dismissed L-1A Case: International Trade And Investment

U.S. Department of Homeland Security 
20 Massachusetts Ave., N.W., Rm. A3042 
Washington, DC 20529 
, $, $9 '. "."<%* f' $+$ac,d.?'' 6 - C ' - - U.S. Citizenship 
,i3-17 , .:*. 
A v-y .$[;: , 
and Immigration 
<#;&tq{ ,$ ' -2l t" . 
', 
Services 
< ,, ' 
+p*P>?- \' 
Ir 
FILE: WAC 03 229 50357 Office: CALIFORNIA SERVICE CENTER Date: 
- 
and Nationality Act, 8 U.S.C. 5 1 101(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 oece. 
Kbert P. Wiemann, Director 
Administrative Appeals Office 
WAC 03 229 50357 
Page 2 
DISCUSSION: The Director, California Service Center, denied the petition for a nonirnmigrant 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 president as an L-1A 
nonimmigrant intracompany transferee pursuant to section 101(a)(15)(L) of the Immigration and Nationality 
Act (the Act), 8 U.S.C. 5 1101(a)(15)(L). The petitioner is a corporation organized in the State of California 
and claims to be engaged in the business of international trade and investment. The petitioner states that it is 
a subsidiary of , located in China. The petitioner now seek to extend the 
beneficiary's stay for an additional two years. 
The director denied the petition concluding that the petitioner failed to establish that the beneficiary would be 
employed in the United States in a managerial or executive capacity. 
On appeal, counsel disputes the director's findings in a supplemental brief. 
To establish L-1 eligbility under section 101(a)(15)(L) of the Immigration and Nationality Act (the Act), 
8 U.S.C. I lOl(a)(lS)(L), the petitioner must demonstrate that the beneficiary, within three years preceding 
the beneficiary's application for admission into the United States, has been employed abroad in a qualifying 
managerial or executive capacity, or in a capacity involving specialized knowledge, for one continuous year 
by a qualifying organization and seeks to enter the United States temporarily in order to continue to render his 
or her services to the same employer or a subsidiary or affiliate thereof in a capacity that is managerial, 
executive, or involves specialized knowledge. 
The regulations at 8 C.F.R. 5 214.2(1)(3) state that an individual petition filed on Form 1-129 shall be 
accompanied by: 
(9 Evidence that the petitioner and the organizahon which empIoyed or will employ 
the alien are qualifying organizations as defined in paragraph (I)(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 education, training, and employment qualifies him/her to perform the 
intended services in the United States. 
At issue in this proceeding is whether the petitioner has established that the beneficiary will be employed 
primarily in a managerial or executive capacity. 
WAC 03 229 50357 
Page 3 
Section 101 (a)(44)(A) of the Act, 8 U.S.C. 5 1 101 (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; 
. . 
11. 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; 
... 
111. if another employee or other employees are directIy 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 Ievel 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)@) of the Act, 8 U.S.C. 1 10 1 (a)(44)(B), provides: 
The term "executive capacity" means 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; 
... 
111. 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 support of the petition, the petitioner provided the following description of the beneficiary's job duties: 
1. He determines [the] company's policies and establishes business goals. With [the] business 
nature in mind, he considers [the] company's marketing capability, financial capability and 
human resource. He also considers social and economic environment here in the United 
States. Then, he determines and formulates [the] company's policies of product, price, 
distribution, promotion, finance and human resource. And he sets business goals regarding 
market share, revenue and profit. 
WAC 03 229 50357 
Page 4 
2. He devises an evaluation system and assigns authorities and responsibilities to his 
supervisees. He reviews marketing and financial reports to ensure that [the] company's 
objectives are achieved. He analyzes operations to evaluate [the] company's performance 
and to determine areas of cost reduction and program improvement. He directs financial and 
budget activities to fund operations and increase efficiency. 
3. He exercises his discretionary authority to make decisions. If [the] business environment 
changes, he adjusts policies regarding [the] product, price, distribution, promotion, finance 
and human resources. He determines business orientation and operation. 
4. He reports to the parent company in China. The report concerns the performance of the U.S. 
subsidiary and business opportunities here in the United States. He also receives instructions 
and information from the parent company. 
The petitioner also provided an organizational chart showing five employees with the beneficiary at the top of 
the organizational hierarchy. The chart indicated that the beneficiary has three subordinates, which include a 
business manager, a chief financial officer, and a secretary. The one other position in the company is a 
business clerk, who is subordinate to the business manager. 
On August 12, 2003, the director issued a notice requesting additional evidence acknowledgmg the 
petitioner's prior submission of an organizational chart. However, the director stated that the previously 
submitted chart did not contain sufficient information. Therefore, the petitioner was instructed to indicate its 
total number of employees, and to submit a line and block organizational chart describing the petitioner's 
managerial hierarchy. The petitioner was also asked to identify all employees under the beneficiary's 
supervision by name and job title, and to provide their brief job descriptions, educational levels, salaries, and 
immigration statuses. 
The petitioner complied with the director's request, stating that it currently has a total of five employees. The 
petitioner also provided information regard all of its employees except the beneficiary. 
On August 29, 2003, the director denied the petition noting that the employees supervised by the beneficiary 
are not managerial or professional. The director concluded that the petitioner has not reached a complexity 
level that would support the beneficiary in a qualifying capacity. 
On appeal, counsel submits a brief recreating the petitioner's organizational chart. He also restates the 
beneficiary's duties as provided in support of the petition and describes a oneday schedule of the 
beneficiary's work activities claiming that the beneficiary is the petitioner's top executive who primarily 
performs duties typically associated with those of a manager or executive. However, the beneficiary's 
overall job description and one-day schedule do not support counsel's claim. The beneficiary's job 
description emphasizes his heightened degree of discretionary authority over the petitioner's daily and overall 
business activity. While this factor is a relevant and necessary component in identifying a manager or 
executive within the statutory definition, 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. 
9 214.2(1)(3)(ii). In the instant case, the beneficiary's daily tasks seem to consist primarily of various 
business meetings with his subordinates and other business associates. However, there is insufficient detail as 
to the subject matter of these meetings. Furthermore, the beneficiary's job description states that he reviews 
WAC 03 229 50357 
Page 5 
marketing and financial reports; yet, the petitioner did not indicate that any of its employees actually perform 
the marketing function or create any reports for the beneficiary to review. Moreover, the beneficiary's daily 
work schedule indicates that the beneficiary was actually in the process of preparing a report to be reviewed 
by the president. This indication is confusing for two reasons. First, because the job description indicates 
that the beneficiary reviews, rather than creates reports; and second, because the beneficiary's title is that of 
president. Therefore, the indication that the beneficiary would create a report to be reviewed by the president 
directly contradicts the petitioner's ori~nal claim. It is incumbat 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 hes. Matter of Ho, 19 I&N Dec. 582, 591-92 (BIA 1988). In addition, 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. Id. In the instant matter, the conflicting information is 
offered in the same appellate brief without any additional explanations to resolve this apparent inconsistency. 
In addition, the petitioner has indicated that it is an import and export operation that conducts millions of 
doIlars worth of trade. However, neither the petitioner's organizational chart, nor any of the job descriptions 
for its employees indicate who is actually doing the sales and marketing, particularly for the materials that are 
imported into the United States for the assumed purpose of selling such materials in the U.S. market. Going 
on record without supporting documentary evidence is not sufficient for purposes of meeting the burden of 
proof in these proceedings. Matter of Treasure Craft ofCalifornia, 14 I&N Dec. 190 (Reg. Comm. 1972). 
On review, the record as presently constituted is not persuasive in demonstrating that the beneficiary has been 
or will be employed in a primarily managerial or executive capacity. The record does not establish that a 
majority of the beneficiary's duties have been or will be primarily directing the management of the 
organization. The record is unclear as to who actualIy performs the sales and marketing functions of the 
petitioner's business. Therefore, the AAO cannot affirmatively determine that the beneficiary would be 
relieved from having to perform primarily these non-qualifying tasks himself. Although counsel has cited a 
number of the AAO's unpublished cases, 8 C.F.R. 5 103.3(c) only binds Citizenship and Immigration 
Services (CIS) employees to AAO precedent decisions. Unpublished decisions, such as the ones cited by 
counsel, are not similarly binding. The petitioner has not demonstrated that it has reached a level of 
organizational complexity wherein the hirindfiring of personnel, discretionary decision-making, and setting 
company goals and policies constitute significant components of the duties performed on a day-to-day basis. 
Nor does the record demonstrate that the beneficiary primarily manages an essential function of the 
organization. Based on the evidence furnished, it cannot be found that the beneficiary has been or will be 
employed primarily in a qualifying 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. 
ORDER: The appeal is dismissed.