dismissed L-1A Case: Machinery Service

&- identifying dsta deleted to 
prevent cieaily -~hhwarranted 
invasion of pemna1 privacy 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Oflce of Administrative Appeals, MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
File: EAC 07 254 5 1720 Office: VERMONT SERVICE CENTER Date: MAR 1 2 2010 
Petition: Petition for a Nonimmigrant Worker Pursuant to Section 10 1 (a)(15)(L) of the Immigration 
and Nationality Act, 8 U.S.C. 1 10 1(a)(15)(L) 
ON BEHALF OF PETITIONER: SELF-REPRESENTED 
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. 
If you believe the law was inappropriately applied or you have additional information that you wish to have 
considered, you may file a motion to reconsider or a motion to reopen. Please refer to 8 C.F.R. $ 103.5 for the 
specific requirements. All motions must be submitted to the office that originally decided your case by filing a 
Form I-290B, Notice of Appeal or Motion, with a fee of $585. Any motion must be filed within 30 days of the 
decision that the motion seeks to reconsider, as required by 8 C.F.R. 5 103.5(a)(l)(i). 
V Peny Rhew 
Chief, Administrative Appeals Office 
EAC 07 254 5 1720 
Page 2 
DISCUSSION: The Director, Vermont Service Center, denied the nonimmigrant visa petition. 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 employ the beneficiary 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. fj 1 lOl(a)(lS)(L). The petitioner, a Delaware corporation, is engaged in the repair and service of pulp 
and paper equipment and machinery. It claims to be a subsidiary of ., located 
in Canada. The petitioner states that the beneficiary has been employed by the U.S. company and related 
entities in L-1A status on an intermittent basis since 2001. The petitioner seeks to employ the beneficiary for 
two additional years in the position of field service manager.' 
The director denied the petition, concluding that the petitioner failed to establish: (1) that the beneficiary 
would be employed in a primarily managerial or executive capacity in the United States; or (2) that the 
beneficiary has been employed by the foreign entity 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, the petitioner asserts that the beneficiary performs 
both managerial and executive duties, supervises managerial and professional personnel, and is not engaged 
in the day-to-day work of the business. The petitioner submits a brief and additional 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 101(a)(15)(L) of the Act. Specifically, a qualifying organization must have employed the 
beneficiary in a qualifying managerial or executive capacity, or in a specialized knowledge capacity, for one 
continuous year within three years preceding the beneficiary's application for admission into the United 
States. In addition, the beneficiary must seek to enter the United States temporarily to continue rendering his 
or her services to the same employer or a subsidiary or affiliate thereof in a managerial, executive, or 
specialized knowledge capacity. 
The regulation at 8 C.F.R. 5 214.2(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. 
' The petitioner initially stated on Form 1-129 that the beneficiary has been offered the position of Senior 
Field Service Supervisor, and later submitted an amended petition indicating that the correct position title is 
Field Service Manager. The petitioner has submitted sufficient evidence to demonstrate that the latter is the 
beneficiary's actual job title. 
EAC 07 254 5 1720 
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 himlher 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 issue in this matter is whether the petitioner established that the beneficiary has been and will be 
employed in a primarily managerial capacity. The petitioner indicates that the beneficiary holds the same 
position with the same duties in the United States and Canada and divides his time between the foreign and 
U.S. entities. As such, the following discussion will encompass both the beneficiary's foreign and U.S. 
employment capacity. The petitioner does not claim that the beneficiary has been or will be employed in an 
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. 
The petitioner filed Form 1-129, Petition for a Nonimmigrant Worker, on September 6, 2007. In a letter dated 
July 27, 2007, the petitioner stated that the beneficiary has been and will be employed in the position of field 
service manager, dividing his time between the United States and Canada, and performing the following 
duties: 
EAC 07 254 5 1720 
Page 4 
He will be responsible for the direction, supervision and coordination of the technical service 
group. He will direct and supervise the planning of the erection of new machinery and 
equipment through his staff. He will direct the service and repair of installed equipment 
department. He will also coordinate with engineering (internal and external), manufacturing, 
shipping and delivery, inspection, erection, start-up and other related activities. [The 
beneficiary] will perform project management functions as assigned by the Vice President, 
General Manager or otherwise associated with the responsibility. 
He will, in this position, oversee the technical service group in the installation andlor 
maintenance of our highly complex and technical products at our clients' locations. More 
specifically, he will oversee Field Service Engineers, who in turn oversee on site employees. 
He will supervise others including intermediate supervisory personnel as they verify 
alignment, timing and heat bearing. He will further be required to interpret and utilize 
technical drawings and blueprints to accomplish his assignments. 
[The beneficiary] will be required to develop, coordinate and implement the required 
educational programs to train the various employees in the active and planning stages. He 
will consult with the department originators and approve training procedures (and 
documentation) from functional areas to ensure effective utilization of training methods and 
subject coverage. 
He will review and appraise the work performance of his department personnel, either 
directly or through subordinate Managers and Supervisors, and implement action for 
improvement. He will review and approve of employee performance appraisals, promotions, 
merit increases and other personnel related matters. 
On November 14, 2007, the director issued a request for additional evidence (RFE) in which he requested, 
inter alia, additional evidence to establish that the beneficiary has been and will be employed in a primarily 
managerial or executive capacity. Specifically, the director requested: (1) an organizational chart for the 
United States entity and complete position descriptions for all U.S. employees; and (2) additional information 
regarding the management and personnel structure of both the foreign and U.S. companies, including the 
number of subordinate supervisors under the beneficiary's management, their job titles and job duties, the 
amount of time the beneficiary allots to managerial/executive duties, and the degree of discretionary authority 
the beneficiary has over day-to-day operations in the United States and Canada. 
In a letter dated January 30, 2008, the petitioner indicated that the beneficiary has been performing the same 
duties in the United States and Canada, although he spends more time training workers while in the United 
States. The petitioner indicated that the beneficiary's role of field service manager involves the following: 
[The beneficiary's] responsibilities range from working directly with the customer to working 
with engineers, supervisors, foremen and workers under his supervision in order to complete 
a particular task or contract. He will spend time training individuals on correct repair and 
EAC 07 254 5 1720 
Page 5 
trouble shooting methods. In doing this he will also be evaluating individuals performance, 
attitude and aptitude relative to the job being asked of them. 
The petitioner stated that the beneficiary may supervise between two and six subordinate supervisors while 
fulfilling a customer contract, depending on the size of the job and the work location. Specifically, the 
petitioner indicated that the beneficiary's subordinates may include a shift foreman, field service supervisor, 
lead welder, lead millwright, and specialty machinists, any of which may lead a small work crew. The 
petitioner further stated that the beneficiary spends nearly 100 percent of his time on "managerial/technical 
duties" because he is responsible for the financial success of a job, as well as customer satisfaction. Finally, 
the petitioner indicated that the beneficiary has extensive authority over day-to-day operations, including the 
authority to "determine the correct course of action from both a technical point of view as well as from a 
manpower position." 
In addition, the petitioner provided a separate job description for the field services manager position, which 
lists the following duties: 
Plans, prepares and coordinates, in collaboration with the Sales and Engineering Teams, the 
equipment installations and start-up of either new o[r] rebuilt equipment. 
Analyzes and solves operational and maintenance problems experienced by the . . . customer 
with their equipment. 
Plans, prepares and coordinates repairs, maintenance and equipment modification projects, 
assigned to him or is a part of. 
Provides technical assistance to [company] customers when planning major shutdowns for 
preventative maintenance purposes. 
Participates with the inspections of the defective equipment and provides an analysis of 
malfunctions leading to the breakdown. 
Selects and supervises a skilled team of welder-assemblers and laborers participating in the 
activities previously mentioned. 
Selects, inspects and prepares all necessary materials to enable the execution of the activities 
listed above. If necessary, load and prepare the mobilized units necessary for the execution of 
the previously mentioned activities. 
Provides a detailed report of his activities and those of the service team under his supervision, 
if necessary, at the end of each assignment. This report must be complete with financial 
(personal expenses, equipment purchases, hours worked) and technical aspects (inspection 
results, analysis of malfunctions, recommendations, required parts, problems relevant to 
design or manufacturing) according to the procedures and forms provided by Field Service 
Administration. 
Cleans, maintains, rectifies and takes inventory of material resources belonging to the Field 
Service Group. 
Actively participates in the improvements of procedures, of human and material resources 
and operational standards of the Field Service Group by means of realistic suggestions and 
concrete actions from past experiences or development opportunities. 
EAC 07 254 5 1720 
Page 6 
Performs other duties useful to the accomplishments of the functions previously mentioned, 
in such a way is considered necessary to the proper function of the Field Service Group by 
the Director of Services. 
According to the petitioner's description, the position requires three years of experience as an assembler, 
machinist or millwright involving industrial equipment, and previous field service experience. The petitioner 
submitted as supporting evidence a copy of a Field Service Report prepared by the beneficiary upon 
completion of a customer installation, repair and start-up project for a Minnesota-based customer in 2007. The 
beneficiary is identified in the report as a "service representative." 
Finally, the petitioner submitted an organizational chart for the U.S. company. The chart indicates that the 
beneficiary reports to a contract administrator and supervises the foreign entity's "resource pool." Other 
employees of the U.S. company are depicted as a project manager, and "US 3rd party manpower" including 
subcontractors hired from three U.S. companies, as well as individual direct hires. 
The director denied the petition on March 13, 2008, concluding that the petitioner failed to establish that the 
beneficiary has been or would be employed in a primarily managerial or executive capacity. The director 
observed that the beneficiary has been acting in a leadership role, but no evidence was provided to establish 
that the beneficiary has the authority to hire and fire personnel or recommend these and other personnel 
actions, or to establish that he will function at a senior level within an organizational hierarchy. The director 
found that, even though requested, the petitioner submitted nothing to show the company's management 
structure, the types of individuals it employs, their functions, or other evidence to put into perspective the 
employees who work under the beneficiary's supervision. 
On appeal, the petitioner asserts that, due to the nature of the petitioner's business, most of the company's 
work takes place at customer locations, and, as such "the Field Manager's opinion on all aspects of a job from 
safety, work conditions, time allotment to manpower" is relied upon and "generally rules the day." The 
petitioner emphasizes the service manager position is one of only three positions that reports to the owners of 
the company. The petitioner further states: 
The hiring and firing of employees although not solely the responsibility of [the beneficiary] 
is one of the significant functions he does perform. He is responsible for the success of the 
assignments he is given including financial and customer satisfaction. In order for this to 
cany weight he must be able to hirelfire as required. 
When we are using 3'* party manpower, [the beneficiary] in his managerial position 
determines just what manpower we will need and once we have used them he will determine 
whether we use them again on the next job. If for some reason they do not or cannot perform 
the tasks required of them then it is up to [the beneficiary] to provide corrective action 
including dismissal of the individual involved as required. Employee dismissal from a job site 
is certainly an option that rests solely with [the beneficiary]. 
EAC 07 254 5 1720 
Page 7 
The petitioner submits a new organizational chart which depicts the beneficiary's positions in Canada and the 
United States. In the United States, the beneficiary supervises unidentified foremen, millwrights, welders, 
machinists who are employed by JLM Services, Versa Corp., and O'Meara Services as well as a portion of the 
Canadian entity's "resource pool." In Canada, the beneficiary supervises the same types of workers who are 
directly employed by Canadian firms. 
Upon review, the petitioner has not established that the beneficiary has been or will be employed in a primarily 
managerial capacity. 
When examining the proposed executive or managerial capacity of the beneficiary, the AAO will look first to 
the petitioner's description of the proposed job duties. See 8 C.F.R. tj 214.2(1)(3)(ii). The petitioner's 
description of the job duties must clearly describe the duties that will be performed by the beneficiary and 
indicate whether such duties will be either in an executive or managerial capacity. Id. The AAO will then 
consider this information in light of the petitioner's organizational structure, the duties of the beneficiary's 
subordinate employees, the presence of other employees to relieve the beneficiary from performing 
operational duties, the nature of the petitioner's business, and any other factors that will contribute to a 
complete understanding of a beneficiary's actual duties and role in a business. 
Here, the petitioner initially stated that the beneficiary is and will continue to be responsible to direct, 
supervise and coordinate the technical services group; "direct and supervise" the planning of equipment 
installations through subordinate staff; "direct the service and repair of installed equipment"; "develop, 
coordinate and implement" training programs; "perform project management functions"; oversee Field 
Service Engineers who, in turn, oversee onsite employees; and review and appraise the work performance of 
department personnel through subordinate managers and supervisors. These general responsibilities suggest 
that the beneficiary has at least a supervisory level of authority within the technical services function, but the 
description was lacking in specificity with respect to the beneficiary's actual day-to-day duties. 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. Suva, 724 F. Supp. 1103 (E.D.N.Y. 1989), afd, 905 F.2d 41 (2d. Cir. 1990). In addition, the 
petitioner's initial submission did not contain evidence to corroborate the existence of the "technical services 
group," field service engineers, managers or supervisory personnel claimed to be supervised by the 
beneficiary in the United States and Canada. Going on record without supporting documentary evidence is not 
sufficient for purposes of meeting the burden of proof in these proceedings. Matter of Soflci, 22 I&N Dec. 
158, 165 (Comm. 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm. 
1972)). 
In response to the director's request for a complete description of the beneficiary's duties and the amount of 
time he allocates to managerial and non-managerial duties, the petitioner largely restated the initial job 
description and provided little additional explanation as to what the beneficiary primarily does on a day-to- 
day basis. The petitioner reiterated that the beneficiary manages supervisory employees such as foremen, field 
service supervisors, lead welders, lead millwrights and specialty machinists, has authority to evaluate their 
performance, and has authority for determining the correct course of action on assigned projects from both a 
technical point of view and from a manpower position. The petitioner stated that the beneficiary would 
EAC 07 254 5 1720 
Page 8 
devote nearly 100% of his time to "managerial/technical duties" but failed to specify in its letter which duties 
it considers "managerial," which duties it considers "technical" and how the beneficiary's time is divided 
between the two categories. Any failure to submit requested evidence that precludes a material line of inquiry 
shall be grounds for denying the petition. 8 C.F.R. 5 103.2(b)(14). 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 only detailed description of the beneficiary's position is the separate position description submitted in 
response to the RFE, which appears to be the formal company job description for the position. While the 
formal description indicates that the position is responsible to plan, prepare, coordinate and supervise 
equipment installations, troubleshooting and inspections, the AAO notes that the description also includes 
numerous technical duties which do not fall under the statutory definition of managerial capacity, and which 
were conspicuously absent from the position descriptions contained in the petitioner's letters. For example, the 
petitioner's formal job description indicates that its service managers: analyze and solve operational and 
maintenance problems experienced by customers; provide technical assistance to customers; participate in 
inspections of defective equipment and provide analysis of malfunctions; select and prepare materials for 
projects; load and prepare "mobilized units"; and clean, maintain, rectify and take inventory of material 
resources. Thus, it appears that the beneficiary is also responsible for performing numerous non-qualifying 
duties, including directly providing the petitioner's services to customers. 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 'l., 19 I&N Dec. 593, 604 (Comm. 1988). 
Based on the current record, the AAO is unable to determine whether the claimed managerial duties constitute 
the majority of the beneficiary's duties, or whether the beneficiary primarily performs non-managerial 
administrative or operational duties. Although specifically requested by the director, the petitioner's 
description of the beneficiary's job duties does not establish what proportion of the beneficiary's duties is 
managerial in nature, and what proportion is actually non-managerial. See Republic of Transkei v. INS, 923 
F.2d 175, 177 (D.C. Cir. 1991). Again, the petitioner's statement that the beneficiary devotes nearly 100 
percent of his time to "managerial/technical duties," was non-responsive to the petitioner's request for a clear 
indication as to how the beneficiary's time is divided between qualifying and non-qualifying tasks. 
As noted above, when examining the managerial or executive capacity of a beneficiary, U.S. Citizenship and 
Immigration Services (USCIS) reviews the totality of the record, including descriptions of a beneficiary's 
duties and those of his or her subordinate employees, the nature of the petitioner's business, and any other 
facts contributing to a complete understanding of a beneficiary's actual role in a business. Here, the petitioner 
claims that the beneficiary serves in a managerial capacity based on his supervision of subordinate staff and 
his authority to exercise discretion over the company's day-to-day field service operations. 
EAC 07 254 5 1720 
Page 9 
The statutory definition of "managerial capacity" allows for both "personnel managers" and "function 
managers." See section 10 1 (a)(44)(A)(i) and (ii) of the Act, 8 U.S.C. 5 1 10 1 (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. 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. $ 214.2(1)(1)(ii)(B)(3). 
Here, the petitioner has submitted conflicting statements regarding the types of employees the beneficiary 
supervises and his level of authority with respect to personnel actions. The petitioner stated in its initial letter 
that the beneficiary oversees Field Service Engineers, who in turn oversee on-site employees. The petitioner 
further stated that the beneficiary reviews and appraises department personnel through subordinate managers 
and supervisors, with responsibility for reviewing and approving performance appraisals, promotions and 
other personnel matters. 
In response to the RFE, the petitioner referred to "engineers, supervisors, foremen and workers" working 
under the beneficiary's supervision, but failed to provide the complete job descriptions requested by the 
director. The petitioner noted that the positions the beneficiary supervises on a particular assignment may 
include a shift foreman, field service supervisor, lead welder, lead millwright or specialty machinist, all of 
which may supervise a small crew of their own. However, the initial organizational chart provided by the 
petitioner showed that the beneficiary supervises an unidentified "resource pool," with no indication as to the 
actual positions he supervises and no apparent subordinate supervisors working under his supervision. 
Therefore, the director correctly determined that the petitioner failed to establish that the beneficiary has been 
and would be directing and controlling a subordinate staff of supervisors, managers or professionals. 
Furthermore, the petitioner's standard position description for the field service manager position indicates that 
the position "supervises a skilled team of welder-assemblers and laborers." There is no reference to 
subordinate supervisors or engineers. In addition, while the description indicates that the service manager 
position "participates in the improvements of procedures of human and material resources and operational 
standards of the Field Service Group by means of making realistic suggestions," there is nothing in the 
description to suggest that the beneficiary is responsible for making hiring and firing decisions or 
recommending these and other personnel actions. 
Finally, on appeal, the petitioner states for the first time that hiring and firing employees is one of the 
functions the beneficiary performs, and notes that the beneficiary is able to dismiss third-party manpower 
from a job site. The petitioner submits a new organizational chart indicating once again that the beneficiary 
supervises the petitioner's "resource pool" and foremen, millwrights, welders, machinists provided by 
contractors. The petitioner still has not clearly indicated whether the beneficiary supervises any direct 
employees of the petitioning organization, nor submitted documentation to corroborate any of its conflicting 
claims. There are no engineers or field service supervisors listed on either organizational chart, although the 
petitioner indicates that the beneficiary supervises such employees. While the AAO does not doubt that the 
EAC 07 254 5 1720 
Page 10 
petitioner relies on third-party contractors for manpower, the evidence of record is insufficient to establish the 
extent of the beneficiary's supervisory authority over such workers. An employee will not be considered to be 
a supervisor simply because of a job title or because he or she supervises daily work activities and 
assignments. In order to be a supervisor, the employee must be shown to possess some significant degree of 
control or authority over the employment of a subordinate. See generally Browne v. Signal Mountain Nursery, 
L.P., 286 F.Supp.2d 904,907 (E.D. Tenn. 2003) (Cited in Hayes v. Laroy Thomas, Inc., 2007 WL 128287 at 
* 16 (E.D. Tex. Jan. 1 1,2007)). 
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). 
Overall, the petitioner has not established that the beneficiary has been or will be more than 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 10 1 (a)(44) of the Act; 
see also Matter of Church Scientology International, 19 I&N Dec. at 604. Therefore, the petitioner has not 
established that the beneficiary qualifies for the benefit sought as a personnel manager. 
The term "function manager" applies generally when a beneficiary does not supervise or control the work of a 
subordinate staff but instead is primarily responsible for managing an "essential function" within the 
organization. See section 10 1 (a)(44)(A)(ii) of the Act, 8 U.S.C. § 1 10 1(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 position description that clearly describes 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. 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 not clearly articulated a claim that the beneficiary manages an 
essential function of the petitioning organization. As discussed above, the petitioner has not provided a 
detailed description of the beneficiary's duties sufficient to establish that the beneficiary performs primarily 
managerial duties. This evidence is critical, as the evidence submitted indicates that the beneficiary is directly 
involved in providing the services of the company in addition to any supervisory or managerial functions he 
may hold. The actual duties themselves reveal the true nature of the employment. Fedin Bros. Co., Ltd. v. 
Sava, 724 F. Supp. at 1108. The beneficiary may have the ability to assign workers and make technical 
decisions regarding specific customer installation or repair projects, but the petitioner has not established that 
his role rises to the level of a function manager. 
In sum, the petitioner's failure to clearly identify the amount of time the beneficiary devotes to qualifying 
versus non-qualifying duties, and its failure to provide a consistent and corroborated account of his 
supervisory and personnel management duties, prohibits a determination that the beneficiary has been 
employed in Canada, and would be employed in the United States, in a primarily managerial or executive 
capacity. 
EAC 07 254 5 1720 
Page 11 
The AAO acknowledges that USCIS previously approved one or more L-1A nonimmigrant petitions filed on 
behalf of the beneficiary. The prior approval does not preclude USCIS from denying an extension of the 
original visa based on reassessment of the petitioner's qualifications. Texas A&M Univ. v. Upchurch, 99 Fed. 
Appx. 556, 2004 WL 1240482 (5th Cir. 2004). Each nonimmigrant petition filing is a separate proceeding 
with a separate record of proceeding and a separate burden of proof. See 8 C.F.R. 5 103.8(d). In making a 
determination of statutory eligibility, USCIS is limited to the information contained in that individual record 
of proceeding. See 8 C.F.R. 5 103.2(b)(16)(ii). Despite any number of previously approved petitions, USCIS 
does not have any authority to confer an immigration benefit when the petitioner fails to meet its burden of 
proof in a subsequent petition. See section 291 of the Act. 
If other nonimmigrant petitions were approved based on the same unsupported assertions that are contained in 
the current record, the approvals would constitute material and gross error on the part of the director. Neither 
the director nor 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). 
The petition will be denied and the appeal will be dismissed for the above stated reasons, with each 
considered as an independent and alternative basis for the decision. 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. 5 136 1. Here, that burden has not been met. 
ORDER: The appeal is dismissed.