dismissed L-1A Case: International Trade

U.S. Department of Homeland Security 
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FILE : WAC 05 134 50567 office: CALIFORNIA SERVICE CENTER Date: DEC 0 6 2006 
PETITION: 
 Petition for a Nonimmigrant Worker Pursuant to Section 10 1 (a)(15)(L) of the Immigration 
and Nationality Act, 8 U.S.C. 6 1 lOl(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. 
Administrative Appeals Office 
WAC 05 134 50567 
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 appeal will be summarily 
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. $ 1 101(a)(15)(L). The petitioner, a California corpora- 
the international trade of general merchandise. It claims to be a subsidiary o 
Seoul, Korea. The beneficiary was initially granted L-1A status in May 208! 
two-year extension of stay in April 2003. The petitioner now seeks to extend the beneficiary's status for a 
three-year period. 
The director denied the petition on June 27, 2005, concluding that the petitioner had not established that the 
beneficiary would be employed in a primarily managerial or executive capacity under the extended petition. 
On the Form I-290B, Notice of Appeal filed on July 26, 20Q5, counsel for the petitioner simply asserts: "US 
CIS erred in denying said petition. Counsel indicated on Form I-290B that a brief would be submitted within 
30 days. On October 1 1,2006, the AAO contacted counsel .by facsimile to advise him that to date, no brief or 
additional evidence has been incorporated into the record of proceeding. Counsel was afforded an 
opportunity to provide a copy of any evidence that was previously submitted within the 30-day period 
indicated on Form I-290B. On October 11, 2006, counsel advised the AAO that no additional brief or 
evidence had been submitted. Accordingly, the record of proceeding is complete. 
To establish eligibility under section 101(a)(15)(L) of the Act, the petitioner must meet certain criteria. 
Specifically, within three years preceding the beneficiary's application for admission into the United States, a 
firm, corporation, or other legal entity, or an affiliate or subsidiary thereof, must have employed the 
beneficiary for one continuous year. Furthermore, 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. 
Upon review, the AAO concurs with the director's decision and affirms the denial of the petition. Counsel's 
general objection to the denial of the petition, without identiiying any specific erroneous conclusion of law or 
statement of fact, is insufficient to overcome the director's determination. Counsel's limited statement on 
appeal fails to address, much less overcome, the well-founded conclusions reached by the director based on 
the evidence in the record. The unsupported statements of counsel on appeal or in a motion are not evidence 
and thus are not entitled to any evidentiary weight. See INS v. Phinpathya, 464 U.S. 183, 188-89 n.6 (1984); 
Matter of Ramirez-Sanchez, 17 I&N Dec. 503 (BIA 1980). 
As noted by the director, the petitioner has failed to submit evidence to corroborate its claimed staffing 
structure, and therefore, the record as presently constituted does not establish that the U.S. company employs 
a staff sufficient to relieve the beneficiary from performing the non-qualifying duties of the petitioner's 
import-export business, which appears to engage in both wholesale and retail sales activities. In response to a 
request for evidence issued on May 6, 2005, the petitioner submitted an organizational chart depicting eight 
employees, including the beneficiary as president, two managers, a secretary, a warehouse employee, a part- 
time delivery person, and two independent sales represen+tives. The petitioner's California Form DE-6, 
Quarterly Wage and Withholding Report, for the cjuarter ended on March 31, 2005, confirmed the 
WAC 05 134 50567 
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employment of only the beneficiary and a manager responsible for sales, purchasing and customer care. 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). The petitioner submitted no.documentary evidence of its use of independent sales representatives. 
Going on record without supporting documentary evidence is not sufficient for purposes of meeting the 
burden of proof in these proceedings. Matter of Sof$ci, 22 I&N Dec. 158, 165 (Comm. 1998) (citing Matter 
of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm. 1972)). 
Furthermore, the petitioner's description of the benefiqiary's duties includes a combination of vague and non- 
qualifying duties, and is insufficient to establish that he would be employed in a primarily managerial or 
executive capacity under the extended petition. ~orkxam~le, the pet~tioner stated that the beneficiary will 
"manage & direct all the operation," "review activities and reports," "develop appropriate company courses of 
action," and "coordinate activities of International Trade and Manufacturing division." The petitioner failed to 
describe the specific managerial or executive duties performed by the beneficiary within the scope of these 
broad responsibilities, and does not claim to hav4 an "International Trade and Manufacturing Division." 
Reciting the beneficiary's vague job re~~onsibilitiei or broadly-cast business objectives is not sufficient; the 
regulations require a detailed description of the b eficiary's daily job duties. The petitioner has failed to 
+ 
provide any detail or explanation of the beneficiaryts activities in the course of his daily routine. The actual 
duties themselves will reveal the true nature of the (pmployment. Fedin Bros. Co., Ltd. v. Suva, 724 F. Supp. 
1103, 1108 (E.D.N.Y. 1989), affd, 905 F.2d 41 (2d. eir. 1990). 
In addition the petitioner indicated that the beneficiary "plans & directs trade moving to overseas 
destinations," "supervises workers engaged in shipping & receiving & shipping, fieight, documents, way 
billing charges and collecting fees for shipments," "examines invoices [and] shipping manifests," and 
"negotiates with domestic customers." As discussed above, the petitioner has not established that it has any 
employees engaged in export trade, shipping and receiving or fee collection duties. Thus, either the 
beneficiary himself is performing these non-qualifying duties or he does not actually manage these activities 
as claimed by the petitioner. In either case, the AAO is left to question the validity of the petitioner's claim 
and the remainder of the beneficiary's claimed duties. Doubt cast on any aspect of the petitioner's proof may, 
of course, lead to a reevaluation of the reliability and sufficiency of the remaining evidence offered in support 
of the visa petition. Matter of Ho, 19 I&N Dec. 582,591 (BIA 1988). The petitioner also failed to clarify how 
routine tasks such as "negotiating" with customers or examining invoices fall under the statutory definitions 
of managerial or executive capacity. See section 101(a)(44) of the Act. 
The petitioner's description of the beneficiary's duties cannot be read or considered in the abstract, rather the 
AAO must determine based on a totality of the record whether the description of the beneficiary's duties 
represents a credible perspective of the beneficiary's role within the organizational hierarchy. As noted by the 
director, the record does not demonstrate that the petitioner has a sufficient number of employees in the 
United States who could purchase goods, manage the company's warehouse and monitor its inventory, 
arrange import and domestic transportation goods, perform the company's day-to-day wholesale and retail 
sales activities, issue invoices, perform clerical and administrative functions, market the petitioner's products, 
or perform routine accounting and bookkeeping functions. The petitioner's general description of the 
beneficiary's duties and the lack of personnel in the United States to perform the petitioner's non-qualifying 
day-to-day operational tasks precludes a finding that the beneficiary would be engaged in primarily 
managerial or executive duties. The AAO thus concurs with the director's finding that the beneficiary would 
WAC 05 134 50567 
Page 4 
reasonably be required to perform primarily non-qualifying operational and administrative duties. An 
employee who "primarily" performs the tasks necessary to produce a product or to provide services is not 
considered to be "primarily" employed in a managerial or executive capacity. See sections 101(a)(44)(A) and 
(B) of the Act (requiring that one "primarily" perform the enumerated managerial or executive duties); see 
also Matter of Church Scientology Int '1, 19 I&N Dec. 593,604 (Comm. 1988). 
The AAO notes that CIS previously approved two L-1A petitions filed on behalf of the beneficiary. The prior 
approvals do not preclude CIS from denying an extension of the original visa based on a reassessment of the 
petitioner's qualifications. Texas AM Univ. v. Upchurch, 99 Fed. Appx., 556, 2004 WL 1240482 (5th Cir. 
2004). If the previous nonimmigrant petitions were approved based on the same unsupported assertions that 
are contained in the current record, the approval would constitute material and gross error on the part of the 
director. The AAO is not required to approve applications or petitions where eligibility has not been 
demonstrated, merely because of prior approvals that may have been erroneous. See, e.g. Matter of Church 
Scientology International, 19 I&N Dec. 593, 597 (Comm. 1988). It would be absurd to suggest that CIS or 
any agency must treat acknowledged errors as binding precedent. Sussex Engg. Ltd. v. Montgomery, 825 F.2d 
1084, 1090 (6th Cir. 1987), cert. denied, 485 U.S. 1008 (1988). Further, each nonimmigrant petition is a 
separate record of proceeding with a separate burden of proof. Based on the limited evidence submitted in 
support of the petitioner's claim that the beneficiary would be employed in a managerial or executive 
capacity, the director was justified in departing from the prior L-1A petition approval sand denying the instant 
petition. 
Regulations at 8 C.F.R. 3 103.3(a)(l)(v) state, in pertinent part: 
An officer to whom an appeal is taken shall summarily dismiss any appeal when the party 
concerned fails to identify specifically any erroneous conclusion of law or statement of 
fact for the appeal. 
Inasmuch as counsel has failed to identify specifically an erroneous conclusion of law or a statement of fact in 
this proceeding, the appeal must be summarily dismissed. 
In visa petition proceedings, the burden of proving eligbility for the benefit sought remains entirely with the 
petitioner. Section 291 of the Act, 8 U.S.C. 3 136 1. Here, that burden has not been met. 
ORDER: 
 The appeal is summarily dismissed.