dismissed L-1A Case: Manufacturing

U.S. Department of Homeland Security 
20 Mass, Rm. A3042.425 1 Street. N.W. 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
File: WAC-02-057-5 1785 Office: CALIFORNIA SERVICE CENTER Date: APR 3 1 2005 
Petition: Petition for a Nonimmigrant Worker Pursuant to Section 101 (a)(15)(L) of the Immigration 
and Nationality Act, 8 U.S.C. fj 1 lOl(a)(l5)(L) 
IN 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 ofice. 
obert P. Wiemann, Director 
dministrative Appeals Office 
WAC-02-057-5 1785 
Page 2 
DISCUSSION: The Director, California Service Center, denied the petition for a nonimmigrant visa. 1 
matter is now before the Administrative Appeals O%ce (AAO) on appeal. The AAO will dismiss the appe; 
The petitioner filed this nonimmigrant petition seeking to employ its Chief Executive Officer (CEO) as an 
1A nonimmigrant intracompany transferee pursuant to section 101(a)(15)(L) of the Immigration ; 
Nationality Act (the Act), 8 U.S.C. $ 1101(a)(15)(L). The petitioner is a Limited Liability Comp' 
organized in the State of New Jersey that is en a ed in the manufacture and sale of sports bags. 
' 
petitioner claims that it is the subsidiary of located in Seoul, Korea. The petitioner seek 
change the beneficiary's status from B-l to L-I A, and employ him for a two-year period. 
The director denied the petition concluding that the petitioner did not establish that the beneficiary has I: 
employed abroad in a primarily managerial or executive capacity. 
The petitioner subsequently filed an appeal. The director declined to treat the appeal as a motion 
forwarded the appeal to the AAO for review. On appeal, counsel for the petitioner asserts that the re 
contains sufficient evidence to show that the beneficiary has been employed abroad in a primarily manag 
capacity. In support of this assertion, counsel submits a brief and additional evidence. r 6 
To establish eligibility for the L-1 nonimmigrant visa classification, the petitioner must meet the cri 
outlined in section 101(a)(15)(L) of the Act. Specifically, a qualifying organization must have employec 
beneficiary in a qualifying managerial or executive capacity, or in a specialized knowledge capacity, fol 
continuous year within three years preceding the beneficiary's application for admission into the U 
States. In addition, the beneficiary must seek to enter the United States temporarily to continue renderin 
or her services to the same employer or a subsidiary or affiliate thereof in a managerial, executiv 
specialized knowledge capacity. 
The regulation at 8 C.F.R. 3 214.2(1)(3) states that an individual petition filed on Form 1-129 she 
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 desc;iption 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 himlher' to perform the intended 
WAC-02-057-5 1785 
Page 3 
services in the United States; however, the work in the United States need not be the 
same work which the alien performed abroad. 
The primary issue in the present matter is whether the beneficiary has been employed abroad in a primz 
managerial or executive capacity. 
Section 10 1 (a)(44)(A) of the Act, 8 U.S.C. 5 1 101 (a)(44)(A), defines the term "managerial capacity" a! 
assignment within an organization in which the employee primarily: , 
(i) manages the organization, or a department, subdivision, function, or component of 
the organization; 
(ii) supervises and controls the work of other supervisory, professional, or managerial 
employees, or manages an essential function within the organization, or a department 
or subdivision of the organization; 
(iii) if another employee or other employees are directly supervised, has the authority to 
hire and fire or recommend those as well as other personnel actions (such as 
promotion and leave authorization), or if no other employee is directly supervised, 
functions at a senior level within the organizational hierarchy or with respect to the 
function managed; and 
(iv) exercises discretion over the day to day operations of the activity or function for 
which the employee has authority. A first line supervisor is not considered to be 
acting in a managerial capacity merely by virtue of the supervisor's supervisory 
duties unless the employees supervised are professional. 
Section 101(a)(44)(B) of the Act, 8 U.S.C. $ 1101(a)(44)(B), defines the term "executive capacity" a! 
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. 
With the initial petition filed on December 4, 2001, the petitioner provided a support letter that described 
beneficiary's job duties abroad as follows: 
WAC-02-057-5 1785 
Page 4 
[The beneficiary] has been employed by [the foreign entity] with the position of member of 
the board of directors and Manager of various divisions of [the foreign entity] since 1988. . . . 
[The beneficiary] also served as director of the Sales Department where his obligations 
included cultivating new markets in the United States, China and Australian markets; he also 
managed the manufacturing division of the company; he also directed the exporting of the 
products sold abroad; as an industrial engineer he also has been involved in developing and 
designing new products for the company; and he has participated in product exhibitions 
abroad. 
In a separate letter from the foreign entity, the President stated that "[the beneficiary] knows throughout 
business of our company because he has worked for our company since 1988. . . . [HJe has been in chargt 
the design division in [the foreign entity]." The petitioner submitted a third document that outlines 
beneficiary's career, including a list of his activities with the foreign entity that provides the following: 
Having served in [the foreign entity] from 1988. 
Director in charge of Sales Department 
Cultivating new markets - American, Chinese, and Australian Markets. 
Managing manufacturing products in Korea 
Sales directing - Exporting to Japan, America, and Australia. 
Designing and developing new items and models for bags. 
Participating [in] product exhibitions abroad. 
j; 4 On January 9, 2002, the director requested additional evidence. In part, the director requested evidence 
establish that the beneficiary has the requisite one year of contjnuous employment abroad in a primar 
managerial or executive capacity within the three years preceding the time of filing the present petitic 
Specifically, the director requested the foreign entity's payroll rkords pertaining to the beneficiary for 1 
year preceding the filing of the petition. The dimtor instructed tfe petitioner to specify when the benefici; 
was hired, the positions that he held, and why the beneficiary was selected for the position with the petitiont 
In a response dated March 25, 2002, the petitioner submitted: (1) a letter discussing the beneficiary's dut, 
abroad and his qualifications for his proposed job in the United States; and (2) a letter discussing t 
organization of the foreign entity. The petitioner did not provide the foreign entity's payroll recor 
regarding the beneficiary. The letter regarding the beneficiary's duties abroad stated: 
[The beneficiary] has been employed [with the foreign entity] since 1988. Currently he holds 
the position of director and owns 1 1.50% of our stock. His duties as a director are to manage 
the Sales Department. . . . [H]e has experience working in all of our departments [at the 
foreign entity]. Currently, he is managing the Sales Department. In this position he 
cultivates and develops new markets for the sale of our products. He has been instrumental in 
opening new markets for us in the United States, China, Australia and Europe. . . . Moreover, 
he has managed the manufacturing of our products. With his Bachelor's Degree in Industrial 
Engineering he has directly assisted our design team in designing new products. Further, in 
this department he has implemented and managed quality control systems. Likewise, he was 
WAC-02-057-5 1785 
Page 5 
the designer of our newest designs, the Skateboard Backpacks which he designed and we 
manufactured after he had performed market research in Extreme Sports in the United States. 
. . . [H]e has represented our company in many conventions where he marketed our products 
throughout the world. 
The letter discussing the .organization of the foreign entity provides: 
Our Korean company has various departments including Trade, Design, Material, and 
Accounting. There are 13 employees working out of this office. The management team at 
the Seoul office is composed of d Jeongae Park. Our Chinese subsidiary 
company which is managed by Changil Yang has 400 employees. 
On May 2, 2002, the director denied the petition. The director determined that the petitioner did not establ 
that the beneficiary has been employed abroad in a primarily managerial or executive capacity. Specifical 
the director stated that: 
The petitioner has provided no comprehensive description of the beneficiary's daily activities 
that shows that the beneficiary is primarily engaged in managing or directing the management 
of a function, department, subdivision, or component of the company. . . . The beneficiary is 
not at a senior level within an organizational hierarchy. The petitioner has not established 
that the beneficiary is managing a subordinate staff of professional, managerial, or 
supervisory personnel who relieve himlher from performing nonqualifying duties. 
On appeal, counsel for the petitioner asserts that the record contains sufficient evidence to show that t 
beneficiary has been employed abroad in a primarily managerial capacity. In support of this assertic 
counsel submits a brief and additional evidence. In the brief, counskl provides that the beneficiary is one 
four shareholders of the foreign entity, "which has between 380 - 400 employees and has offices located 
Korea, China, and the United States." Counsel further states that the foreign entity's "manufacturing facili 
in Korea has 120 employees and its Chinese-factory has 400 employees." Counsel provides that the foreil 
entity's website "states that the company has 380 employees . . . ." Counsel later states that the foreign entir] 
staff comprises "more than 500 employees." 
Counsel discusses the beneficiary's educational background. Counsel further provides that the beneficiary " 
not only a member of the board of directors . . . but he manages various divisions of the [foreign entity] 
Counsel quotes previously submitted letters that discuss the. beneficiary's duties abroad. Counsel states th 
"the beneficiary is not only the Manager (which the Koreans call Director) of the Sales Department, but I 
has in the past, also managed the Manufacturing Department. His department has been instrumental 
opening markets for the Korean Company in the United States, china, Australia, and Europe. This cannot t 
done without having a department that studies the demographics, she market, the competitors, and then has 
sales team that enters that country's markets to make the sales." Counsel states that "[tlhe Sales Departmen 
under the direction of the beneficiary put together a very comprehensive' business plan for its Nevac 
operations. The beneficiary was provided with names of companies, contact names, research on the5 
companies, etc. which he then reviewed, analyzed, interviewed and finally selected to be the Korea 
WAC-02-057-5 1785 
Page 6 
company's sales representatives in three regions of North AFerica. The beneficiary, through his Departn 
from Korea, approached the appropriate person and achieved the signing of a contract which provides 
their Backpack will be included as a product in its Christmas catalogue." 
Counsel concludes by asserting that "[tlhe documents leave no doubt that this beneficiary operates at a sel 
level within the company." Counsel references three contracts, signed by the beneficiary in 2C 
reflecting that companies agreed to market the foreign entity's products. Counsel provides that "[a] low It 
executive or non-manager would not have the authority to enter into these contracts. Thus, it is obvious 
the beneficiary has significant authority over the company's policy concerning the direction of its sales, k 
in terms of products to be sold and in terms of the markets to be targeted for the sales of its produc 
Counsel alleges that the beneficiary "has supervised and controlled the work of other supervise 
professional employees and has managed an essential function within the organization." Counsel fin; 
asserts that the director "never reviewed any of the documents submitted with the initial L- I visa packet . . 
Upon review, counsel's assertions are not persuasive. W.hen examining the executive or managerial capac 
of the beneficiary, the AAO will look first to the petitioner's description of the job duties. See 8 C.F 
242()(3)(ii). The petitioner's description of the: job duties must clearly describe the duties to 
performed by the beneficiary and indicate whether,,such duties are either in an executive or manage, 
capacity. Id. In the instant matter, the foreign job description submitted by the petitioner was vag 
providing little insight into the true nature of the (asks the beneficiary performs with his employer abro 
For example, the petitioner states that the beneficiary "sewed as director of the Sales Department where 
obligations included cultivating new markets in the United States, China and Australian markets," yet t 
statement does not indicate what actual tasks the beneficiary performs to carry out this goal. The petitio 
provides that the beneficiary "managed the manufacturing division of the company" and "directed 
exporting of the products sold abroad," yet these statements do not reflect what activities the beneficiary v 
involved in on a daily basis. Specifics are clearly an important indication of whether a beneficiary's duties, 
primarily executive or managerial in nature, otherwise meeting the definitions would simply be a matter 
reiterating the regulations. Fedin Bros. Co., Lrd. v. Suva, 724 F. Supp. 1103 (E.D.N.Y. 1989), am, 905 F. 
41 (2d. Cir. 1990). The actual duties themselves reveal the true nature of the employment. Id. The provid 
job description does not allow the AAO to determine the actual tasks that the beneficiary performed, such tl 
they can be classified as managerial or exelutive in nature. 
The definitions of executive and managerial capacity have two parts. First, the petitioner must show that 1 
beneficiary performs the high level responsibilities that are specified in the definitions. Second, the petitior 
must prove that the beneficiary primarily performs these specified responsibilities and does not spend 
majority of his or her time on day-to-day functions. Champion World, Inc. v. INS, 940 F.2d 1533 (Tab11 
1991 WL 144470 (9th Cir. July 30, 1991). Whether the beneficiary is a managerial or executive employ 
turns on whether the petitioner has sustained its burden of proving that his duties are "primarily" manager 
or executive. See sections IOl(a)(44)(A) and (B$ of the Act. Here, the petitioner fails to document wh 
proportion of the beneficiary's duties abroad Are managerial functions and what proportion arc no 
managerial. The petitioner indicates that the beyieficiary's duties include non-managerial and non-executi. 
tasks, such as "[dlesigning and developing new items and models for bags," "[plarticipating [in] produ 
exhibitions abroad," and "directly assist[ing] o4r design team in designing new products." These tasks a 
I 
WAC-02-057-5 1785 
Page 7 
necessary to produce the foreign entity's products. An employee who primarily performs the tasks necessi 
to produce a product or to provide services is not considered to be employed in a managerial or execut 
capacity. Matter of Church Scientology International, 19 I&N Dec. 593, 604 (Comm. 1988). Though 
petitioner lists the beneficiary's duties as including both managerial and operational tasks, it fails to quant 
the time the beneficiary spends on them. This failure of documentation is important, as the AAO can 
determine whether the beneficiary is primarily performing the duties of a manager or executive. See Reput 
of Transkei v. INS, 923 F.2d 175, 177 (D.C. Cir. 1991). 
Further, the record contains inconsistencies regarding the number of individuals employed by the fore 
entity. In the brief, counsel initially states that the foreign entity has "between 380 - 400 employee 
Counsel then states that the foreign entity's "manufacturing facility in Korea has 120 employees and 
Chinese factory has 400 employees," implying that the foreign entity has at least 520 employees. Coun 
further asserts that the foreign entity's website "states that the company has 380 employees . . . ." Coun 
finally states that the foreign entity has "more than 500 employees." Thus, the brief provides four separ 
and conflicting accounts of the number of individuals employed by the foreign entity. Further, in a lel 
submitted in response to the director's request for evidence, the petitioner stated that "[tlhere are 
employees working out of [the Korean] office." It is incumbent upon the petitioner to resolve 2 
incons~stenc~es in the record by independent objective evidence. Any attempt to explain or reconcile st 
inconsistencies will not suffice unless the petitioner submits competent objective evidence pointing to wh 
the truth lies. Matter of Ho, 19 I&N Dec. 582, 591-92 (HIA 1988). This inconsistency is material, as 
number of employees of the foreign entity has a bearing on the scope of the beneficiary's alleged manage1 
duties. 
Counsel asserts that the beneficiary "has supervised and controlled the work of other supervisory, professio 
employees and has managed an essential function within the organization." Yet, the petitioner has provic 
no documentary evidence or explanation to show the number of subordinates the beneficiary manages, 
their educational backgrounds, supervisory duties, or management responsibilities. The petitioner has I 
specifically identified any employees that the beneficiary supervises, either by name or title. Going on recc 
without supporting documentary evidence is not sufficient for purposes of meeting the burden of proof 
these proceedings. Matter of Treasure Crafr of California, 14 I&N Dec. 190 (Reg. Comm. 1972). Withc 
documentary evidence to support the claim, the assertions of counsel will not satisfy the petitioner's burden 
proof. The assertions of counsel do not constitute evidence. Matter of Obaigbena, 19 I&N Dec. 533, 5 
(BIA 1988); Matter Of Laureano, 19 I&N Dec. 1 (BIA 1983); Matter of Ramirez-Sanchez, 17 I&N Dec. 5( 
506 (BIA 1980). 
Further. in a letter submitted in response to the director's re uest for evidence, the petitioner stated that, "[t] 
management team at the Seoul office is composed of and - Our Chin< 
subsidiary company which is managed by has 400 employees." As this letter does not menti 
the beneficiary as part of the management team, it calls into question the beneficiary's true managemc 
responsibilities. 
The record is not persuasive in demonstrating that the beneficiary has been or will be employed in a primar 
manageriai or executive capacity. The petitioner ~ndicates that it plans to hire additidnal managers a 
WAC-02-057-5 1785 
Page 8 
employees in the future. However, the petitioner must establish eligibility at the time of filing the 
nonimmigrant visa petition. A visa petition may not be approved at a future date after the petitioner or 
beneficiary becomes eligible under a new set of facts. Matter of Michelin Tire Corp., 17 l&N Dec. 248 (Reg. 
Comrn. 1978). Furthermore, 8 C.F.R. 5 214.2(1)(3)(v)(C) allows the intended United States operation one 
year within the date of approval of the petition to support an executive or managerial position. There is no 
provision in CIS regulations that allows for an extension of this one-year period. If the business is not 
sufficiently operational after one year, the petitioner is ineligible by regulation for an extension. In the instant 
matter, the petitioner has not reached the point that it can employ the beneficiary in a predominantly 
managerial or executive position. 
Given the lack of sufficient evidence in the record, the AAO notes that counsel's assertion that the director 
"never reviewed any of the documents submitted with the initial L-I visa packet . . . ." is unfounded. 
Based on the foregoing, the petitioner has not established that the beneficiary will be employed in a primarily 
or managerial capacity, as required by 8 C.F.R. 3 214.2(1)(3)(ii). -For this reason, the appeal will be 
dismissed. 
In visa proceedings, the burden of proving eligibility for the benefit sought remains entirely with the 
petitioner. Section 291 bf the Act, 8 U.S.C. 1361. Here, that burden has not been met. Accordingly, the 
petition will be denied. 
ORDER: The appeal is dismissed. 
WAC-02-057-5 1 785 
Page 5 
the designer of our newest designs, the Skateboard Backpacks which he designed and we 
manufactured after he had performed market research in Extreme Sports in the United States. 
. . . (H]e has represented our company in many conventions where he marketed our products 
throughout the world. 
The letter discussing the .organization of the foreign entity provides: 
Our Korean company has various departments including Trade, Design, Material, and 
Accounting. There are 13 employees working out of this office. The management team at 
the Seoul office is composed bfand our ~hkese subsidiary 
company which is managed by Changil Yang has 400 employees. 
On May 2, 2002, the director denied the petition. The director determined that the petitioner did not establi 
that the beneficiary has been employed abroad in a primarily managerial or executive capacity. Specifical' 
the director stated that: 
The petitioner has provided no comprehensive description of the beneficiary's daily activities 
that shows that the beneficiary is primarily engaged in managing or directing the management 
of a function, department, subdivision, or component of the company. . . . The beneficiary is 
not at a senior level within an organizational hierarchy. The petitioner has not established 
that the beneficiary id managing a subordinate staff of professional, managerial, or 
supervisory personnel who relieve himher from performing &nqualifying duties. 
On appeal, counsel for the petitioner asserts that the record contains sufficient evidence to show that ' 
beneficiary has been employed abroad in a primarily managerial capacity. In support of this assertil 
counsel submits a brief and additional evidence. In the brief, counskl provides that the beneficiary is one 
four shareholders of the foreign entity, "which has between 380 - 400 employees and has offices located 
Korea, China, and the United States." Counsel further states that the foreign entity's "manufacturing faci 
in Korea has 120 employees and its Chinese-factory has 400 employees." Counsel provides that the fore 
entity's website "states that the company has 380 employees . . . ." Counsel later states that the foreign enti 
staff comprises "more than 500 employees." 
Counsel discusses the beneficiary's educational background. Counsel further provides that the beneficiary 
not only a member of the board of directors . . . but he ma?ages various divisions of the [foreign entit: 
Counsel quotes previously submitted letters that discuss the. beneficiary's duties abroad. Counsel states 1 
"the beneficiary is not only the Manager (which the Koreans call Director) of the Sales Department, bul 
has in the past, also managed the Manufacturing Department. His department has been instrumenta 
opening markets for the Korean Company in the United States, china, Australia, and Europe. This canno 
done without having a department that studies the demographics, jhe market, the competitors, and then h, 
sales team that enters that country's markets to make the sales." Counsel states that "[tlhe Sales Departm 
under the direction of the beneficiary put together a very comprehensive' business plan for its Nek 
operations. The beneficiary was provided with names of companies, contact names, research on tl 
companies, etc. which he then reviewed. analyzed, interviewed and finally selected to be the Kor