dismissed L-1A Case: Manufacturing

1I.S. Department of tlomeland Security 
20 Mass. Avr NU'. Km 43042 
U'ash~ngton. DC 20536 
ldentifving data deklod to U.S. Citizenship 
preve~l dearly unwm and Immigration 
invsstoo of nersonal prtwq, Services 
PUBWC COPY 
FILE: 
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(15)(1,) of the Immigration and 
Nationality Act, 8 U.S.C. 5 1101(a)(15)(L) 
ON BEHALF OF PETITIONER: 
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. 
/A I' 
Roberl P. Wiernann, Director 
Administrative Appeals Office 
EAC 03 152 54234 
Page 2 
DISCUSSION: 'The nonimmigrant visa petition was deniedby the Director. Vermont Service Center, and is now 
before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. 
The petitioner. lnktec America Corporation, endeavors to classify the beneficiary as a manager or executive 
pursuant to section 101 (a)(] 5)(L) of the Immigration and Nationality Act (the Act). 8 U.S.C. 5 1 10 l(a)( I S)(L). 
oed in the business of The petitioner claims to be a subsidiary of located in Korea. The petitioner is enga, 
manufacturing and selling printer related products. It seeks to extend the petition's validity and the beneficiary's 
stay for two years' as the U.S. entity's general manager and vice president. The petitioner was incorporated in 
April 2002. 
On September 2, 2003. the director denied the petition and determined that the petitioner failed to establish that 
the beneficiary has been and will be primarily performing managerial or executive duties for the United States 
entity. 
On appeal. the petitioner's counsel asserts that the beneficiary duties include "manag[ini] all aspects of the 
company's day-to-day U.S. activities." 
To establish I,- 1 eligibility under section I Ol(a)(15)(L) of the Act, the petitioner must meet certain cr~teria. 
Specifically. within three years preceding the beneficiary's application for admission into the United States, a 
qualifying organization must have e~nployed the beneficiary in a qualifying managerial or executive capacity, or 
in a specialized knowledge capacity, for one continuous year. Furthermore, the beneficiary must seek to enter the 
United States temporarily to continue rendering his or her services to the same employer or a subsidiary or 
affiliate thereof in a managerial, executive, or specialized knowledge capacity. 
In relevant part, the regulations at 8 C.F.R. $ 314.2(1)(14)(3) state that an individual petition filed on Form 1-1 29 
shall be acconipanied by: 
(i) Evidence that the petitioner and the organization which employed or will employ the 
.alien are qualifying organizations as defined in paragraph (I)(I)(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. 
A visa petition under section 10 /(a)(] S)(L) which involved the opening of a new office may be extended by filing 
a new Form 1-129. accompanied by the following: 
(A) -Evidence that the United States and foreign entities are still qualifying organizations as 
defined in paragraph (I)(l)(ii)(G) of this section; 
1 
Although the Form 1-129 indicated that the petitioner would like to extend the beneficiar~'~ stay from June 1. 
2002 until May 3 1. 2009. the April I, 2003 letter indicated that the petitioner intended to extend the beneficiary's 
stay until May 3 1,2005. 
EAC 03 152 54234 
Page 3 
(€3) Evidence that the United States entity has been doing busine5s.a~ defined in paragraph 
(I)(l)(ii)(H) of this section for the previous year; 
(C) A statement of the duties performed by the beneficiary for the previous year and the 
duties the beneficiary will perform under the extended petition; 
(D) A statement describing the staffing of the new operation. including the number of 
employees and types of positions held accompanied by evidence of wages paid to employees 
when the beneficiary will be employed in a managerial or executive capacity: and 
(E) Evidence of the financial status of the United States operation. 
The issue in this proceeding is whether the beneficiary has been and will be primarily performing executive 
or managerial duties for the United States entity. Section I Ol(a)(44)(A) of the Act, 8 1J.S.C. Ij 1 101(a)(44)(A), 
provides: 
The term "managerial capacity" means an assignment within an organization in which the 
employee primarily- 
I. manages the organization, or a department. subdivision. function, or component of the 
organization; 
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; 
... 111. 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, arid 
iv. exercises discretion over the day-to-day operations of the activity or function for which 
the employec has authority. A first-line supervisor is not considered to be acting in a 
manager~al capacity merely by virtue of the supervisor's supervisory duties ~lnless the 
employees supervised are professional. 
Section 101(a)(44)(B) of the Act, 8 U.S.C. 5 1 10 l(a)(44)(B), provides: 
The term "executive capacity" means an assignment within an organization in which the 
employee prirnarily- 
I. directs the management of the organization or a major component or filnction of the 
organization: 
ii. establishes the goals and policies of the organization, component, or function; 
... 
111. exercises wide latitude in discretionary decision-making: and 
iv. receives only general supervision or direction from higher level executives. the board of 
directors, or stockholders of the organization. 
On April 21. 2003, the petitioner filed the Form 1-129. The petitioner described the beneficiary's proposed U.S. 
duties as the following: 
[M]anag[~ng] and direct[i!lg] marketing efforts in the U.S., Canada, Central America and South 
America markets.[The beneficiary] directs a managerial staff of 6 managers/executives/staffs 
both in the U.S. and Korea and direct business development activities. 
?'he petitioner also stated that the beneficiary has over ten years of managerial and executive experience in 
"international marketing, project management, business development and sales." 
In addition. the petitioner submitted an April 1. 2003 supporting letter claiming that the purpose of the petition 
was to extend the beneficiary's stay in the United States "wh~le [the beneficiary] continue the same 
managerial/executive duty in the U.S." 
On May 23, 2003, the director requested additional information concerning a comprehens~ve description of the 
beneficiary's duties in the U.S. and a complete list of the United States employees, their job positions and 
descriptions. The director also requested a breakdown of the number of hours devoted to each of the employee job 
duties and the beneficiary's job duties and an organizational chart. Finally, the director requested a copy of all 
2002 Form W-2's. Form 1099's, W-3's, Form 1096's. and Form 941's for the fourth quarter of 2002 and the first 
quarter of 2003. 
In response, the petitioner described the beneficiary's duties and stated that his primary duties included the 
following: 
Direct all sales and Marketing Personnel. 
Monitor market changes and marketplace needs, competitor's products. technology changes 
and manufacturing processes in order to recognize market opportunities for new and existing 
products and identify market weaknesses. 
Oversees all sales and [mlarketing activities and development for the Domestic and 
international Markets and key accounts are properly managed. 
Determines departmental staffing requirements. defines specific job requirements and 
submits recornmendat~ons for reviews and authorizations. Interviews department candidates. 
determines suitability of candidates and arranges for Illring. Trains personnel. rcviet+s and 
explains work, explains and enforces company rules and regulations. conducts d~sc~pl~nary 
interviews, counsel and coaches employees, appraise performance and recotnmends changes to 
pay or status. 
EAC 03 152 54234 
Page 5 
Participates in the development and implementatio~l of sales and marketing policies, business 
agreements: sales agreement and strategic business alltances. 
Oversees the development of market research programs and provides the support necessary to 
ensure all research is carried out consistent with the product line objectives. 
oversees and directs budgets of all pro~notional marketing and sales plans. 
Oversees all sales performance and sales forecasts. Evaluates the impact of sales performance 
and sales market support and company goals are achieved. 
Directs the support for the product line marketing plans, ensures timely completion of all 
marketing projects and coordinates product launches and sales staff training. 
Travel is required to meet company goals and objectives for Sales and Marketing. 
In addition, the petitioner submitted a position description for its account manager and a breakdown of his hour?. 
The petitioner also submitted an organizational chart indicating that as of June 2, 2003, the following three 
employees were working for the U.S. company: a president (staying in the Korean headquarters), vice-president 
(the beneficiary). and an account manager. The petitioner submitted 2002 W-2's for two emplo)ees, 2002 W-3. 
Form 94 1 for the quarter ending March 3 1,2003. 
On September 2. 2003, the director denied the petition and determined that the petitioner failed to establish that 
the beneficiary has been and will be primarily performing managerial or executive duties for the United States 
entity. The director noted discrepancies regarding the number ot'ernployees and uages paid. The director found 
that the beneficiary was primarily providing the sales and services of the business rather than directing the 
organization. 
On appeal, the counsel asserts that the beneficiary duties include "manag[ingJ all aspects of the company's day- 
to-day U.S. activities." Counsel further claims that the beneficiary "must establish the goals and policies of the 
 company?^ U.S. component and exercise wide latit~ide in decision making receiving only general direction from 
the company's Korean headquarters." Counsel submits supporting documentation along with his brief. 
In a supporting letter, dated September 8, 2003, written by the beneficiary, he explains. 
The reason that the company does not need any day-to-day follow-up sales persons or custolrier 
servicemen 15 we import the products from Korea H.Q., keep them in the warehouse and sell to a 
few wholesale distributors only Which is a way of business strategy to benefit each other. and if 
we sell the products directly to end users or small resellers later, then we must need more sales 
persons and customer service staffs. 
In examining the executive or managerial capacity of the beneficiary. the AAO will looh first to the pct~tioner's 
description of job duties. See 8 C.F.R. 5 214.2(1)(3)(ii). On review, the petitioner has not established that the 
beneficiary has been and will be employed in a primarily executive or managerial capacity. The petitioner's 
descriptions of the beneficiary's proposed U S. duties are vague and do not elaborate how the beneficiary WIII 
primarily serve in a managerial or esecut~ve capacity For example, the petitioner described the beneficiary's 
EAC 03 152 54234 
Page 6 
duties as the following: "[p]articipat[ing] in the developrnent and itnplementation of sales and marheting policies, 
business agreements, sales agreement and strategic business alliances" and "[d]irect[ing] the support for the 
product line marketing plans." However, the petitioner failed to specify the duties that the beneficiary will 
perform or how these duties relate to him serving in a primarily managerial or executive capacity. Specifics are 
clearly an important indication of whether a beneficiary's duties involve specialized knob ledge. otherwise 
meeting the definitions would simply be a matter of reiterating the regulations. See Fedit? Bros Co.. Ltd, v. Su1~1.r. 
724 F. Supp. 1 103 (E.D.N.Y. 1989). afj'd, 905 F.2d 41 (2d. Cir. 1990). 
In addition, the petitioner stated that the beneficiary has "over ten years of managerial and executive experience in 
"international marketing, project management. business development and sales." However, it is unclear how his 
prior experience in the areas of international marketing, business development, and sales relate to serving in a 
primarily managerial or executive position. ?'he petitioner did not explain how these skills apply to his current 
position or demonstrate how specifically he will use these skills. Going on record without supporting 
documentary evidence is not sufficient for purposes of meeting the burden of proof in these proceedings. ibfi~tter 
uf Treasure Crab of California, 14 I&N Dec. 190 (Reg. Comm. 1972). 
Moreover, the petitioner described the beneficiary as "manag[ing] and direct[ing] marketing efforts" and b'[o]versees 
all sales and [mlarketing activities." Since the record indicated that there were only two other employees, a president 
and account manager. neither of which appear to perform the marketing or sales of the company. it appears that the 
beneficiary is selling the products of the company rather than overseeing these sales efforts. Although the beneficiary 
indicated in his September 8.2003 that he "[olversees all sales and [mlarketing activities" and that "there was no need 
for any day-to-day follow-up sales persons or customer servicemen," it is unclear how the beneficiary oversees the 
very services that he provides. An employee who primarily performs the tasks necessary to produce a product or to 
provide services is not considered to be employed in a managerial or executive capacity. Mutter r,f C'h~~rcIz 
Scic?~rologv b~ternational. 19 I&N Dec. 593. 604 (Cornm. 1988). 
Although the beneficiary is not required to supervise personnel, if it is claimed that the beneficiary's duties 
involve supervising employees, the petitioner must establish that the subordinate employees are supervisory. 
professional, or managerial. See § 101(a)(44)(A)(ii) of the Act. On the Form 1-129, the petitloner described the 
beneficiary3& proposed U.S. duties as including "direct[ing] a managerial staff of 6 n~anagers/e~ecutives/staffs 
both in the U.S. and Korea." 
Though requested by the director, the petitioner did not provide a comprehensive description of the account 
manager's duties. Any failure to submit requested evidence that precludes a material linc of inquiry shall be 
grounds for denying the petition. 8 C.F.R. tj 103.2(b)(14). Thus. the petitioner has not established that this 
claimed subordinate employee possesses or requires an advanced degree, such that they could be classified'as 
professionals. Nor has the petitioner shown that this employee supervises subordinate.staff members or manages 
a clearly defined department or function of the petitioner, such that he could be classified as a manager or 
supervisor. Thus. the petitioner has not shown that the beneficiary's subordinate employee is supervisory. 
professional, or managerial, as required by section IOI(a)(44)(A)(ii) of the Act. 
The AAO notes that the record indicates that the petitioner appears to employ two en~ployees as ~nd~cated on the 
2002 W-2's rather than the three indicated on the U.S. organ~zational chart and the si~ indicated on the Form I- 
129. 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. Alatrer of Ho, 19 I&N Dec. 582, 591-92 (BIA 
'EAC 03 152 54234 
Page 7 
1988). Doubt cast on any aspect of the petitioner's proof may, of course, lead to a reevaluation of the reliability 
and sufficiency of the remaining evidence offered in support of the visa petition. hfatter of Ho. 19 I&N Dec. 582, 
591 (BIA 1988). 
Further. 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 IOl(a)(44)(A)(ii) of the Act, 8 U.S.C. 5 1 101(a)(44)(A)(ii). The petitioner described the beneficiary as 
being involved in "inanag[ing] all aspects of the company's day-to-day U.S. activities" and "[M]anag[ing] and 
direct[ing] marketing efforts." If a petitioner claims that the beneficiary is managing an essential function, the 
petitioner must identify the function with speciticity, articulate the essential nature of the function, and establish the 
proportion of the beneficiary's daily duties attributed to managing the essential function. In addition, the pet~tioner 
must provide a comprehensive and detailed description of the beneficiary's daily duties demonstrating that the 
beneficiary manages the function rather than performs the duties relating to the function. I-lere, the petitioner has 
failed to provide a detailed descriptiotl specifqing the duties that the beneficiary will primarily perform for the U.S. 
entity. As previously stated, an employee who primarily perforn~s the tasks necessary to produce a product or to 
provide services is not considered to be employed in a managerial or executive capacity. Mutter of C'lnrrch 
Scientologv Intenlationul, 19 I&N Dec. at 593, 604. In this matter, the petitioner has not provided evidence that the 
beneficiary manages an essential function. 
After careful consideration of the evidence, the AAO concludes that the petitioner failed to establish that the 
beneficiary has been and will be employed in a primarily executive or managerial capacity. For this reason, the 
petition may not be approved. 
Beyond the decision of the director, the record does not contain sufficient evidence that the petitloner has been 
engaged in the regular, systematic, and continuous provision of goods and/or services in the llnited States for tlic 
entire year prior to filing the petition to extend the beneficiary's status. The petitioner submitted insufficient 
evidence to indicate that it has been selling its goods on a regular basis. The initial petition was approved on May 
15.2002, and the petitioner was allowed one year to open the new office. However, it appears as if the business 
was not operating until September 2002 or possibly October 2002, several months after the petition was approved. 
The petitioner submitted a lease indicating that although it was signed on June 6. 2002. ~t would not be effective 
until October 1. 2002. On appeal, counsel claims that although the U.S. business signed a lease in June 2002. the 
company did not occupy the rented space until October 1, 2002 and only began operating "on a day to day basis 
in September 2002." This assertion also raises a question as to the actual date of operation of the petrtioner's 
business since counsel claims on appeal that the U.S. company began operating in September 2002. one month 
prior to occupying its rental space on October 1. 2002. Counsel claims that the beneficiary "had to undergo the 
many necessary activities involved with the establishment of a business office" because the beneficiary \\as 
involved in purchasing equipment and office furniture, hiring personnel, arranging telephone service. and pr~nting 
business cards. The petitioner's telephone bills. listed as Exhibit F. submitted in response to the director's request 
for additional evidence indicated that the earliest telephone call was recorded on November 1 1, 2002.  heref fore. 
since these activities were necessary for ri~nning the business, the AAO is not persuaded that the office was 
operating one month prior to the beneficiary completing these activities. 
Pursuant to the regulation at 8 C.F.R. 5 214.2(1)(14)(ii)(B), the petitioner is expected to submit evidence that it has 
been doing business for the previous year, since the date of the approval of the initial petition. In the instant 
matter. there is insufficient evidence to establish that the petitioner was doing busincss froni May through April of 
2003. It is incumbent upon the petitioner to resolve any inconsistencies in the record by independent objective 
EAC 03 152 54234 
Page 8 
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. hlutfer of lo, 19 I&N Dec. 582, 591-92 (BIA 
1988). Doubt cast on any aspect of the petitioner's proof may, of course. lead to a reevaluation of the reliability 
and sufficiency of the remaining evidence offered in support of the visa petition. h4atrer of No, 19 I&N Dec. 582. 
591 (BIA 1988). For this additional reason the petition may not be approved. 
Another issue not addressed by the director involves the qualifying relationship between the petitioner and foreign 
entity. The petitioner claimed on the Form 1-129 that the U.S. company is a wholly owned subsidiary of the 
Korean company. However, it is unclear who owns and controls the company. The petitioner's 2002 lnternal 
Revenue Service (IRS) Form 1120 corporate tau return reveals that it is not a subsidiary and is not affiliated with 
any other entity. Consequently, it cannot be concluded that the petitioner is a qualifying organization doing 
business in the United States and at least one foreign country. or that it has a qualifying relationship with a foreign 
entity. See 8 C.F.K. 4 214.2(1)(l)(ii)(G). Absent documentary evidence. the petitioner has not establ~shed that the 
U.S entity is a wholly owned subsidiary of the foreign company. Going on record without supporting 
documentary evidence is not sufficient for purposes of meeting the burden of proof in these proceedings. hlcrtter 
of Trewure Crafr of Califorrrr~~, 14 I&N Dec. 190 (Reg. Comm. 1972). Thus. based on the evidence submitted. it 
is concluded that the petitioner has not established that a qualifying relationship exists between the U.S and 
foreign organizations. For this additional reason, the petition may not 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 Sewice Center does not identify all of the grounds for denial in the initial decision. See Sprncer 
Enterpri.tes, Inc. v. United Stutes, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 2001), cfjci. 345 F.3d 683 (9th Cir. 
2003); see also Dor v. INS, 891 F.2d 997, 1002 n. 9 (2d Cir. 1989)(noting that the AAO reviews appeals on a de 
~ovo basis). 
The petition will be denied and the appeal dismissed for the above stated reasons. hith 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. 9 1361. Here. that 
burden has not been met. Accordingly, the appeal will bc dismissed. 
ORDER: The appeal is dismissed