dismissed L-1A Case: International Transportation

U.S. Department of Homeland Security 
20 Massachusetts Ave., N.W., Rm. 3000 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
Services 
File: EAC 08 013 52907 Office: VERMONT SERVICE CENTER Date: OCT 3 1 2008 
IN RE: 
Petition: 
 Petition for a Nonimmigrant Worker Pursuant to Section 10 1 (a)(l 5)(L) of the Immigration 
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 office. 
Administrative Appeals Office 
EAC 08 013 52907 
Page 2 
DISCUSSION: The Director, Vermont 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 president as an L-1A 
nonimmigrant intracompany transferee pursuant to section 10 1 (a)(] 5)(L) of the Immigration and Nationality 
Act (the Act), 8 U.S.C. § 1101(a)(15)(L). The petitioner, a New York corporation, states that it is engaged in 
international transportation services. The petitioner claims to be a subsidiary of China Shipping Development 
Co., Ltd., located in China. The petitioner has employed the beneficiary in L-1A status since January 2005 
and now seeks to extend his status for three additional years. 
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 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 emphasizes that the 
beneficiary was previously granted L-1A status to work in the same capacity for the petitioner, and asserts 
that the petitioner has provided ample evidence to establish that the beneficiary will continue to be employed 
as a manager or executive. Counsel contends that the director disregarded the beneficiary's duties and the 
documentary evidence submitted, but instead erroneously based his decision on the size of the petitioning 
company. Counsel submits a brief and additional documentary 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 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. Finally, counsel contends that the beneficiary's organizational structure is 
sufficiently complex to support the beneficiary in a position that is primarily managerial. 
The regulation at 8 C.F.R. 8 214.2(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. 
EAC 08 013 52907 
Page 3 
(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 himher 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 sole issue addressed by the director is whether the petitioner established that 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 
hnction 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 1 Ol(a)(44)(B) of the Act, 8 U.S.C. 5 1 101(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. 
EAC 08 01 3 52907 
Page 4 
The petitioner filed the nonirnmigrant visa petition on October 11, 2007. The petitioner stated on Form 1-129 
that it is an international transportation company established in 2003, with 15 employees and gross annual 
income in excess of $10 million. In a letter dated October 9, 2007, counsel for the petitioner stated that the 
beneficiary will perform the following duties as general manager:' 
[The beneficiary] maintains the authority to make any decisions with respect to the 
organizational, financial, and marketing activities of the company. 
In his day-to-day business operations, [the beneficiary] formulates plans and programs. He 
directs financial and commercial policies and practices of the company to ensure that 
financial objectives, goals, and corporate growth are sound and in accordance with 
government regulations. 
He confers with department managers to plan and initiate programs concerning organizational 
and operational functions of the company and oversees their execution. [The beneficiary] 
directs major fiscal and physical planning activities such as development of budget and 
building expansion programs, and recommends them to the shareholders for adoption. He 
coordinates communication and reporting activities between departments and branch offices 
to ensure availability of data required for efficient daily operations. 
[The beneficiary] approves operational procedures, rules, and standards relating to staff 
classification standards, financial disbursements, and accounting requirements. He delegates 
to subordinate corporate officers authority for administering activities and operations under 
their control. [The beneficiary] reviews reports and financial statements to determine policy 
changes due to changes in economic conditions and market demands. He confers with 
company officials to plan business objectives, to develop organizational policies to 
coordinate functions and operations between divisions and departments, and to establish 
responsibilities and procedures for attaining objectives. 
[The beneficiary] reviews reports and financial statements to determine progress and status in 
attaining objectives and revises objectives and plans in accordance with current conditions. 
He directs formulation of financial programs to provide funding for new or continuing 
operations to maximize returns on investments, and to increase productivity. 
Furthermore, [the beneficiary] directs development of a strategic plan for the quality program 
and establishment and maintenance of all systems to support external certification of quality 
construction systems. He also represents the company to the financial community, major 
customers, government agencies, and the public. 
In summary, [the beneficiary's] duties are as follow[s]: 
-- -- 
I 
 The petitioner stated on Form 1-129 that the beneficiary will serve as the petitioner's president, but he is 
referred to as "general manager" in the majority of the documentation submitted. 
EAC 08 0 13 52907 
Page 5 
Direct development of the structure, policies, and objectives of the company in 
accordance with the Business Plan 
Direct market research and analysis to fulfill parent company's initial objectives 
Develop financial plans and strategies, including attracting continued investment from 
the parent company to assure sufficient capital to implement the Business Plan, as well 
as direct overall financial and accounting policies and controls 
Negotiate and ratify contracts on behalf of the company, including final determination of 
products quantity, price and payment terms and 
Continue directing the business cooperation between the parent company and its US 
subsidiary; confer with the Board of Directors of the parent company to establish joint 
financial strategies; oversee the development of joint projects between the US subsidiary 
and its parent company. 
The petitioner submitted an organizational chart for the U.S. company which identifies the beneficiary as 
general manager, a vice general manager (April Shen), and five departments: Ocean, Air, 
Customs/Import/Export, Trucking/Warehouse, and AccountingIFreight Cashier. 
The organizational chart identifies a total of 14 subordinate employees as follows: 
Ocean Import/Ocean Export 
 Air Import/Air Export 
The petitioner also provided payroll records from its payroll service provider for the pay period ended on 
September 1, 2007. During that two-week period, the petitioner paid the following employees, in addition to 
the beneficiary: 
EAC 08 013 52907 
Page 6 
The payroll report also included a master list of employees who worked for the company in 2007 along with 
their hire dates and status. This list shows that more than one-third of the em~lovees de~icted on the 
A d 
etitioner's or anizational chart s ecifically, 
were terminated during 2007, prior to the filing of the instant petition. 
other employee, 
 appears on the master list, and while it does not appear that she was 
terminated, there were no 2007 earnings reported for her, and her status at the time the petition filed is 
unclear. With res ect to the other employees on the organizational chart, there is no one by the name of 'm m9d or 'listed on the master list of employees or listed on the petitioner's 2006 
Forms W-2. There was an employee named who received a Form W-2 from the petitioner in 
2006, but he does not appear on the employee list for 2007. The AAO assumes that this individual is the " 
referenced on the organizational chart. 
The director found the initial evidence insufficient to establish that the beneficiary will be employed in a 
primarily managerial or executive capacity under the extended petition. Accordingly, the director issued a 
request for additional evidence (RFE) on December 7, 2007. The director instructed the petitioner to submit: 
(1) a comprehensive description of the beneficiary's duties; (2) a list of U.S. employees by name and job title; 
(3) complete position descriptions for all U.S. employees, including a breakdown of the number of hours 
devoted to their job duties on a weekly basis; (4) copies of educational credentials for the beneficiary's 
subordinates; (5) copies of IRS Forms 941, Employer's Quarterly Federal Tax Return, for all four quarters of 
2006 and the first three quarters of 2007; and (6) copies of all IRS Forms W-2 and 1099 issued in 2006. 
In a response dated January 17, 2008, counsel for the petitioner provided the following description of the 
beneficiary's duties: 
Performing essential executive functions of president of the company in all aspects of 
business decision making, policy making and personnel management particularly; 
Establishing the company management structure, office rules, operation guidelines, 
and communication protocol between offices abroad and within the U.S.; 
Formulating immediate goals for expansion and long term business policies in 
accordance with the parent company's direction; 
Ensuring our company's compliance with regulations, guidelines, business direction 
and profit goals established and mandated by the parent company; 
Directing the preparation of financial plans and annual budget reports for the parent 
company's review; 
Researching and familiarizing himself with the American and Chinese markets as well 
as the relationship between the two markets; 
Amending andlor modifying company's directions in response to the changing 
markets; 
Meeting andlor discussing with the parent company to form an [sic] cooperative effort 
in response to the changing market; 
Exercising personnel management authority concerning hiring, recruiting and 
discharging of subordinates; 
EAC 08 01 3 52907 
Page 7 
Exercising wide latitude in discretionary decision-making power and receiving only 
general direction &om parent company; 
To recruit and supervise one vice general manager and other department head; 
To set up all management systems, including the business, budget, accounting, 
clientele, compliance, banking, and texts; 
To set up sales, marketing, advertisement and commission systems in order to develop 
a wider customer's base in the U.S.; 
To recruit proper public relationship firm or marketing firms as consultant to increase 
the image and expose [sc] of parent Company's services. 
The petitioner did not submit copies of the requested Forms 941, but did submit comparable information 
provided by its payroll services provider. The documentation provided shows that, as of September 2007, the 
month preceding the filing of the petition, the petitioner employed two employees in California and six 
employees in New York. Notwithstanding the fact that the petitioner was only able to document a total of 
eight employees, it submitted an employee list with names, job titles and job duties for 15 individuals. 
The petitioner indicated that the vice president, Apple Shen, performs "executive functions . . . in decision 
making, policy making and personnel management, particularly in the Air, Ocean, Customs 
Service/Import/Export and TruckingIWarehouse Department" and spends 100 percent of her time on 
management. 
 The petitioner stated that the ocean impodexport manager, 
 is in charge of 
managing the operation of her department, monitoring its performance, liaising with terrninal/agent/steam 
line, dealing with customer complaints, training new employees, controlling shipping costs, and preparing a 
sea transportation report, statistics and analysis. The petitioner stated that she spends 60 percent of her time 
on operational tasks and 40 percent of her time on management tasks. 
The other Ocean department employees listed were 
 role is identified as "Ocean 
documentation," and 
 who were all identified as "Ocean 
operation" employees. As discussed above, the evi 
 establish that these employees 
worked for the petitioner as of the date the petition was filed; therefore, their claimed duties will not be 
discussed. 
The petitioner indicated that its ak importiexport manager is 
 who was actually terminated on 
April 9, 2007, according to the payroll documentation provided. The petitioner indicated that - 
andre the air operation employees; however, as discussed above, was terminated in July 
2007, and the petitioner has not established while listed on the payroll employee list, actually 
received any wages in 2007. The petitioner paid her $320 in 2006. 
The petitioner indicated that its customs department includes a "customs superior," 
 who was 
terminated on April 9, 2007, and a customer operation employee, -also known as , who 
received no wages from the petitioner in 2007 through September 1 of that year. 
The petitioner stated that its trucking department includes a trucking supervisor, 
 and a trucking 
operations employee,. Mr. 
 is responsible for liaising with trucking companies, arranging trucking 
I 
' EAC 08 013 52907 
Page 8 
services for importer/exporter, negotiating and quoti 
 d solving complaints from customers. The 
petitioner has not provided evidence that it employe Him' at the time of filing, and his name does not 
appear on any wage or payroll documentation provided for 2006 or 2007. 
The petitioner indicated that its accounting employees incl 
 , the supervisor, and , an 
"accounting operation" employee. The petitioner stated that 
 for reviewing customers' 
credit lines, accounts receivable and payable, maintaining company cash flow, reporting to "manager," and 
liasing with banks and steamlinesiairlines. The record shows that- employed at the time of filing, 
but terminated in February 2008. As noted above, was on the petitioner's payroll employee list as of 
September 2007, but did not receive any payments fiom the petitioner in 2007. 
The director denied the petition on April 12, 2008, concluding that the petitioner failed to establish that the 
beneficiary will be employed in a primarily managerial or executive capacity. In denying the petition, the 
director observed that position descriptions provided for the beneficiary identified general managerial 
functions, but failed to specify exactly what the beneficiary would be doing within the context of the 
company's staffing arrangement. The director acknowledged the petitioner's claim that it employs 15 
workers, but found that the petitioner had not adequately documented whg was emu 
petition was filed, noting that two employees who were paid, 
on any employee list. 
 I 
,loved at the time the 
The director also raised questions as to whether the beneficiary's subordinates are employed in a full-time 
status, noting that many of them apparently received compensation commensurate with part-time employment 
in 2006.~ The director further determined that the petitioner failed to establish that the beneficiary manages 
any professional employees, or that the petitioner has sufficient staff to relieve the beneficiary from providing 
the goods and services of the business. 
On appeal, counsel for the petitioner asserts that the petitioner provided ample evidence to establish that the 
beneficiary will continue to be employed in a managerial or executive capacity. Counsel contends that the 
director disregarded evidence submitted in response to the RFE and erroneously based his decision on the 
petitioner's small staff size without giving due consideration to the beneficiary's duties. In an accompanying 
brief, counsel emphasizes that the instant petition is a request for an extension of the beneficiary's previously 
granted L-1A status. Counsel cites National Hand Tool Corp. v. Pasquarell, 889 F. 2d 1472, n.5 (5' Cir. 
1989) and Mars Jewelers, Inc. v. INS, 702 F. Supp. 1570, 1573 (N.D. Ga. 1988) to stand for the proposition 
that the statute was not intended to limit managers or executives to persons who supervise a large number of 
persons or a large enterprise. 
2 
 It appears that the director relied on the petitioner's 2006 Forms W-2 in determining the company's staffing 
structure, and emphasized that the petitioner failed to submit the requested IRS Forms 941 for 2007. As 
discussed above, the petitioner did provide documentation pertaining to its 2007 payroll in response to the 
RFE. It does not appear that the director reviewed this information. The evidence shows that all or most of 
the petitioner's eight employees were in fact employed on a full-time basis. 
' EAC 08 013 52907 
Page 9 
Counsel fiu-ther contends that a beneficiary need not supervise subordinates in order to qualify as a manager, 
but rather may qualify as a "functional manager." Counsel discusses the facts of several unpublished 
decisions in which the AAO found that a beneficiary who supervised few employees met the criteria for a 
functional manager. 
In support of the appeal, the petitioner provides a copy of its 2007 Form 1120, U.S. Corporation Income Tax 
Return, which shows that the petitioner had gross sales of $10.8 million, and paid salaries and wages of 
$257,225. The petitioner also submits a copy of its California Form DE-6, Quarterly Wage and Withholding 
Report and New York Form NYS-45, Quarterly Combined Withholding, Wage Reporting and Unemployment 
Insurance Return, for the first quarter of 2008. The quarterly reports show that the petitioner 
nd 
 in California, and six em lo ees in New York, including the beneficiary, 
and 
 who was terminated in February 2008. One additional 
employee was hired during the quarter. 
Upon review of the petition and supporting evidence, the petitioner has not established that the beneficiary 
will serve 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. 9 214.2(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 each have two basic 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 it appears that the beneficiary possesses the 
requisite level of authority as the senior employee in the U.S. company, the petitioner has failed to describe 
the beneficiary's actual duties in any detail, and thus has failed to demonstrate that the beneficiary performs 
primarily qualifying duties. 
The petitioner's initial description of the beneficiary's duties is general and nonspecific, offering little insight 
as to what the beneficiary actually does on a day-to-day basis as the general manager within the context of the 
petitioner's business. For example, the petitioner indicates that the beneficiary "formulates plans and 
programs," "directs financial and commercial policies and practices," "initiates programs concerning 
organizational and operational functions of the company," "directs major fiscal and physical planning 
activities such as development of budget and building expansion programs," "reviews activity reports and 
financial statements," "develops organizational policies to coordinate functions and operations between 
divisions and departments," "directs development of a strategic plan for the quality program and 
establishment and maintenance of all systems to support external certification of quality construction 
systems." While the petitioner has broadly utilized terms with managerial connotations such as "directs," 
"formulates," and "initiates" to convey the beneficiary's level of authority, the petitioner failed to identify the 
petitioner's plans, programs or policies, and it did not list the beneficiary's specific managerial or executive 
EAC 08 013 52907 
Page 10 
tasks. Conclusory assertions regarding the beneficiary's employment capacity are not sufficient. 
 Merely 
repeating the language of the statute or regulations does not satisfy the petitioner's burden of proof. Fedin 
Bros. Co., Ltd. v. Sava, 724 F. Supp. 1103, 1108 (E.D.N.Y. 1989), afd, 905 F. 2d 41 (2d. Cir. 1990); Avyr 
Associates, Inc. v. Meissner, 1997 WL 188942 at *5 (S.D.N.Y.). 
Furthermore, the position description included in counsel's letter dated October 9, 2007 refers to "building 
expansion" activities and implies that the petitioner develops "construction systems." Given that the petitioner 
is a freight forwarding company, it is reasonable to question whether the position description provides an 
accurate representation of the beneficiary's duties. 
The position description provided in response to the director's request for a "comprehensive" description of 
the beneficiary's duties did little to clarify the nature of the beneficiary's position. Portions of the position 
description simply paraphrased the statutory definitions of managerial and executive capacity, while other 
parts merely rephrased the initial position description. For example, the petitioner stated that the beneficiary 
would "perform essential executive functions . . . in business decision making, policy making and personnel 
management," formulate goals and policies, ensure compliance with regulations, and exercise wide latitude in 
discretionary decision making. 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. The AAO will not accept an ambiguous position description couched in 
broad managerial or executive terms and speculate as to the actual tasks the beneficiary performs. It is the 
petitioner's burden to clearly articulate the actual duties performed by the beneficiary within the context of 
the business and to establish that his duties are primarily managerial or executive in nature. 
Although the director specifically addressed the deficiencies in the record with respect to the beneficiary's 
position description, neither counsel nor the petitioner has attempted to clarify the beneficiary's duties on 
appeal. The lack of a detailed position description alone is sufficient to warrant the denial of this petition. 
The statutory definition of "managerial capacity" allows for both "personnel managers'' and "function 
managers." See section 101 (a)(44)(A)(i) and (ii) of the Act, 8 U.S.C. 8 1 101 (a)(44)(A)(i) and (ii). Personnel 
managers are required to primarily supervise and control the work of other supervisory, professional, or 
managerial employees. Contrary to the common understanding of the word "manager," the statute plainly 
states that 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 
10 1 (a)(44)(A)(iv) of the Act; 8 C.F.R. 3 2 14.2(1)(1)(ii)(B)(2). If a beneficiary directly supervises other 
employees, the beneficiary must also have the authority to hire and fire those employees, or recommend those 
actions, and take other personnel actions. 8 C.F.R. 3 214.2(1)(1)(ii)(B)(3). 
Here, the petitioner claims that the beneficiary will supervise and control a total staff of 15 employees, 
including a vice general manager, who, in turn, allegedly supervises five department managers or supervisors. 
The evidence of record does not corroborate the petitioner's claims that it employs 15 employees. The 
petitioner has documented the employment of only the beneficiary, the vice general manager, the ocean 
EAC 08 013 52907 
Page 11 
import/export manager, a trucking supervisor, an accounting supervisor, and three other employees 
and 
 whose job titles and duties have not been provided. More importantly, the 
petitioner has intentionally and consistently misrepresented that it continues to employ persons who were in 
fact terminated months prior to the filing of the petition, and others who were not, for whatever reason, 
receiving wages at the time of filing. A few errors or minor discrepancies are not reason to question the 
credibility of an alien or an employer seeking immigration benefits. See, e.g., Spencer Enterprises Inc. v. U.S., 
345 F.3d 683, 694 (9th Cir., 2003). However, anytime a petition includes numerous errors and discrepancies, 
and the petitioner fails to resolve those errors and discrepancies after CIS provides an opportunity to do so, 
those inconsistencies will raise serious concerns about the veracity of the petitioner's assertions. Doubt cast 
on any aspect of the petitioner's proof may undermine 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). In this 
case, the discrepancies and errors catalogued above lead the AAO to conclude that the evidence of the 
petitioner's staffing levels is not credible. Although the director referred to some discrepancies in the 
evidence pertaining to the petitioner's employees, counsel does not address this issue on appeal. 
The petitioner also failed to provide any explanation regarding its California-based activities, and has not 
documented that it actually maintains an office in California. Given that the beneficiary's only direct 
subordinate, the vice general manager, appears to be based in California with only one other employee, the 
petitioner's claim that she directly supervises employees in the New York office on a day-to-day basis is not 
persuasive. Given the actual staffing levels of the office in which the beneficiary is located, it is reasonable to 
conclude that the beneficiary is, at most, directly supervising five employees who are engaged in the day-to- 
day operations of the petitioner's ocean importlexport activities, air import/export activities, customs and 
bond activities, trucking activities, and accounting duties, rather than serving as managers or supervisors 
themselves. Furthermore, since the petitioner, based on the submitted organizational chart, claims that it 
actually requires 14 employees to cany out the day-to-day functions of its five departments, it is reasonable to 
question whether a staff of only five employees could plausibly relieve the beneficiary from primarily 
performing the day-to-day, non-managerial functions of the petitioner's business. 
An employee will not be considered to be a supervisor simply because of a job title, because he or she is 
arbitrarily placed on an organizational chart in a position superior to another employee, or even because he or 
she supervises daily work activities and assignments. Rather, the employee must be shown to possess some 
significant degree of control or authority over the employment of subordinates. Given the actual size and 
nature of the petitioner's business, it is more likely than not that the beneficiary and his proposed subordinate 
employees will all primarily perform the tasks necessary to the operation of the business. See generally 
Family, Inc. v. US. Citizenship and Immigration Services, 469 F.3d 1313 (9th Cir. 2006). Therefore, it 
appears that the beneficiary will be, at most, a first-line supervisor of non-professional employees. A 
managerial or executive employee must have authority over day-to-day operations beyond the level normally 
vested in a first-line supervisor. See 8 101(a)(44) of the Act; see also Matter of Church Scientology 
International, 19 I&N Dec. at 604. 
On appeal, counsel discusses at length a number of unpublished AAO decisions involving hction managers. 
Counsel does not, however, attempt to establish how the beneficiary in this matter qualifies as a function 
manager. The term "function manager" applies generally when a beneficiary does not supervise or control the 
EAC 08 01 3 52907 
Page 12 
work of a subordinate staff but instead is primarily responsible for managing an "essential function" within 
the organization. See section 101(a)(44)(A)(ii) of the Act, 8 U.S.C. 4 1 101(a)(44)(A)(ii). The term "essential 
function" is not defined by statute or regulation. If a petitioner claims that the beneficiary is managing an 
essential function, the petitioner must furnish a detailed job description that discusses the duties to be 
performed in managing the essential function, i.e. identify the function with specificity, articulate the essential 
nature of the function, and establish the proportion of the beneficiary's daily duties attributed to managing the 
essential function. See 8 C.F.R. 3 214.2(1)(3)(ii). In addition, the petitioner's description of the beneficiary's 
daily duties must demonstrate that the beneficiary manages the function rather than performs the duties 
related to the function. Here, the petitioner has failed to identify any essential function to be managed by the 
beneficiary, has failed to articulate his specific daily duties, and has failed to establish that the beneficiary will 
perform primarily managerial duties. 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 (Cornm. 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Cornm. 
1972)). 
Furthermore, it should be noted that counsel's reliance on unpublished decisions is not persuasive. First, 
counsel has furnished no evidence to establish that the facts of the instant petition are analogous to those in 
the unpublished decision. Second, and more importantly, while 8 C.F.R. 5 103.3(c) provides that AAO 
precedent decisions are binding on all CIS employees in the administration of the Act, unpublished decisions 
are not similarly binding. 
The statutory definition of the term "executive capacity'' focuses on a person's elevated position within a 
complex organizational hierarchy, including major components or functions of the organization, and that 
person's authority to direct the organization. Section 101(a)(44)(B) of the Act, 8 U.S.C. $ 1 101(a)(44)(B). 
Under the statute, a beneficiary must have the ability to "direct the management" and "establish the goals and 
policies" of that organization. Inherent to the definition, the organization must have a subordinate level of 
employees for the beneficiary to direct and the beneficiary must primarily focus on the broad goals and 
policies of the organization rather than the day-to-operations of the enterprise. An individual will not be 
deemed an executive under the statute simply because they have an executive title or because they "direct" the 
enterprise as the owner or sole managerial employee. The beneficiary must also exercise "wide latitude in 
discretionary decision making" and receive only "general supervision or direction from higher level 
executives, the board of directors, or stockholders of the organization." Id. Here, the petitioner's claim that 
the beneficiary will serve in an executive capacity is based on a job description that merely paraphrases the 
statutory definition at section 101(a)(44)(B) of the Act, and the beneficiary's placement at the top of an 
organizational chart that significantly misrepresents the company's actual staffing levels. Such evidence is of 
little or no probative value and is insufficient to establish that the beneficiary will be employed in an 
executive capacity. The fact that the beneficiary manages a business does not necessarily establish eligibility 
for classification as an intracompany transferee in an executive capacity within the meaning of sections 
101(a)(15)(L) of the Act. See 52 Fed. Reg. 5738,5739 (Feb. 26,1987). 
Counsel cites National Hand Tool Corp. v. Pasquarell, 889 F.2d 1472, n.5 (5th Cir. 1989), and Mars 
Jewelers, Inc. v. INS, 702 F.Supp. 1570, 1573 (N.D. Ga. 1988), to stand for the proposition that the small size 
of a petitioner will not, by itself, undermine a finding that a beneficiary will act in a primarily managerial or 
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executive capacity. First, the AAO notes that counsel has furnished no evidence to establish that the facts of 
the instant petition are analogous to those in National Hand Tool Corp., where the Fifth Circuit Court of 
Appeals decided in favor of the legacy Immigration and Naturalization Service (INS), or Mars Jewelers, Inc., 
where the district court found in favor of the plaintiff. With respect to Mars Jewelers, the AAO is not bound 
to follow the published decision of a United States district court in matters arising within the same district. 
See Matter of K-S-, 20 I&N Dec. 715 (BIA 1993). Although the reasoning underlying a district judge's 
decision will be given due consideration when it is properly before the AAO, the analysis does not have to be 
followed as a matter of law. Id. at 719. 
In both National Hand Tool Corp. and Mars Jewelers, Inc., the courts emphasized that the former INS should 
not place undue emphasis on the size of a petitioner's business operations in its review of an alien's claimed 
managerial or executive capacity. The AAO has long interpreted the regulations and statute to prohibit 
discrimination against small or medium-size businesses. However, consistent with both the statute and the 
holding of National Hand Tool Corp., the AAO has required the petitioner to establish that the beneficiary's 
position consists of primarily managerial or executive duties and that the petitioner will have sufficient 
personnel to relieve the beneficiary from primarily performing operational andlor administrative tasks. Like 
the court in National Hand Tool Corp., we emphasize that our holding is based on the conclusion that the 
beneficiary is not primarily performing managerial duties; our decision does not rest on the size of the 
petitioning entity. 889 F.2d at 1472, n.5. 
A company's size alone, without taking into account the reasonable needs of the organization, may not be the 
determining factor in approving a visa for a multinational manager or executive. See 5 101(a)(44)(C) of the 
Act, 8 U.S.C. 5 1101(a)(44)(C). However, in reviewing the relevance of the number of employees a 
petitioner has, federal courts have generally agreed that Citizenship and Immigration Services (CIS) "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 (9~ Cir. 2006) (citing with approval Republic of Transkei v. INS, 923 F 2d. 175, 178 (D.C. Cir. 1991); 
Fedin Bros. Co. v. Suva, 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 CIS 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, 153 F. Supp. 2d 7, 15 (D.D.C. 2001). The size of a company may be especially relevant when CIS notes 
discrepancies in the record and fails to believe that the facts asserted are true. Id. As discussed, the petitioner 
represents itself as a 15 or 16-person company with a hierarchy of departments and middle managers 
operating at a single location in New York, when in fact, it appears to employ six employees in New York 
and two employees in California. Under these circumstances, the actual size of the company is especially 
relevant. 
In sum, while the beneficiary may exercise discretion over the day-to-day functions of the U.S. company, the 
petitioner has not established that managerial or executive duties will constitute his primary tasks, or that he 
will supervise a staff sufficient to relieve him from performing the day-to-day functions of the petitioner's 
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business. Accordingly, the petitioner has not established that the beneficiary will be employed in a primarily 
managerial or executive capacity under the extended petition. Accordingly, the appeal will be dismissed. 
The AAO acknowledges counsel's assertion on appeal that the director failed to consider that this matter 
involved the extension of a previously approved petition. The prior approval does not preclude CIS from 
denying an extension of the original visa based on reassessment of petitioner's qualifications. Texas A&M 
Univ. v. Upchurch, 99 Fed. Appx. 556,2004 WL 1240482 (5th Cir. 2004). 
It must be emphasized that each petition filing is a separate proceeding with a separate record. See 8 C.F.R. 5 
103.8(d). In making a determination of statutory eligibility, CIS is limited to the information contained in that 
individual record of proceeding. See 8 C.F.R. 5 103.2(b)(16)(ii). If the previous nonimmigrant petition was 
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 
(Cornm. 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). Based on the lack of required evidence of eligibility in the current record, the AAO finds 
that the director was justified in departing from the previous petition approval by denying the instant petition. 
Furthermore, the AAO's authority over the service centers is comparable to the relationship between a court 
of appeals and a district court. Even if a service center director had approved the nonimmigrant petitions on 
behalf of the beneficiary, the AAO would not be bound to follow the contradictory decision of a service 
center. Louisiana Philharmonic Orchestra v. INS, 2000 WL 282785 (E.D. La.), afd, 248 F.3d 1139 (5th Cir. 
2001), cert. denied, 122 S.Ct. 5 1 (2001). 
Beyond the decision of the director, the AAO notes a discrepancy in the record with respect to the petitioner's 
claimed qualifying relationship with the beneficiary's foreign employer. The petitioner claims to be a wholly- 
owned subsidiary of the foreign entity. However, the petitioner's 2006 and 2007 IRS Forms 1120, U.S. 
Corporate Income Tax Return, indicate at Schedule K that no one foreign person or corporation owns at least 
25% of the company's stock, and there is no documentary evidence of the petitioner's ownership in the 
record, such as copies of its stock certificates or stock transfer ledger. The record also contains the foreign 
entity's detailed 2006 consolidated financial statements, which includes a list of its subsidiaries. The 
petitioner is not listed among the subsidiaries. Consequently, it cannot be concluded that the petitioner 
maintains a qualifying relationship with the foreign entity as required by 8 C.F.R. 5 214.2(1)(3)(i). For this 
additional reason, the petition cannot be approved. 
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). The AAO maintains plenary power to review each appeal on a de novo basis. 5 U.S.C. 
557(b) ("On appeal from or review of the initial decision, the agency has all the powers which it would have 
in making the initial decision except as it may limit the issues on notice or by rule."); see also, Janka v. US. 
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Dept. of Transp., NTSB, 925 F.2d 1147, 1149 (9th Cir. 1991). The AAO's de novo authority has been long 
recognized by the federal courts. See, e.g. Dor v. INS, 891 F.2d 997, 1002 n. 9 (2d Cir. 1989). 
The petition will be denied and the appeal dismissed for the above stated reasons, with each considered as an 
independent and alternative basis for the decision When the AAO denies a petition on multiple alternative 
grounds, a plaintiff can succeed on a challenge only if she shows that the AAO abused it discretion with 
respect to all of the AAO's enumerated grounds. See Spencer Enterprises, Inc. v. United States, 229 F. Supp. 
2d at 1043. 
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, the petitioner has not met that burden. 
ORDER: The appeal is dismissed.