dismissed L-1A Case: Manufacturing

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U.S. Department of Homeland Security
20 Massachusetts Ave., NW, Rm: 3000
.Washington, DC 20529
u.S~ Citizenship
. and Immigration
Services
File: . EAC 05 18853278 Office: VERMONT SERVICE CENTER Date: JAN 3 1 Z•.
INRE: Petitioner:
Beneficiary: "
Petition: Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(l5)(L) of the Immigration
and Nationality Act, 8 U.S.c. § nOl(a)(l5)(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 originall~ decided your case. Any' further inquiry must be made to that office.
www.uscis.gov
EAC 05 18853278
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 and
technical development .manager as an .L-IA nonimmigrant intracompany transferee pursuant to section
101(a)(15)(L) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1101(a)(,15)(L). The petitioner, a
Virginia corporation, states that it was established to ,supply U.S. customers with its parent company's
aluminum brazing products, to investigate new markets, to obtain feedback on customer requirements, and to
provide technical support and service to U.S. customers. The petitioner states that it is a subsidiary of Sun
located in Korea. The beneficiary was initially granted L-1A
classification for a one-year period in order to open a new office in the United States, and the petitioner now ;f
seeks to employ the beneficiary' for three additional years.
. . .
The director denied the p~tition'concluding thatthepetitioner did not ~siablish that.the benefic'iary would be
employed in the United States in a primarily managerial or executive capacity. The directo~ also 'referenced
the regulatory definition of "doing business," but did not issue a determination as to whether the U.S. entity
has been doing business for the previous year, as required by 8 C.F.R. § 214.2(1)(14)(ii)(B).
The petitioner subsequently filed an appeal. The director declined to treat the appeal as a motion and
forwarded the appeal to the AAp for review. On appeal, counsel for the petitioner asserts that the beneficiary
will be employed in a qualifying managerial capacity under the extended petition, specifically, as the manager
of an essential function. Counsel further contends that the evidence submitted, considered with additional
documentation submitted on appeal, establishes that the petitioner has been doing business in the United
States as defined in the regulations. Finally, counsel contends that the beneficiary's knowledge and expertise
qualify him as a specialized knowledge employee as defined at 8 C.F.R. §214.2(1)(1)(ii)(D). Counsel requests
that the denial of the L-1A classification petition be reconsidered, or, alternatively, that the beneficiary be
granted k1B status for a period of two years.
To establish eligibility for theL-i nonimmigra~t visa classification, the petitioner must meet the crit~tia
outlined in section 101(a)(l5)(L) of the Act. Specifically, a qualifying organization must have employed the
beneficiary in a qualifying managerial or executive capacity, 9f 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. § 214.2(1)(3) states that 'an individual petition filed o~ Form I~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 (1)(1)(ii)(G) of this section:
r
. ,
EAC 05 18853278
Page 3
(ii) . Evidence thatthe alien will be employed in an executive, managerial, or specialized
knowledge capacity, including a detailed description of the services to be performed.
(iii) Evidence that .the alien has at least one continuous year of full time employment
abroad with a qualifying organization within the three years preceding the filing of
the petition.
(iv) Evidencethat the alien's prior year of employment abroad was in a position that was
managerial, executive or involved specialized knowledge and that the alien's prior
education, training, and employment qualifies him/her to perform the intended
, services inthe United States; however, the work in the United States need not be the
same work which the alien performed abroad.
The regulation at 8 C.F.R.§ 214.2(l)(14)(ii) also provides that, after one year, a visa petition which involved
the opening of a new office may be extended by filing a new Form 1-129, accompanied by the following:
(A) Eviderice that the United States and foreign entities are still qualifying organizations
as defined in paragraph (l)(1)(ii)(G) of this section; . .
(B) Evidence that the United States entity has been doing business as definedm
paragraph (l)(l)(ii)(HY 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 first issue in the present matter is whether the petitioner established that the beneficiary will be employed
by the United-Statesentity in. a primarily managerial capacity. The petitioner does not .claim that the
beneficiary will be employed in an executive capacity. .
_;'1 .
Section 101(a)(44)(A) of the. Act, 8 U.S.C. § llOi(a)(44)(A), definesthe 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; ..s
EAC 05 188 53278
Page '4
(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 ~noth~r 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 nonimmigrant petition was filed on June 22, 2005. The petitioner indicated on Form 1-129 that it had one. .
.employee and noted that the.beneficiary, as president and technical deyelopmentmanager, would perform the.
.following duties: . /
. Responsible for establishment of other new customers supply systems; Investigation of New
Market for our advanced products; Technical support and service; particularly in the area. of .
Aluminum brazing filler metals, low-temperature brazing filler metals and high-intense
Aluminum alloys; Investigation of the feasibility of technical licensing agreements with U.S"
brazing.
In a letter submitted' in support of the petition, the petitioner stated that the beneficiary's role will c~mbine
"administrative and project 'management functions." The petitioner further described the beneficiary's job
duties as follows:
[The beneficiary] has established the U.S. office .... He will continue to manage all of its
affairs. He will be responsible for building customer relationships based upon his' technical
knowledge of our company's proprietary' and patented products, several of which were
personally developed by [the beneficiary). He will set the sales goals for the organization. In
.short, the essentialcomponent of our organization that he will managing will be our U.S.
Office. '
He will .also be responsible for hiring of additional employees as we grow the office to
. support additional products and sales. See accompanying organization chart, which shows our
plans for adding General Affairs and Procurement, Production and Marketing Divisions.
There are three primary .reasons why this new office will support [the beneficiary's] position
as President and Technical Development Manager: First, the parent company enjoys over $2
million in annual sales, employs 23 persons, and will pay [the beneficiary's] salary....
EAC 05188 53278
Page 5
Second, the parent company already sells over $200,000 a year in products to U.S. customers.
'It will build upon existing sales and existing sales relationship. Logically, by moving
technical know-how and eventually production to the USA, those sales will increase, as U.S.
customers now must rely upon imports from Korea to fill needs, which they can now source
" from the United States.... Third, [the petitioner's] brazing products include a number of
patent processes and products, which gives it a proprietary edge when competing for U.S.
business.
In short.jthe beneficiary] will exercise discretion on a daily basis in managing the affairs of ­
the new office. He qualifies as a manager becausehe Will manage the only U.S. office (an
essential component of the organization), [and] _ will- functionNa senior level within the
organization. Further, within two years, the organization plans to handle, a number, of
'subordinates who will .receive direction from [the beneficiary] in the areas of product
development, marketing, production and procurement.
The petitioner further i'ndi~ated that the U.S. subsidiary was formed for the following purposes:
• Establishment of a supply system for Ll.Sccustomers ... ;
• Investigation of New Markets for our advanced products;
• Technical support and service, particularly in areas involving aluminum brazing filler
metals, low temperature brazing filler metals, and high tensile aluminum alloys;
• Investigation' of customer requirements to advise our factory in Korea on how best to
serve the demands of U.S. customers; arid
• Investigation of the feasibility 'of technical licensing agreements' with U.S. brazing filler
.: manufacturers and eventual joint ventureagreements, as appropriate.
. . . .
The director issued a request for evidence on July 5, 2005, advising the petitioner that it must demonstrate
that the new office in the United States has grown to a point where the beneficiary is primarily engaged in a
managerial or executive capacity. The director instructed the petitioner to submit: (1) evidence of the staffing
ofthe U.S. company, including the number of employees, the duties performed by each employee, and the
management and personnel structures of the firm; (2) if applicable, evidence documenting the number of
contractors utilized and the duties they perforin; and (3) evidence to establish the duties performed by the
beneficiary in the past year,and the duties he will perform if the petition is extended.
In a letter dated' September 6, 2005, the petitioner further described the beneficiary's U.S. position as follows:
[T]he Beneficiary makes all personnel decisions, reviews budgets, sets sales goals, decides on
'which products to pursue, and oversees important Research and Development efforts; The
Beneficiary will continue to manage all of[the U.S. company's] affairs. While he does not
presently have any direct employees in the United States, he is supported by a team of five
technical and project managers with the parent company in Korea. Please see the attached
chart for the list of these essential personnel. They provide critical research and development
. EAC 05 18853278
Page 6
. . .
of brazing through' the actual test and application of products: for customers in the United
States..
The Beneficiary is. also responsible for negotiating and carrying joint 'projects with [the
petitioner's] customers and business partners in the United States.. . . [T]he beneficiary
serves an integral part in thedelivery of our technology .and manufacturing Ofbrazing fillers
to our partners in th~ United States ..
. "
The petitioner provided a list of six employees of the foreign entity identified as the beneficiary's "support
team," and a list of employees of U.S. companies who. are stated to be involved in joint projects with the
petitioner. The petitioner submitted a letter from Delphi Harrison Thermal Systems, which confirms that the
petitioner's group supplies parts for its products. Delphi's representative notes that the beneficiary has visited
Delphi's facilities to "answer questions and provide technical support with regards to the use. oftheir braze
ring parts," and notes that Delphi is working with the beneficiary on new applications for the petitioner's
products. The petitioner also submitted a letter from the President of . , who
confi"rmsthat hi~ company has agreed to market the petitioner's products to its customers in North America.
The director denied the:petition on October 12,2005, concluding that the petitioner had failed to establish that
the beneficiary will be employed in a primarily managerial capacity under the extended petition. The director
observed that the U.S. entity had not hired any employees in the previous year to relieve the beneficiary from
performing the non-managerial.day-to-day operations involved in producing a product or providing a service.
The director further noted that the stated activities of the petitioning company, including establi~hing a supply
system, investigating new markets, investigating customer requirements, and providing technical support and
service, would necessarily be performed by the beneficiary himself, as the petitioner's sole employee .
. On appeal, counsel for the petitioner disputes the director's decision and contends that the beneficiary will
.serve in a managerial capacity as a manager ofanessentiai function of the petitioning company. Counsel
further states:
The Beneficiary IS personally responsible for developing new business ventures and"
negotiating contracts of substantial value as evidenced by the invoices and orders. He is not'
someone who routinely signs contracts within established corporate guidelines. The Service'
concluded that the Beneficiary's duties are akin to functioning as a sales or customer service
representative (i.e., performing the function).
Although the. Petitioner does not have any employees on its payroll other than the
Beneficiary, it has sales agents working as independent contractors under the Beneficiary's
direction and supervision. The Petitioner intends to hire two United States employees in the
next 12 months to meet the demand ofthe growing business in the United States. Meanwhile,
the Beneficiary appoints these sales agents to specific sales territories and monitors the sales
performance. He alsosupervises, informs, supports, and trains the network agents. Although
these sales agents initiate the client contact and introduce the equipment, the Beneficiary
supervises preparation of quotations, follow-up on quotations' and, wherein necessary,
EAC 05 188 53278,
Page 7
negotiates orders either through the agents or directly with the-customer. ... Thereafter, the
Beneficiary liaises closely with the Petitioner's technicians to ensure successful execution of
the orders. The Beneficiary is involved in' a great deal of discretion and high profit/loss
, potential.
The Beneficiary has been and will continue to be responsible for the overall development of
the company's United States operations, including hiring and managing sales representatives
, and marketing staff, negotiating contracts' with contractors and engineers, preparing and
reviewing budgets, preparing monthly business and sales reports, and acting as a liaison with
[the parent company]. Although he is the sole employee of the Petitioner at the moment, the
Petitioner plans to hire two employees in the United States. So far, the Beneficiary has been
directing, negotiating contracts, and' marketing the company's products. Specifically, the
Beneficiary devises and coordinates the implementation of strategies and plans to pursue
market opportunities.
The petitioner cites several unpublished AAO decisions'to stand for the proposition that the nature and level
of sophistication of a petitioner's business and the scope of the beneficiary's authority are key factors in
analyzing which petitions are approvable. '
Alternatively, counsel contends that the beneficiary's experience and expertise qualify him as a specialized
knowledge employee, and requests that the beneficiary be granted L-IB Classification for a two-year period.
In support of the appeal, the petitioner re-submits ,a copy of the Consignment Sales Agreement, between
Delphi and the petitioner, through which the petitioner became a registered supplier for Delphi, and evidence
ofa sales agreement, signed on October 31, 2005, that authorizes another U.S. company, •••••••
(_, to represent the petitioner's products to three specific c~stomers in the North American heat exchange
r .industry. ' v'
, ,
Counsel'sassertions are not persuasive. As a preliminary matter, counsel's request to amend the petition on
appeal and adjudicate the-petitionas a request for L-IB classification is not properly before the AAO. The
regulations at 8 C.F.R. § 214.2(l)(7)(i)(C) state:
The petitioner shall file an amended petition, with fee, at the service center where the original
petition was filed to .reflect changes' in approved relationships, additional qualifying
organizations under a blanket petition,. .change in capacity of employment (i.e. from a
,specialized knowledge position to a managerial position), or any information which would
affect the beneficiary's eligibility under section 101(a)(15)(L) of the Act.
The request to reconsider the original petition on appeal as a petition for L-IB specialized knowledge
classification is, therefore, rejected.
Upon review of the petition and evidence, the petitioner has not established that the beneficiary would be
employed in a primarily managerial capacity under the ,extended petition. When examining the executive or
EAC 05 188 53278
Page 8
managerial capacity of the beneficiary, the AAO will look first to the petitioner's description of the job duties.
See 8 C:F.R. § 2l4.2(l)(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. !d.'
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. § 1101 (a)(44)(A)(i) and (ii). 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 101(a)(44)(A)(ii) of the Act, 8 U.S.C. § 1101 (a)(44)(A)(ii). The term "essential
function" is not defined by statute or regulation. If a- petitioner claims that th~ beneficiary is managing an
essential function, the petitioner must, furnish a detailed position description that describes the duties to be
performed in managing the essential function, i.e. identifies the function 'with specificity; articulates the
essential nature of the function, and establishes the proportion' of the beneficiary's daily duties attributed to .
managing the essential function. See 8 C.F.R. § 2l4.2(l)(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. All 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.
Boyang, Ltd.v. IN.'S., 67F.3d 305 (Table), 1995 WL 576 .839 (9th Cir,1995)(citing Matter of Church
Scientology International, 19 I&N Dec. 593, 604 (Comrn, 1988)). In this matter, the petitioner has not
provided ~vidence that the beneficiary manages an essential function.' '
) . . '.
The position description submitted with the initial petition suggested that the beneficiary would perform
primarily non-managerial tasks necessary to achieve the petitioner's objectives in the United States. the'
petitioner indicated that the beneficiary would establish "new customers supply systems," investigate new
markets for the company's products, provide technical support and services, and "build customer
relationships." The petitioner also submitted correspondence between the beneficiary and the petitioner's U.S.
business associates, which indicate that the beneficiary-is engaged' in gathering customer requirements,
providing technical information regarding the company's products, and quoting prices. The petitioner's
business partners also emphasize their need for the beneficiary to be available to provide technical support for
the petitioner's products. If the primary purpose ofthe .U.S. office is to investigate the US. market and u.S.
customer requirements, to provide technical support for products, and to develop new supply channels for the
foreign entity's projects, and if the beneficiary is the only employee of the U.S. company, it is reasonable to
conclude that he is primarily engaged in marketing, sales, requirements gathering and technical support duties
that do not fall under the statutory definition of managerial capacity. 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'!., 19 I&N Dec. 593; 604 (Comm. 1988).
Although the petitioner stated that the beneficiary will "exercise discretion on a daily basis in managing the
affairs of the new office," manage an essential component of the organization, and function at a senior level
within the organization, the petitioner did not specify what qualifying ~anageiial duties the beneficiary would
EAC 05 188 53278
I Page 9
perform on a day-to-day basis. The fact that the beneficiary 'is the sole employee of the U.S. office and has
been given a managerial job title is insufficient to establish that the beneficiary's actual duties are primarily
managerial in nature.' 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. 1103, 1108 (E.D.N.Y. 1989), aff'd, 905 F.2d 41 (2d. Cir. 1990).
Furthermore, the petitioner emphasized the petitioner's plans to hire additional employees in the areas of
procurement, product development, production' and marketing within two years, the ability of the foreign
entity to continue to support the beneficiary's position, and the U.S: company's anticipated growth to support
its assertion that the beneficiary would be employed in a qualifying managerial capacity under the extended
petition. A visa petition may not be approved based on speculation of future, eligibility or after the petitioner
or beneficiary becomes eligible under a new set of facts. See Matter ofMichelin Tire Corp., 17 I&N Dec. 248
(Reg. Comm. 1978); Matter of Katigbak, 14 I&N Dec. 45,49 (Comm. 1971). The petitioner is no longer a
"new office" and must establish .that it has grown to the point where it is able to support the beneficiary in a
primarily managerial capacity. The regulation at 8 C.F.R. § 2l4.2(l)(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 ispo provision in CIS regulations that allows for an extension of this one-year period.
The director specifically requested that the petitioner clarify the beneficiary's duties, and requested a
description of the duties performed in the past year, and the duties to be performed under the extended
petition. The' petitioner's response to the director's request did not assist in establishing that the beneficiary
will perform primarily managerial duties. The petitioner stated that the beneficiary "makes all the personnel
decisions, reviews budgets, sets sales goals, decides on which products to pursue and oversees' important
Research, and Development efforts." While these duties may potentially have managerial components, the
petitioner does not actually have any personnel, any subordinate employees to prepare budgets for the
beneficiary's review or to perform the company's routine day-to-day financial tasks" a sales staff to achieve
the beneficiary's goals, a market research staff to assist the beneficiary in deciding which products to pursue,
, or aresearch and development staff. Considered in the context of the petitioner's business at the time of filing,
these duties have not been shown to be primarily managerial in nature.
The AAO acknowledges the petitioner's assertions that the beneficiary oversees or works with a research and
development team based in Korea, which is involved in developing and 'testing products for U.S.-based
customers. However, based on the evidence submitted, it is evident that the beneficiary himself is responsible
.for gathering the customers' technical requirements and providing on-going support for the products sold in
the United States. The petitioner has not explained how the Korea-based research and development staff
relieves the beneficiary from the above-referenced market research, requirements gathering, technical support,
' ,
and other non-qualifying tasks. The petitioner has also submitted evidence to establish that the petitioner has
partnered with U.S. companies who will market the foreign entity's and petitioner's products to their own ,
customers. .However, there is, no evidence to suggest that these sales agency agreements would relieve the
beneficiary from performing the majority of the company's sales and marketing tasks. In addition, the. . -
petitioner's business partners have stated that the beneficiary has been providing and will continue to provide
EAC05 18853278
Page 10
I'
technical support for the petitioner's products, On appeal, counsel notes that the beneficiary "supervises
preparation of quotations; follow-up on quotations, and, wherein necessary, negotiates orders either through,
the agents or directly with the customer." Overall the evidence suggests that theberieficiary's role in the sales
.process requires his performance of duties that do not rise to the level of managerial capacity.
Beyond the required description of the job duties, U.S. Citizenship and. Immigration Services (USCIS)
reviews the totality of the record when examining the claimed managerial or executive capacity of a
beneficiary, including 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., In the case of a function manager, where no subordinates
are directly supervised, these other factors may include the beneficiary's position within the organizational
hierarchy, the depth of the petitioner's organizational structure, the scope of the beneficiary's authority and its
impact on the petitioner's operations, the indirect supervision of employees within the scope of the function
managed, and the value of the budgets, products, or services that the beneficiary manages.
Although the petitioner emphasizes the sophistication of the petitioner's business, the beneficiary's discretion
to operate the U.S. office with only general guidance, the high profit/loss potential oftheU.S:operations, and
the importance of the V.S. subsidiaryas ari essential component of the foreign entity, the totality of the record
does not support a conclusion that he will perform primarily managerial duties. The definitions of executive
and managerial capacity have two 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 ofhis 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).
The test is basic to ensure that a person not only has the requisite authority, but that a majority of his or her
duties are related to operational or policy management, not to the supervision of lower-level employees or the
performance of the duties of a non-managerial or non-executive position. "
". >, I '.
The AAO acknowledges that the beneficiary's duties relating to the interaction between the petitioner and the
parent company, establishing budgets and business plans, and playing a key role in decision-making and
major business negotiations c~uld be considered managerial or executive duties. The record suggests that the
petitioner's stage, of development could require the beneficiary's involvement in these activities in a
managerial or executive capacity intermittently, if not on a daily basis. It is reasonable to find that the
beneficiary, as the only employee of the company, does exercise managerial-level authority over the U.S.
company's operations. However, it is evident that the majority of the beneficiary's time, as dictated by the
petitioner's numerous operational and administrative requirements and objectives, is spent on non-qualifying
. duties associated with market and product research, requirements gathering, marketing, developing customer
relationships and sales channels, providing technical assistance and support to customers and business .
; partners, and routine administrative, clerical and.financial tasks inherent in operating any business. There is
no evidence in the record to suggest that every aspect of the petitioner's business is so critical or so complex ...
that it requires the personal attention of a managerial employee.
EAC05l88 53278
Page 11
While performing non-qualifying tasks necessary to produce a product or service will not. automatically
disqualify the beneficiary as long as those tasks are not the majority of the beneficiary's duties, the petitioner
still has the burden of establishing that the beneficiary is "primarily" performing managerial or executive
.duties. Section 101(a)(44) of the Act. Whether the beneficiary is a "function'tmanager turns in part on
whether the petitioner has sustained its burden of proving that his duties are "primarily" managerial. The
record does not establish that a majority of the beneficiary's duties will, be primarily managing an essential. , .
function of the, petitioning organization. While the market investigation, customer requirement gathering and
. relationship-building, marketing, sales and technical support activities undertaken by the US. company may be
critical to the foreigry. organization, the record indicates that a preponderance of the beneficiary's duties will
continue to be personally providing these services, rather than primarily managing the US. marketing, sales, or
technical support activities.
While it is true that a beneficiary employed by a small company or even as .the sole employee of a company
can qualify for L-IA classification, such pet~tioning companies are riot exempt from establishing that the
beneficiary will perform primarily, managerial or executive duties. .The fact that the beneficiary manages a
business, regardless of its size, does not necessarily establish eligibility for classification as an intracompany
transferee in a managerial or executive capacity within the meaning of sections 101(a)(1 5)(L) of the Act. See
,52 Fed. Reg. 5738,5739 (Feb. 26, 1987). The AAO does not dispute that small companies require leaders or'
individuals who plan, forrriulate, direct, manage, oversee and coordinate activities; however the petitioner
must 'establish with specificity that the, beneficiary's duties comprise primarily managerial or executive
responsibilities and not routine operational or administrative tasks.
Generally; a company's size alone, without taking intoaccount the reasonable needs of the organization, may
not be the determining factor in denying a visa to a multinational manager or executive. See § 101(a)(44)(C)
of the Act,' 8 V.S.c.. § 110l(a)(44)(C). In the present matter, however, the regulations provide strict
evidentiary requirements for the extension of a, "new office" petition and require CIS to examine the
organizational structure and staffing levels of the petitioner. See 8 C.F.R.§ 214.2(l)(14)(ii)(D). The
regulation at 8 C.F.R. § 2l4.2(l)(3)(v)(C) allows the "new office" 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 fully operational and:'
does not have sufficient staffing after one. year to relieve the beneficiary from performing primarily
operational and,administrative tasks, the petitioner is ineligible by regulation for an extension.
Whilethe petitioner has explained that it always anticipated that it would need approximately two years to lay
the foundation for its V.S. business, and that it is actually ahead of schedule in that it intends to hire
employees within the next few months, the reasonable needs of the petitioner will not supersede the
requirement that the beneficiary be "primarily" employed in a managerial or executive capacity as required by
the statute. See sectionslOl(a)(44)(A) and (B) of the Act, 8 US.c. § llOl(a)(44). The reasonable needs of
'the petitioner may justify a beneficiarywho allocates 51 percent of his duties to managerial or executive tasks
as opposed to 90 percent, but those needs will not excuse a beneficiary who spends the majority of his ~.r her
. time on non-qualifying duties at the end of the first year of operations.
EAC 05 188 53278
Page 12
Based on the foregoing discussion, it cannot be found that the beneficiary will be employed primarily in a
qualifying.managerial or executive capacity under the extended petition. For this reason, the appeal will be
dismissed. _
On appeal, the petitioner also addresses the issue of whether the U.S. company has been doing business in the
United States for the previous year, as required by 8 C.F.R.§ 214.2(1)(14)(ii)(B). The AAO notes that the
_director referenced the regulatory definition of "doing business" b~t did· not specifically render a
determination on this-issue. The initial L-1A new office approval was granted from July 19, 2004 until July
18,2005.
If a petition indicates that a beneficiary is coming to the United States to open a "new office," it must show
that it is ready to commence doing business immediately upon approval. At the time of filing the petition to
open a "new office," a petitioner must affirmatively demonstrate that it has acquired sufficient physical _
premises to commence business, that it has the financialability to commence doing business in the United
States, and that. it will support .the beneficiary in a managerial or executive position within one year of
approval. See generally, 8 C.F.R. § 214.2(1)(3)(v).· Ifapproved, the beneficiary is granted a one-year period of
stay to open the "new office.'" 8 C.F.R. §214.2(I)(7)(i)(A)(3). At the end of the one-year period, when'the
petitioner. seeks an extension of the "new office" petition, the regulation at 8 C.F.R. § 214.2(1)(14)(ii)(B)
requires the' petitioner to demonstrate that it has been doing business "forthe previous year" through the
regular, systematic, and continuous provision of goods or services. See 8 C.F.R. § 214.2(1)(1)(ii)(H)( defining
the term "doing business"). . . - -
The petitioner indicated on Form 1-129 that the company's gross and net aruma] income is "N/ A." In a letter
submitted in support of the petition on June 22, 2005, the petitioner indicated that it anticipated sales of
$210,000 "through the rest of 2004," and sales of $1 million in 2005. The petitioner submitted: its bank
statements for the months of December 2004 through April 2005; a consignment sales agreement entered into
by the petitioner on February 23,2005; and three commercial invoices issued by the petitioner in April 2005.
The petitioner also submitted several purchase orders issued by U.S. companies to the foreign entity, dating
back to December,2003.
- -
Although the director issued a request for evidence on July' 5, 2005, he did not specifically request additional
-evidence to establish thatthe U.S. company had been doing business for the previous year. As noted above,
_the director did notissue a determination on this issue.
On appeal, counsel nevertheless argues that the petitioner is a qualifying organization that has been doing
,business in the United States. Counsel contends that "L-1 petitions that do not adequately demonstrate 12
'. months of business activity for the United States .office may be adjudicated under the new office standard set
forth in Section 214.2(l)(1)(ii)(H)." Counsel further asserts: "the Petitioner has sufficiently demonstrated both
the financial strength of the overseas parent company and a business plan projecting its future growth in the
United States." Counsel relies on the parent company's December 31, 2002 financial report, the total cost.of
goods manufactured in Korea in 2002, and evidence of purchase orders and invoices from 'clients in the
United States showing that the foreign entity's products have been exported to the U.S~
', r
EAC 05 18853278
Page 13
, . ~
The petitioner also submits' newevidence In the form of the foreign entity's 2004 financial statements and
export Jist ; a letter , dated November 2, 2005, from the Vice President of ., who confirms
that his company has been conducting business with the petitioner; a sales agency agreement between the
petitioner and ' ; , dated October 31, ,2005; and copies of previously submitted documents .
Upon review , the AAO finds insufficient evidence to establish that thepetitioner has been doing business for ,
the .previous year as defined by the regulations. Contraryto counsel's assertions , the petitioner will not be held ,
to the "new office" standard simply because it cannot not provide evidence .of its business activities for its
" ,
firsttwelve months of operations. The only provision that allows for the extension of a "new office" visa
petition requires the .petitioner to demonstrate that it is .staffed and has been "doing business" in a regular,
.systematic, and continuous manner for the previous year . ' 8 C.F.R. § 214 .2(1)(l4)(ii). The petitioner cannot
rely on its parent company's 2002 financial statements and- its business plan to, meet the requirement that the
U.S. entity was in factdoing business for the required time period.
Whileit appears that the petitioner's parent company has:been selling its .products directly to U.S . customers
prior to the formation of the U.S~ company.fhere is no,documentation linking the Ll.Sccompany to any sales '
transactions . prior to .February 2005. The petitioner has not adequately explained how the foreign entity 's
financial statements and documentation establish that' the U.S. company has been actively doing business
since July 2004. Further , the petitioner has not provided any evidence of the financial status of the U.S .
company , as required by 8 C.F.R. 2l4.2(1)(l4)(ii)(E). Going on record without supporting documentary
evidence is not sufficient for,purposes of meeting the burden of proof In these proceedings. Matter ofSoffici,
22 I&N Dec. at 165 : ' The minimal evidence ofthe U.S. entity's business activities leads the ~O to conclude
that the U.S '. company has riot been doing business for the previous year. For this additional reason, the appeal
will be dismissed.
An application or petition that f~ils to comply with the technical requirements of the 'law may be denied by the '
AAO even 'if the Service Center does not identify.all ofthe grounds for denial in the initial decision. ' See
Spencer Enterprises , Inc . v. United States, 229 F . Supp. 2d 1025, 1043 (E.D. Cal. 2001), aff'd. 345 F.3d 683
(9th Cir. 2003); see also Dor v. INS, 891 F.2d 997 , 1002n. 9 (2d Cir. 1989)(noting that the AAO reviews
appeals on ede novo basis) .
The petition will be denied and the appeal dismissed for the above stated reasons , with each cOllsid~red as an
independent and ' aiteman ve 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. ,§ 1361.
Here , that burden hasnot been met. ' , ' . "
ORDER: The appeal is dismissed.