dismissed L-1A Case: International Trade

identifying data deleted to 
prevent clearly unwarrd 
invasion of perad privacy 
U.S. Department of Homeland Security 
20 Massachusetts Ave. N.W. Rm. A3000 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
Services 
PUBLIC COPY 
4 1 
FILE: WAC 05 0 1 1 504 17 Office: CALIFORNIA SERVICE CENTER Date: AUG 0 4 2006 
PETITION: Petition for a Nonirnrnigrant 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. 
Robert P. Wiemann, Chief 
Administrative Appeals Office 
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DISCUSSION: The Director, California Service Center, denied the petition for a nonimmigrant visa. The 
matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. 
The petitioner filed this nonimmigrant petition seeking to extend the employment of its president 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. $ 1101(a)(15)(L). The petitioner, a California corporation, claims to be the subsidiary 
of Modem Automatic Control System Co., Ltd. of Beijing, China. The petitioner claims to be engaged in 
international trade; namely, exporting industrial measurement and control equipment from the United States 
to China. The beneficiary was initially granted a one-year period of stay to open a new office in the United 
States, and the petitioner now seeks to extend the beneficiary's stay. 
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 filed an appeal in response to the denial. On appeal, counsel for the petitioner alleges that the 
director's decision was erroneous, and that contrary to the director's findings, the beneficiary was in fact 
employed in a primarily managerial or executive capacity. Counsel specifically alleges that the director did 
not consider all of the evidence submitted in support of the petition, and relied on minor discrepancies and 
factually incorrect statements in reaching its decision. 
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 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)(14)(ii) 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 
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capacity; and 
(e) Evidence of the financial status of the United States operation. 
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. 5 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. 
In a letter from the petitioner dated September 7, 2004, the beneficiary's duties were described as follows: 
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The beneficiary has been working as President with the petitioner in L-1A status since 
February 2003. The petitioner intends to retain the beneficiary's service in the same position 
to perform the following duties: 
1. She determines company's policies and establishes business goals. With the business 
nature in mind, she considers company's marketing capability, financial capability 
and human resource. She considers competitors' advantages and disadvantages of 
marketing and financial capabilities and human resource. She considers the social 
and economic environment here in the United States. Based upon all these, she 
determines and formulates company's policies: product policy, pricing policy, 
distribution policy, promotion policy, financial policy and human resource policy. 
2. She reviews marketing and financial reports to ensure that the company's objectives 
are achieved. She analyzes operation to evaluate company's performance and to 
determine areas of cost reduction and program improvement. She directs financial 
and budget activities to fund operations and increase efficiency. She demands the 
subordinates to submit their reports. 
3. She makes decisions to adjust company's business orientation and operation. She 
decides to adjust product policy, pricing policy, distribution policy, promotion policy, 
financial policy and human resource policy. 
4. She reports to the parent company in China. She reports about the performance of 
the U.S. subsidiary and business opportunities here in the United States. She also 
receives information and instructions from the parent company in China. 
Additionally, the petitioner provided an organizational chart for the U.S. entity, which demonstrated that the 
beneficiary oversaw the following employees: 
Office Assistant 
Branch Manager 
Director of Technology Development 
Marketing and Sales Manager 
Business Development Manager 
According to quarterly tax returns and payroll records for the quarter ending September 30,2004, the Director 
of Technology Development, was not paid any wages during this time period despite the 
petitioner's claim that his employment commenced on August 1, 2004. All other named employees were 
verified as active. 
On October 21, 2004, the director requested additional evidence pertaining to the nature of the beneficiary's 
position in the U.S. business. The request specifically asked the petitioner to submit a more detailed 
description of the beneficiary's duties and those of her co-workers, as well as a list of all subordinates of the 
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beneficiary, with a description of each person's position title, their duties, and their educational backgrounds. 
In addition, the director requested more information with regard to the beneficiary's claimed executive duties, 
with specific details about the discretionary decisions that she had exercised over the past six months. 
In a response dated November 1, 2004, the petitioner, through its former counsel, responded to the director's 
request. Counsel stated that the petitioner currently employed four persons, including the beneficiary, at the 
San Diego office, and that it had since opened a second branch office in Houston, Texas, where an additional 
two persons were employed. Specifically, counsel stated that with regard to the beneficiary's work location, 
the following employees, in addition to the beneficiary, were present: 
Office Assistant 
Branch Manager 
Director of Technology Development 
The Houston office employed the following persons: 
Marketing and Sales Manager 
Business Development Manager 
Counsel provided a statement claiming that all of these subordinate employees possessed advanced degrees. 
With regard to the beneficiary's executive duties, counsel stated as follows: 
[Tlhe beneficiary has performed the following duties since her arrival in the United States to 
work in L-1A status: 
She establishes the petitioner's long term policies and business goals by designing 
and implementing the petitioner's financial, administrative, personnel and marketing 
policies; 
She set up business departments and regulate[s] and delegate[s] administrative 
responsibilities to employees working in those departments; [slhe establishes and 
implements personnel policies in hiring and firing employees; [slhe also set up 
positions of technical consultants responsible for technical advises [sic] [;] 
She established the long-term business partnership with renowned manufacturers in 
the United States; 
She supervised technical managers of the company in selecting products and 
technologies for export to China; [she] is in charge of negotiations with suppliers 
regarding terms and conditions of purchasing such products and technologies[.] 
The petitioner continued by explaining the basis for the petitioner's decision to continue in the export 
business, and provided the following description of specific day-to-day duties the beneficiary had 
performed in the past six months: 
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1. Conduct meetings with employees implementing the business tasks and goals; 
2. Make decisions regarding hiring additional employees and set up compensation 
policies; 
3. Meet with major customers and supervise negotiations with them; review and 
approve agreements and contracts; 
4. Contact the parent company regarding the development of the business of the 
petitioner and make decisions on such matters as relating to future investment and 
personnel decisions 
5. Have meetings with banks, accountants, lawyers to make decisions on financial and 
legal matters. 
In short, the beneficiary's job duties will cover major decision makings [sic] process 
involving the term development of the petitioner; [slhe will not perform non-managerial 
duties, which are delegated to other employees worlung for the petitioner. It is self 
explanatory that the higher level executives, the board of directors, or stockholders of the 
organization require only general supervision of the beneficiary, considering the fact that the 
beneficiary is also the general manager of the parent company, as evidenced by the letter of 
employment submitted in the petition of the L-1 extension. 
Finally, counsel asserted that due to difficulty obtaining her initial visa, the beneficiary only spent one month 
in the United States during her first period of L-1 status in 2003. As a result of the SARS epidemic in China, 
she was not permitted to return to the United States after departing during the validity period. Consequently, 
she was granted an additional one-year period in L-1 status from November 2003 to November 2004, and she 
arrived in the United States in January 2004. Counsel states that due to these unforeseen problems and delays 
in returning to the Untied States, the petitioner was unable to hire any employees prior to 2004. 
On December 3,2004, the director denied the petition. Specifically, the director concluded that in addition to 
failing to specify under which capacity, namely, managerial or executive, the beneficiary was seeking 
classification, the petitioner had failed to establish that the beneficiary satisfied the regulatory requirements of 
either one of these capacities. For instance, the director found that the beneficiary did not have a subordinate 
staff of professional, managerial, or supervisory employees to relieve her from performing non-qualifying 
duties. 
On appeal, newly-retained counsel for the petitioner asserts that the beneficiary is in fact functioning in a 
primarily executive capacity by virtue of her position and level of responsibility. Counsel contends that the 
beneficiary's core job functions by definition constitute executive capacity, and that the director erroneously 
concluded that the beneficiary was performing non-qualifying tasks. Furthermore, counsel contends that the 
failure of Citizenship and Immigration Services (CIS) to approve the visa in this matter has caused the 
petitioner to violate a corporate statute of the state of California, which requires that a corporation maintain a 
president or chief executive officer throughout its existence. 
When examining the executive or managerial capacity of the beneficiary, the AAO will look first to the 
petitioner's description of the job duties. See 8 C.F.R. 214.2(1)(3)(ii). The petitioner's description of the job 
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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. In this matter, the petitioner does not clarify whether the 
beneficiary is claiming to be primarily engaged in managerial duties under section 101(a)(44)(A) of the Act, 
or primarily executive duties under section 101(a)(44)(B) of the Act. A beneficiary may not claim to be 
employed as a hybrid "executive/manager" and rely on partial sections of the two statutory definitions. If the 
petitioner chooses to represent the beneficiary as both an executive and a manager, it must establish that the 
beneficiary meets each of the four criteria set forth in the statutory definition for executive and the statutory 
definition for manager. Although counsel for the petitioner alleges, for the first time on appeal, that the 
beneficiary is employed in a primarily executive capacity, this election was not made prior to adjudication of 
the petition. Thus, the AAO must examine the beneficiary's qualifications under the criteria of both 
managerial and executive capacity for purposes of this appeal. 
The initial description of duties provided by the petitioner in these proceedings did little to describe the 
beneficiary's actual duties, nor did it describe the nature of the beneficiary's day-to-day tasks. Instead, it 
merely provided a generic description of the nature of her duties, and paraphrased the regulatory definitions. 
As previously stated, the initial evidence submitted was insufficient to warrant approval, and consequently, 
the director requested more specific information, including a more specific overview of the petitioner's 
organizational hierarchy and the beneficiary's position therein. 
The AAO, upon review of the record of proceeding, concurs with the director's finding that the petitioner has 
not established that the beneficiary will be employed in either a primarily managerial or executive capacity. 
First, the petitioner failed to specifically articulate the nature of the beneficiary's duties. For example, in 
response to the director's request for evidence regarding the executive capacity of the beneficiary, the 
petitioner submitted a response which started with the phrase "[als such, the beneficiary has been working as 
a manager for L-1A purposes." As stated above, a petitioner must clearly describe the duties to be performed 
by the beneficiary and indicate whether such duties are either in an executive or managerial capacity. The 
petitioner must demonstrate that the beneficiary's responsibilities will meet the requirements of one or the 
other capacity. 
The updated description of duties, accompanied by the overly broad descriptions provided in the initial letter 
of support, fail to answer a critical question in this case: What does the beneficiary primarily do on a daily 
basis? The actual duties themselves will reveal the true nature of the employment. Fedin Bros. Co., Ltd. v. 
Sava, 724 F. Supp. 1103, 1108 (E.D.N.Y. 1989), affd, 905 F.2d 41 (2d. Cir. 1990). 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. 1103, aff'd, 905 F.2d 41. Although the petitioner provided a broad statement of the 
beneficiary's duties in the initial petition and again in response to the request for evidence, this description did 
not articulate what a specific day in the role of the beneficiary would consist of. Instead, the descriptions 
merely provided a brief synopsis of the beneficiary's managerial/executive duties, and failed to discuss or 
identify job-specific tasks or obligations the beneficiary is required to perform. Essentially, the petitioner 
equates managerial and executive capacity with the beneficiary's title of president, yet fails to provide solid 
examples of how this managerial or executive capacity is actually attained. Conclusory assertions regarding 
the beneficiary's employment capacity are not sufficient. Merely repeating the language of the statute or 
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regulations does not satisfy the petitioner's burden of proof. Id.; Avyr Associates, Inc. v. Meissner, 1997 WL 
188942 at *5 (S.D.N.Y.). 
The AAO notes that in response to the request for evidence, a section detailing the beneficiary's day-to-day 
duties was provided. Many of these duties, by definition, fall under the definition of managerial capacity, 
including decisions regarding the hiring of employees. The beneficiary claims to oversee a subordinate staff 
of professionals who relieve her fi-om performing non-qualifying tasks. Upon further examination of the 
record, however, the AAO is not persuaded that this is actually the case. Although the beneficiary is not 
required to supervise personnel, if it is claimed that her duties involve supervising employees, the petitioner 
must establish that the subordinate employees are supervisory, professional, or managerial. See tj 
101(a)(44)(A)(ii) of the Act. 
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. tj 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 the particular field of 
endeavor. Matter of Sea, 19 I&N Dec. 817 (Comm. 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 the subordinate employee. In this case, the petitioner alleges that the beneficiary's subordinates are 
professional since they all possess advanced degrees. 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 purchasing and sales administration 
functions of the branch manager or the administrative functions of the office assistant, who are among the 
beneficiary's subordinates. Thus, the petitioner has not established that these employees possess or require 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. 
Furthermore, the branch manager and the office assistant are the only subordinates of the beneficiary 
considered when reviewing this issue, since they were the only employees working under her supervision in 
the San Diego office at the time of filing. Although the organizational chart lists Bing Xia, the director of 
technology development, as a third subordinate of the beneficiary, no payroll records were submitted to 
corroborate the claim that he was employed by the petitioner at the time of filing. In addition, while the 
beneficiary may have some indirect power over the two employees in the Houston office, there is no evidence 
in the record to demonstrate that these employees relieve her fi-om performing non-qualifying duties, such as 
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meeting and negotiating with customers. 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. at 604. A managerial or executive 
employee must have authority over day-to-day operations beyond the level normally vested in a first-line 
supervisor, unless the supervised employees are professionals. See Matter of Church Scientology 
International, 19 I&N Dec. 593, 604 (Comm. 1988). The petitioner has failed to show that this is the case in 
this matter. Consequently, the petitioner has not shown that the beneficiary satisfies the criteria of managerial 
capacity. 
Finally, counsel asserts that the denial of the petition is an infringement of Section 1502 of the California 
Corporation Code, which provides that a corporation must maintain a president or chief executive officer 
during its existence. Counsel asserts that the denial is essentially "usurping the power of the State to govern 
and regulate its own corporations." This assertion, and counsel's strenuous reliance thereon, is both illogical 
and unfounded. L-1A visas are designed for intra-company managerial and executive transferees to come and 
work in the United States, largely to facilitate the rotation of key personnel within multinational companies. 
The L visa classification is a nonimmigrant, temporary visa classification reserved for qualified managers, 
executives, or persons possessing specialized knowledge. The intention of the L visa classification is not to 
permanently satisfy staffing needs for U.S. entities, much less provide a permanent president or chief 
executive officer for the duration of the corporation's existence. The petitioning entity has been in existence 
since 2002, yet the beneficiary has only been in the United States under the title of president for a collective 
total of seven months since January of 2003. Counsel's reliance on this statute as a means to challenge the 
denial in this matter is completely misplaced and inappropriate. 
Furthermore, it should be noted that the definitions of managerial and executive capacity, as set forth under 
sections 101(a)(44)(A)-(B) of the Act, 8 U.S.C. fj$ 1 101(a)(44)(A)-(B), are not necessarily consistent with 
business industry standards or with the specific laws of any given state. In the event, however, that the 
California Corporation Code was relevant to a determination of managerial or executive capacity under the 
Act, the statute relied upon by counsel does not appear to require that the president or chief executive officer 
of a company actually reside in the United States. Nevertheless, it remains unexplained how this state statute 
necessitates the hiring of a foreign national as president or chief executive officer of the company, thereby 
requiring the granting of either an immigrant or nonimmigrant visa classification. 
In the present matter, the regulations provide strict evidentiary requirements for the extension of a "new 
office" petition and require CIS to examine the organizational structure and staffing levels of the petitioner. 
See 8 C.F.R. fj 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 CIS 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 fiom primarily performing 
operational and administrative tasks, the petitioner is ineligible by regulation for an extension. In the instant 
matter, the petitioner has not reached the point that it can employ the beneficiary in a predominantly 
managerial or executive position. Despite evidence indicating that an additional manager and cashier have 
been hired since the filing of the petition, the petitioner must establish eligibility at the time of filing the 
nonimmigrant visa petition. A visa petition may not be approved at a future date after the petitioner or 
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beneficiary becomes eligible under a new set of facts. Matter of Michelin Tire Corp., 17 I&N Dec. 248 (Reg. 
Comm. 1978). 
For the reasons stated above, the petitioner has failed to establish that the beneficiary will be employed in a 
primarily managerial or executive capacity. For this reason, the petition may not be approved. 
In visa petition proceedings, the burden of proving eligibility for the benefit sought remains entirely with the 
petitioner. Section 291 of the Act, 8 U.S.C. 1361. Here, that burden has not been met. Accordingly, the 
director's decision will be affirmed and the petition will be denied. 
ORDER: The appeal is dismissed.