rendering his or her 
services to the same employer or a subsidiary or affiliate in a managerial, executive or specialized knowledge 
capacity. 
The regulation at 8 C.F.R. 5 214.2(1)(3) states that an individual petition filed on Form 1-129 shall be 
accompanied by: 
(i) 
 Evidence that the petitioner and the organization which employed or will employ the 
alien are qualifying organizations as defined in paragraph (l)(l)(ii)(G) of this section. 
(ii) 
 Evidence that the alien will be employed in an executive, managerial, or specialized 
knowledge capacity, including a detailed description of the services to be performed. 
(iii) 
 Evidence that the alien has at least one continuous year of full-time employment 
abroad with a qualifying organization within the three years preceding the filing of 
the petition. 
(iv) 
 Evidence that the alien's prior year of employment abroad was in a position that was 
managerial, executive or involved specialized knowledge and that the alien's prior 
EAC 09 006 51112 
Page 3 
education, training and employment qualifies himfher 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 regulation at 8 C.F.R. 5 214.2(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 (l)(:l)(ii)(G) of this section; 
(B) 
 Evidence that the United States entity has been doing business as defined in 
paragraph (l)(l)(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 sole issue addressed by the director is whether the petitioner established that the beneficiary will be 
employed in a primarily managerial or executive capacity under the extended petition. 
Section 101(a)(44)(A) of the Act, 8 U.S.C. €j 1 10 l(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 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 

EAC0900651112 
Page 5 
LFCI, MDL and and further desires to engage the services of as officer and 
consultant, respectively." 
Under the terms of the agreement, 
 and 
 agree to be employed by the petitioner; 
however, they also agree to continue doing business and operating their respective customs broker and freight 
forwarding businesses while the petitioner awaits approval of its own licenses. The agreement is valid 
through December 3 1, 2009, during which time the parties agreed that LFCI and MDL will provide freight 
forwarding, logistical and related services to the customers of the petitioner and the foreign entity. The 
agreement further states: 
[The petitioner] and [the foreign entity], as appropriate, shall receive a commission that is 
equal to fifty percent (50%) of any and all fee amounts that are collected by LFCI and/or 
MDL from said customers for said services, but not including any expenses incurred by LFCI 
and/or MDL and collected from said customers in connection with said services, and not 
including any fees or expenses from the following customers: EMAG LLC and Trumpf Inc. 
Said commissions shall be paid on a monthly basis unless the parties mutually agree 
otherwise. 
The parties also agreed "that shall provide customs broker and related services to customers of [the 
petitioner] andlor [the foreign entity] as requested by [the petitioner] and/or [the foreign entity]," in exchange 
for a referral fee equal to 50 percent of fees collected by -1 
The petitioner further agreed that, notwithstanding approval of its freight forwarding and license applications, 
"neither [the petitioner] nor [the foreign entity] shall commence any business or operation under either said 
license until January 1, 2010," provided that the agreement is still in place. The agreement provides that the 
petitioner would have the right to provide services to MDL, and LFCI customers and hire employees 
of LFCI, MDL and on January 1,201 0. 
The petitioner submitted an organizational chart which depicts the beneficiary as "branch manager" of the 
U.S. company, responsible for supervising an import manager, an export manager (who holds the concurrent 
title, "President, 'MDL"'), a clerk and an accounting employee. The chart also shows that the beneficiary 
monitors the directors of "~~bel," and, reports to the three managing directors 
of the foreign entity, and supervises 12 subordinates within the German company. 
The director issued a request for additional evidence (RFE) on October 20, 2008, in which he requested that 
the petitioner submit, inter alia, the following: (1) evidence that establishes the duties performed by the 
beneficiary in the previous year and the duties he will perform if the petition is extended; (2) evidence 
documenting the number of contractors utilized by the U.S. company and the duties performed, if applicable; 
(3) the number of subordinate supervisors the beneficiary manages, including their job titles and job duties; 
(4) the amount of time the beneficiary spends on executive/managerial duties versus non-managerial 
functions; and (5) complete copies of the petitioner's IRS Forms 941, Employer's Quarterly Federal Tax 
Return, for the last three quarters of 2008. 
EAC 09 006 51112 
Page 6 
In response to the RFE, counsel for the petitioner, in a letter dated November 21, 2008, stated that the 
beneficiary will supervise seven subordinate supervisors, including four staff based in Germany: an airfreight 
manager, an ocean freight manager, an import manager, and an accountant. The petitioner stated that the 
beneficiary will supervise the following U.S.-based staff: 
f Supervising the import department, 
arranging clearance for incoming shipments in accordance with U.S. Customs and Border 
Protection's rules and regulations. 
delivery of ocean- and airfreight shipments leaving the U.S., documentation and export 
according to the rules and regulations of U.S. Customs and Border Protection, dealing with 
our agents overseas for clearance and delivery. 
Supervising the sales department, domestic and 
international sales, consulting worldwide. 
Counsel described the beneficiary's proposed duties under the extended petition as follows: 
The beneficiary is supervising all of the above-mentioned staff, coordinating their work from 
and to overseas and domestic. He is responsible for customers that have shipments from and 
to the U.S. He must be able to supervise his staff to ensure a smooth workflow throughout the 
whole shipping process. He has to be trained for all needs concerning freight forwarding such 
as: oceanfreight import and export, airfreight import and export, Customs regulations 
worldwide, documentation, negotiating rates and tariffs with ocean- and airfreight carriers, 
maintain and improve customer relations as well as worldwide agents relations. 
Counsel stated that the beneficiary devotes 90 percent of his time to managerial and executive functions and 
"will have complete authority over the whole operational process and staff." 
The petitioner did not submit copies of its IRS Forms 941, Employer's Quarterly Federal Tax Return, noting 
that "New York State Insurance Fund was having difficulty in setting up worker's compensation and 
unemployment insurance schedules because of the foreign officers." The petitioner annotated its monthly 
profit and loss reports to reflect wages paid to the beneficiary. There is no indication that the petitioner has 
paid other employees. 
The director denied the petition on December 10, 2008, concluding that the petitioner failed to establish that 
the beneficiary will be employed in a primarily managerial or executive capacity under the extended petition. 
In denying the petition, the director observed that the petitioner's descriptions of the beneficiary's position are 
vague and do not specify what duties he performs on a day-to-day basis. The director acknowledged the 
petitioner's claim that the beneficiary directly supervises seven subordinates, but observed that four 
employees are located in Germany, and therefore not directly under the beneficiary's management, while the 
petitioner failed to provide evidence of payments made to the three U.S.-based subordinates. The director 
EAC 09 006 51 112 
Page 7 
concluded that the petitioner did not demonstrate that the beneficiary will supervise a subordinate staff who 
will relieve him from performing non-qualifling duties associated with operating the petitioner's business. 
On appeal, counsel for the petitioner asserts that the petitioner's previously submitted evidence has been 
"misread, and misinterpreted." Counsel asserts that the petitioner has established itself as a viable entity over 
the previous year under the beneficiary's direction and management. Counsel asserts that "the beneficiary is 
the key officer in the U.S. operation who has spearheaded the commencement of the U.S. business and now is 
directing its development. He is directing the merger and purchase of the now U.S. affiliate, as its CEO." 
The petitioner further states that the beneficiary "directs the U.S. employees as stated and those whose duties 
interface with the U.S. operation, who remain in Germany." Counsel states that the beneficiary's supervision 
of the German employees is required "due to the nature of the business." In addition, counsel asserts that the 
petitioner is fully operable and expects to acquire "licenses for IATA and FMC" in 2009, while continuing to 
use partners to provide certain services. 
In support of the appeal, the petitioner submits a copy of its Form 941, Employer's Quarterly Federal Tax 
Return, for the fourth quarter of 2008, and a copy of the beneficiary's Form W-2, Wage and Tax Statement, as 
well as documentation establishing that the petitioner was doing business as a freight forwarder during the 
fourth quarter of 2008. 
Upon review, and for the reasons discussed herein, the petitioner has not established that the beneficiary will 
be employed in a primarily managerial or executive capacity under the extended petition. 
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). 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 definitions 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 definitions. Second, the petitioner 
must show that the beneficiary primarily performs these specified responsibilities and does not spend a 
majority of his or 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). Here, while the beneficiary would evidently exercise discretion 
over the business as its operations manager and apparently its only employee, the petitioner has not 
established that his actual duties will be primarily managerial or executive in nature. 
As noted by the director, the beneficiary's job description is too general to convey any understanding of what 
he will do on a day-to-day basis. The regulation at 8 C.F.R. 5 214.2(1)(14)(ii)(C) requires the petitioner to 
submit a statement of the duties performed by the beneficiary for the previous year and the duties the 
beneficiary will perform under the extended petition. Given this evidentiary requirement, counsel's initial 
statement that the beneficiary "will head up the U.S. operation and be responsible for the activities of the 
parent company in Germany vis-a-vis the United States," was plainly insufficient to meet the petitioner's 
burden. Specifics are clearly an important indication of whether a beneficiary's duties are primarily executive 
EAC 09 006 51112 
Page 8 
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), am, 905 F.2d 41 (2d. Cir. 
1990). 
Accordingly, the director advised the petitioner of this deficiency and provided the petitioner an opportunity 
to provide the detailed position description required by regulation. In response, the petitioner stated that the 
beneficiary is supervising seven subordinate employees, and "is responsible for customers that have 
shipments from and to the U.S." The petitioner stated that the beneficiary allocates approximately 90 percent 
of his time to managerial or executive functions, but did not provide the requested evidence of the 
beneficiary's duties performed during the previous year and proposed duties under the extended petition. 
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). 
The petitioner's statement that the beneficiary will devote 90 percent of his time to managerial duties is of 
limited probative value as it is not accompanied by a description of his specific duties. 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 his daily routine. The actual duties 
themselves will reveal the true nature of the employment. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. at 1108. 
Despite the director's finding that the petitioner failed to provide an adequate description of the beneficiary's 
duties, the petitioner has not sought to clarify the nature of the beneficiary's day-to-day duties on appeal. 
Counsel indicates that the beneficiary is "the key officer in the U.S. operation," responsible for "directing its 
development." However, a beneficiary's "control," management or direction over a company cannot be 
assumed or considered "inherent" to his position merely on the basis of broadly-cast job responsibilities. 
Overall, the position descriptions provided fall significantly short of articulating the beneficiary's day-to-day 
responsibilities, such that they could be classified as primarily managerial or executive in nature. The 
petitioner cannot rely on vague characterizations and conclusory assertions to establish the beneficiary's 
employment in a managerial or executive capacity. 
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 those of his or her subordinate employees, the 
nature of the petitioner's business, the employment and remuneration of employees, and any other factors 
contributing to a complete understanding of a beneficiary's actual role in a business. As observed by the 
director, the record does not demonstrate that the petitioner has direct or contracted employees who could 
perform the non-managerial duties associated with operating the petitioner's business on a day-to-day basis. 
The regulation at 8 C.F.R. fj 214.2(1)(14)(ii)(D) requires the petitioner to submit 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. At the time of filing, the petitioner claimed that the U.S. company has 
six (6) employees. The petitioner submitted an organizational chart indicating that the beneficiary supervises 
four U.S. employees: an import manager , an export manager , a clerk 
EAC 09 006 51112 
Page 9 
In response to the RFE, in which the petitioner was instructed to provide additional explanation regarding the 
staffing of the U.S. company and evidence of wages paid to employees, the petitioner 
manages its import department, 
 manages its export department, and 
titles fo 
holds the osition of sales manager. The petitioner did not provide any explanation for the changes in position 
handit 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). 
Regardless, as noted by the director, the record is devoid of documentary evidence that the petitioner 
currently employs anyone besides the beneficiary. Pursuant to the January 2008 agreement the petitioner 
would not take place before January 2010. Assuming that the agreement remains in place, 
Ire continuing to operate their respective customs broker and logistics businesses, 
customers, and are obligated to pay the petitioner commissions and/or referral fees for services provided to 
the petitioner's customers. The agreement gives the petitioner the right to review the records of LFCI and 
MDL, but does not appear to give the beneficiary supervisory authority over or the 
employees of their respective companies. Based on the evidence of record, the petitioner's employment of the 
staff of LFCI and MDL is prospective and conditional upon all parties choosing to adhere to the terms of the 
agreement. A visa petition may not be approved based on speculation of future eligibility or after the 
petitioner or beneficiary becomes eligible under a new set of facts. See Matter of Michelin Tire Corp., 17 
I&N Dec. 248 (Reg. Comm. 1978); Matter of Katigbak, 14 I&N Dec. 45,49 (Comm. 1971). 
The AAO acknowledges the petitioner's claim that the beneficiary also oversees four managers who work for 
the petitioner's German parent company. However, as discussed above, the petitioner has not adequately 
explained the nature of the beneficiary's actual duties in the United States, nor explained the extent and scope 
of his interaction with the foreign office and its staff in carrying out his duties as operations manager of the 
U.S. entity. Absent some description of how the beneficiary exerts authority over the foreign-based 
employees, how such employees are integrated into the daily operations of the U.S. entity, and how the 
foreign employees relieve the beneficiary from performing non-managerial duties associated with the 
petitioner's business, the AAO is not persuaded that the beneficiary acts as a bona fide manager vis-a-vis the 
German-based staff, or that the foreign employees would obviate the need for the beneficiary to perform a 
number of non-managerial tasks as the sole employee of the petitioning organization in the United States. 
Going on record without supporting documentary evidence is not sufficient for purposes of meeting the 
burden of proof in these proceedings. Matter of Sofici, 22 I&N Dec. 158, 165 (Comm. 1998) (citing Matter 
of Treasure Craft of California, 14 I&N Dec. 1 90 (Reg. Comm. 1 972)). 
Pursuant to section 101(a)(44)(C) of the Act, 8 U.S.C. 5 1 10l(a)(44)(C), if staffing levels are used as a factor 
in determining whether an individual is acting in a managerial or executive capacity, USCIS must take into 
account the reasonable needs of the organization, in light of the overall purpose and stage of development of 
EAC 09 006 51 112 
Page 10 
the organization. In the present matter, however, the regulations provide strict evidentiary requirements for 
the extension of a "new office" petition and require USCIS to examine the organizational structure and 
staffing levels of the petitioner. 
 See 8 C.F.R. 5 214.2(1)(14)(ii)(D). 
 The regulation at 8 C.F.R. 5 
214.2(1)(3)(v)(C) allows the "new office" operation one year within the date of approval of the petition to 
support an executive or managerial position. There is no provision in USCIS regulations that allows for an 
extension of this one-year period. If the business does not have sufficient staffing after one year to relieve the 
beneficiary from primarily performing operational and administrative tasks, the petitioner is ineligible by 
regulation for an extension. 
Furthermore, in reviewing the relevance of the number of employees a petitioner has, federal courts have 
generally agreed that USCIS "may properly consider an organization's small size as one factor in assessing 
whether its operations are substantial enough to support a manager." Family Inc. v. US. Citizenship and 
Immigration Services 469 F. 3d 13 13, 13 16 (9th Cir. 2006) (citing with approval Republic of Transkei v. INS, 
923 F 2d. 175, 178 (D.C. Cir. 1991); Fedin Bros. Co. v. Sava, 905 F.2d 41, 42 (2d Cir. 1990)(per curiam); Q 
Data Consulting, Inc. v. INS, 293 F. Supp. 2d 25, 29 (D.D.C. 2003)). Furthermore, it is appropriate for 
USCIS to consider the size of the petitioning company in conjunction with other relevant factors, such as a 
company's small personnel size, the absence of employees who would perform the non-managerial or non- 
executive operations of the company, or a "shell company" that does not conduct business in a regular and 
continuous manner. See, e.g. Systronics Corp. v. INS, I53 F. Supp. 2d 7, 15 (D.D.C. 200 1). 
Here, counsel concedes on appeal that the petitioner "got behind the timeframe it originally forecast," in terms 
of obtaining required licenses. There is no indication in this matter that the director did not consider the 
reasonable needs of the organization in making his determination that the beneficiary would not be employed 
in a primarily managerial or executive capacity. On the contrary, it appears the reasonable needs were 
considered, and the director concluded that the petitioner was incapable based on its overall purpose and stage 
of development to support a primarily managerial or executive position as defined by sections 101(a)(44)(A) 
and (B) of the Act. Contrary to the petitioner's assertions, the record does not establish how the beneficiary, as 
the sole documented U.S. employee, was relieved from primarily performing non-managerial duties 
associated with the day-to-day operational and administrative functions of the petitioner's business. 
Collectively, the lack of any documented subordinate staff brings into question how much of the beneficiary's 
time can actually be devoted to the claimed managerial or executive duties. As stated in the statute, the 
beneficiary must be primarily performing duties that are managerial or executive. See sections 101(a)(44)(A) 
and (B) of the Act. 
The petitioner has not submitted evidence on appeal to overcome the director's determination that the 
beneficiary will not be employed in a managerial or executive capacity under the extended petition. 
Accordingly, the appeal will be dismissed. 
In visa petition proceedings, the burden of proving eligibility for the benefit sought remains entirely with the 
petitioner. Section 291 of the Act, 8 U.S.C. 5 1361. Here, that burden has not been met. 
ORDER: The appeal is dismissed.