dismissed L-1A Case: International Trade

U.S. Department of Homeland Security 
20 Mass Ave., N.W., Rm. A3042 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
File: WAC 03 141 51 156 Office: CALJFORNIA SERVICE CENTER &te: 400 2 
2o05 
IN RE: Petitioner: 
Beneficiary: 
Petition: Petition for a Nonimmigrant Worker Pursuant to Section 10 1 (a)(15)(L) of the Immigration 
and Nationality Act, 8 U.S.C. 9 1101(a)(15)(L) 
IN BEHALF OF PETITIONER: 
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, Director 
Administrative Appeals Office 
WAC 03 141 51156 
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 filed this nonimmigrant petition seeking to extend the employment of its vice president as an 
L- 1 A nonimmigrant intracompany transferee pursuant to section 10 1 (a)(15)(L) of the Immigration and 
Nationality Act (the Act), 8 U.S.C. 5 1101(a)(15)(L). The petitioner is a California limited liability company, 
organized on September 15, 1997, that is engaging in the international trade of biological plastic test products. 
The petitioner claims that it is the subsidiary of Dong Fang Plastics & Hardware Factory, located in Guang 
Dong, China. The beneficiary was initially granted a three-year period of stay in the United States in L-1A 
status commencing in April 2000, and the petitioner now seeks to extend the beneficiary's stay for an 
additional two years. 
The director denied the petition, concluding that the petitioner did not establish that the beneficiary would be 
employed in the United States in a primarily managerial or executive capacity. Specifically, the director 
found that there is no evidence on record of a subordinate staff of professional, managerial or supervisory 
personnel to relieve the beneficiary from performing the non-qualifying day-to-day activities of the petitioner. 
The director concluded that the record does not establish that the U.S. entity has the organizational 
complexity to support an executive position, or that the beneficiary's activities will be primarily managerial or 
executive. 
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 beneficiary 
has been and will be performing services in a managerial or executive capacity. Counsel submits a brief in 
support of this assertion. 
To establish eligibility for the L-1 nonimmigrant visa classification, the petitioner must meet the criteria 
outlined in section 10 1 (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)(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, inchding a detailed description of the services to be performed. 
WAC 03 141 51156 
Page 3 
(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 
education, training, and employment qualifies hidher 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. 
At issue in the present 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. 5 1101(a)(44)(B), defines the term "executive capacity" as an 
assignment within an organization in which the employee primarily: 
(i) directs the management alf 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 
WAC 03 141 51156 
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(iv) receives only general supervision or direction from higher level executives, the board 
of directors, or stockholders of the organization. 
In a letter dated March 14, 2003 accompanying the initial petition, the petitioner described the beneficiary's 
job duties as follows: 
As Vice President, [the beneficiary] will assist the President for the daily operation of the 
company business [sic]. Especially when the President is absent, [the beneficiary] will be 
responsible for the overall management of the company. [The beneficiary] will assist the 
President in developing and promoting the company business in international trade and 
production of biological plastic test products. [The beneficiary] will be in charge of 
marketing development. He will design long-term and short-term business plans and review 
project reports, proposals and other activity data of the company to decide further business 
goals. In addition, he will hire experienced business sales representative to develop 
international market as will as the U.S. market of medical testing products. Besides, he will 
hire other employees to implement the company's business plans and goals. Furthermore, 
[the beneficiary] will participate in major business negotiations. [The beneficiary] will have 
wide latitude and discretionary authority in making decisions in relation to the day-to-day 
operation of the company. 
On May 28, 2003, the director requested additional evidence. Specifically, the director requested the 
following evidence to establish that the beneficiary has been or will be performing the duties of a manager or 
executive with the U.S. company: (1) the total number of employees at the U.S. location where the 
beneficiary will be employed; (2) a copy of the U.S. entity's organizational chart, which should include the 
current names of all executives, managers, supervisors, and employees within each department or subdivision, 
and identify the beneficiary's position in the chart and list all employees under the beneficiary's supervision 
by name and job title, with a brief description of the job duties, educational level, annual salaries/wages and 
immigration status of each such employee; and (3) copies of the U.S. entity's payroll summary and Internal 
Revenue Service (IRS) Forms W-2 and W-3 evidencing wages paid to employees. 
In response, counsel for the petitioner stated in a letter dated July 30, 2003 that there are six employees at the 
U.S. location. The petitioner provided through counsel an organization chart, which shows the president 
supervising the beneficiary, who in turn supervises the production manager, the R&D scientist, and the 
marketing manager. The production manager is shown supervising a "production team" of one. Counsel's 
July 30, 2003 letter also set forth the name, job title, job duties, educational level, annual salarieslwages and 
immigration status of each employee under the beneficiary's supervision. The petitioner describes the job 
duties of the beneficiary's subordinates as follows: 
Production manager - responsible for overall production 
Production team - production, shpping, and receiving 
R & D scientist -research and develop products 
Marketing manager - international marketing 
WAC 03 141 51 156 
Page 5 
The petitioner also submitted IRS Forms W-2 for the year 2002 for all six of its employees. 
On March 5, 2004, the director denied the petition. The director noted that the petitioner failed to provide a 
brief description of job duties, educational level, annual salarieslwages and immigration status for all 
employees under the beneficiary's supelvision. Moreover, the director found that the wages paid to the 
managers and scientist on the petitioner's staff as listed on the 2002 Forms W-2 were unusually low for 
professional and managerial positions. In light of the lack of job descriptions and the low wages, the director 
found that the evidence does not establish that the beneficiary's subordinates are professional, managerial or 
supervisory employees who would relieve the beneficiary from performing the non-qualifying, day-to-day 
activities of the petitioner. The director concluded that the record does not establish that the U.S. entity 
contains the organizational complexity to support an executive or managerial position, or that the 
beneficiary's activities will be primarily managerial or executive. 
On appeal, counsel for the petitioner contends that the beneficiary has been and will be performing services in 
a managerial or executive capacity. Counsel asserts that the beneficiary supervises and controls the work of 
both managerial and professional employees. Counsel provides a description of a "typical day" for the 
beneficiary and contends that the beneficiary is performing primarily duties that are characteristic of a 
manager or executive. In support of his assertions, counsel cites to unpublished decisions where the AAO 
approved petitions for L-1 A petitions involving one-person offices. 
Initially, the AAO notes that contrary to the director's statement that the petitioner failed to provide a brief 
description of job duties, educational level, annual salarieslwages and immigration status for all employees 
under the beneficiary's supervision, the petitioner in fact did provide the requested information through its 
counsel in the July 30, 2003 letter. Therefore, the director's finding in that respect, and only in that particular 
respect, is hereby withdrawn. 
Notwithstanding the foregoing, on reviewing the petition and the evidence of record, the AAO concurs with 
the director's conclusion that the petitioner has not established that the beneficiary has been or will be 
employed in a managerial or executive capacity. 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)() 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. 
In its March 14, 2003 letter, the petitioner stated that the beneficiary would "assist the President [in] the daily 
operation of the company business," "be responsible for the overall management of the company" when the 
president is absent, and "assist the President in developing and promoting the company business in 
international trade and production of biological plastic test products." These statements are a vague and 
nonspecific description of the beneficiary's duties that fails to demonstrate what the beneficiary does on a 
WAC 03 141 51 156 
Page 6 
day-to-day basis.' 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 Calqornia, 14 I&N Dec. 190 (Reg. Comm. 1972)). Conclusory assertions 
regarding the beneficiary's employment capacity are not sufficient to meet the petitioner's burden of proof. 
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 (E.D.N.Y. 1989), am, 905 F.2d 41 (2d. Cir. 
1990). 
In addition, the petitioner indicated in the March 14, 2003 letter that the beneficiary would "be in charge of 
marketing development." The petitioner claims that it has a marketing manager, whose job duties are 
described in counsel's July 30, 2003 letter only as "international marketing." Based on these brief and 
general job descriptions, the AAO cannot determine to what extent the beneficiary is "in charge of' the 
company's marketing function rather than directly performing this function himself. Similarly, the petitioner 
indicates that the beneficiary "design[s] long-term and short-term business plans and review[s] project reports, 
proposals and other activity data of the company to decide further business goals." However, the brief "job 
descriptions" of the beneficiary's subordinates do not indicate that any of those employees actually prepare the 
project reports, proposal, and activity data that the beneficiary purportedly reviews. If the beneficiary actually 
performs the marketing function of the company rather than manages or directs it, and actually prepares the 
project reports, proposals and activity data himself rather than reviews them to plan or direct the business as 
the petitioner claimed, he is performing tasks that are necessary to provide a service or product, which will 
not be considered managerial or executive in nature. 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 (Comrn. 1988). 
The evidence of record also does not support counsel's claim that the beneficiary supervises and controls the 
work of both managerial and professional employees. 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 5 101(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. 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 
1 The AAO notes that on appeal, counsel attempts to describe "a typical day'' to illustrate the beneficiary's 
executive duties. However, descriptions such as "reviewed faxes and letters," "made telephone calls," 
"prepare a report to the president," without further details as to the context of these activities, shed no light on 
whether these acts Oare "managerial or executive" in nature. Moreover, the record contains no evidence to 
support these assertions by counsel. Without documentary evidence to support the claim, the assertions of 
counsel will not satisfy the petitioner's burden of proof. The unsupported assertions of counsel do not 
constitute evidence. Matter of Obaigbena, 19 I&N Dec. 533, 534 (BIA 1988); Matter of Laureano, 19 I&N 
Dec. 1 (BIA 1983); Matter ofRamirez-Sanchez, 17 I&N Dec. 503,506 (BIA 1980). 
WAC 03 141 51156 
Page 7 
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. 8 17 (Comm. 1988); Matter of Ling, 13 I&N Dec. 35 (R.C. 1968); 
Matter of Shin, 1 l 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. While the petitioner reported that all of the beneficiary's subordinates received 
"college" level education, 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 provided any information that would establish that an 
advanced degree is actually necessary to perform the duties of any of the beneficiary's subordinates, such that 
they could be classified as professionals. Moreover, while two of the beneficiary's subordinates have 
managerial titles, the brief one-line descriptions of their job duties are insufficient to show that they actually 
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 
101(a)(44)(A)(ii) of the Act. 
Counsel's reference to unpublished MO decisions is also unpersuasive. Counsel asserts that in the 
referenced decisions, the AAO determined that the beneficiary met the requirements of serving in a 
managerial and executive capacity for L-1 classification even though the petitioning companies in those 
matters are one-person offices. Counsel has furnished no evidence to establish that the facts of the instant 
petition are analogous to those in the unpublished decisions. Moreover, while 8 C.F.R. $ 103.3(c) provides 
that AAO precedent decisions are binding on all employees of the Citizenship and Immigration Services 
(CIS) in the administration of the Act, unpublished decisions are not similarly binding. 
Finally, the AAO notes that the petitioner indicates in the March 14, 2003 letter that the beneficiary will hire a 
sales representative to develop the international and U.S. markets and other employees to implement the 
company's business plans and goals. However, future staffing and expansion plans that have yet to be 
implemented do not establish or bolster the beneficiary's present eligibility for the benefit sought. '?he 
petitioner must establish eligibility at the time of filing the nonirnrnigrant visa petition. A visa petition may 
not be approved at a future date after the petitioner or beneficiary becomes eligible under a new set of facts. 
Matter of Michelin Tire Corp., 17 I&N Dec. 248 (Reg. Comm. 1978). 
Accordingly, the AAO concurs with the director's conclusion that the petitioner has not established that the 
beneficiary will be employed in a primarily managerial or executive capacity, as required by 8 C.F.R. 5 
214.2(1)(3). 
Beyond the decision of the director, the PA0 finds that there are material inconsistencies in the evidence of 
record regarding the ownership of the U.S, entity, which cast doubt upon the petitioner's claim that there 
exists a qualifying relationship between the U.S. and foreign entities. Specifically, the petitioner indicated on 
the Form 1-129 that the foreign entity owns 82% of its issued and outstanding membership interest. In 
support of this claim, the petitioner provided a copy of the U.S. entity's operating agreement, certificates of 
WAC 03 141 51 156 
Page 8 
interest, and membership interest transfer ledger, which indicate that as of June 20, 1998, the forei n enti 
owned 82% interest in the U.S. entity, for which it had paid $30,000, and an individual named wh 
owned the remaining 18%, for which he had paid $6,500. However, the petitioner also submitted its 2001 
IRS Form 1065, U.S. Return of Partnership Income, and California Form 568, Limited Liability Company 
Return of Income which indicate that-has 50.0041% membership interest in the U.S. entity, and an 
individual nameheld the remaining 49.9959%. 
On May 28, 2003, the director requested proof of purchase b-and-of their respective 
proportions of interest in the U.S. company as set forth in the tax returns. In response, the petitioner claims 
that the two individuals had paid for their shares in the U.S. entity and submitted (1) copies of money transfer 
documents showing that funds in the amount of $29,983.79 was transferred from to another 
individual and then to- purported1 for the U.S. entity's account; and (2) cancelled checks dated 
January through May 1998 showing that paid $8,500, an-paid $12,500, to the U.S. entity. 
At that time, there was no indication from the petitioner that the information regarding the ownership of the 
U.S. entity as set forth in the schedules to the tax returns was incorrect. 
On October 11, 2003, the director requested further clarification of the conflicting information regarding the 
ownership of the U.S. entity as set forth in the organizational documentation of the U.S. entity and its 2001 
tax returns. In response, the petitioner stated that (1) the foreign entity andid own 82% and 18% of 
the U.S. entity, respectively, at the tim~e the company was established; (2) the "50.001%" and "49.999%" 
ownership distribution set forth in the tax returns reflected erroneous assumptions of the U.S. entity; and (3) 
presently, the foreign entity owns 78.33% andowns 21.67% of the U.S. entity. The petitioner 
submitted no documentation to support these assertions. It 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). Furthermore, willful misrepresentation in 
these proceedings may render the beneficiary inadmissible to the United States. Section 212(a)(6)(C) of the 
Act. 
In light of the unresolved inconsistencies described above, the AAO cannot determine based on the present 
record the nature and extent of the foreign entity's ownership interest in the U.S. entity. Consequently, the 
AAO cannot conclude that the evidence of record is sufficient to establish that there exists a qualifying 
relationship between the foreign and U.S entity as required by the regulation at 8 C.F.R. 5 214.2(1)(l)(ii)(A) 
and (G). For this additional reason, the petition may not be approved. 
In addition, it is noted that the petitioner indicated under penalty of perjury in Part 4 of the Form 1-129 
petition that it had never filed an immigrant petition for the beneficiary. However, CIS records show that on 
August 7, 2000, the petitioner filed a petition on Form 1-140, receipt number WAC 00 252 56158, for 
classification of the beneficiary as an employment-based immigrant under section 203(b)(l)(C) of the Act. 
That petition was denied by the director on or about July 9, 2001. The regulations at 8 C.F.R. 5 214.2(1)(2)(i) 
state that "[flailure to make a full disclosure of previous petitions filed may result in a denial of the petition." 
As the petitioner indicated on the Form 1-129 that it had never filed an immigrant petition for the beneficiary, 
WAC 03 141 51 156 
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and the petitioner failed to fully disclose the previously filed petition, this petition will be denied as a matter 
of discretion. 
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), afd. 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). When the AAO denies a petition on multiple alternative grounds, a plaintiff can 
succeed on a challenge only if the plaintiff shows that the AAO abused its discretion with respect to all of the 
AAO's enumerated grounds. See Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d at 1043. 
The petition will be denied for the above stated reasons, with each considered as an independent and 
alternative basis for denial. 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. Accordingly, the director's decision will be affirmed and the petition will be denied. 
ORDER: The appeal is dismissed.